RECAST SOFTWARE, INC.
Terms of Service
Effective Date: August 1, 2019
These Terms of Service (together with any documents referred to in them) (collectively, these “Terms) are between You and Recast Software, Inc. (“Recast,” “we,” “us,” or “ours”). These terms govern your license and use of the Software you download or purchase from Recast. Capitalized terms not otherwise defined when first used herein have the meanings set forth in Section 11.
1. Grant of License
a. Community Software Subscription. Recast grants to You a nonexclusive, nontransferable, limited license, without the right to sublicense, to Use and access the Community Edition Software, including all Updates, for Your internal business purposes at no cost. The Community Edition may include a Trial Period of Recast Enterprise Software.
b. Enterprise Software Subscription. Conditioned upon compliance with these Terms, Recast grants to You a nonexclusive, nontransferable, limited license, without right to sublicense, to Use and access the paid version of Recast’s Enterprise Software, including all Updates, for Your internal business purposes only, along with related Documentation.
c. Copies of Software. Notwithstanding any other provision of these Terms, You are permitted to make copies of the software under the following conditions.
i. You limit Your Use of the Software to Use on devices You own or lease; and
ii. Unless otherwise provided in the Documentation, make and Use additional copies solely for backup purposes, where backup is limited to archiving for restoration purposes.
d. Your Representations. You represent and warrant that (i) You are the owner or an authorized user of the Device on which the Software is installed and any User Data used in conjunction with the Software; (ii) You shall use the Software only for lawful purposes, and will comply at all times with all applicable federal, state, and local laws and regulations; and (iii) You shall use the Software only for Your business needs, and for no other commercial or third party use.
e. Restrictions. You specifically agree not to: (i) transfer, assign or sublicense Your license to another person or entity and You acknowledge that any attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to, or otherwise modify or adapt the Software, or to create derivative works based upon the Software, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction; (iv) use or permit the Software to be used for commercial use (beyond its general use by You in the operation of Your business) or to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Recast; (v) disclose, provide, or otherwise make available trade secrets contained within the Software in any form, to any third party without the prior written consent of Recast; (vi) use any automated or manual process to interfere with, modify, or attempt to interfere with or modify the Software or (vii) use the Software to develop any software application or similar products and services. You acknowledge and agree that Recast reserves the right to remotely prevent access to and/or use of the Software in the event that (i) Recast becomes aware, from You or otherwise, of unauthorized access or use of the Software by any third party using any user name, password, or other login credentials of You, or (ii) Your rights under these Terms are suspended or terminated upon 30 days prior written notice.
f. Automatic Updates. Recast may automatically use the Internet to search for Updates for the Software. Such Updates may install automatically. Recast does not warrant that Modifications will be compatible with Your Device.
2. OWNERSHIP AND RIGHTS OF USE
a. Ownership. Recast and/or its licensors, if applicable, own all intellectual property rights in and to the Software, including, without limitation, all copyrights in the Software (including the look and feel), trademarks, trade dress, and trade secrets. You acknowledge that the Software contains trade secrets of Recast, its suppliers, or licensors, including but not limited to, the specific internal design and structure of individual programs and associated interface information. Your rights to Use the Software are limited to those expressly granted by these Terms. You are granted no implied licenses to any other intellectual property rights other than as specifically granted herein.
b. Open Source and Third Party Software. The Software may contain or be distributed with third party software covered by an open source license that supersedes the licensing terms of these Terms to the extent required by that open source license. All open source software is provided WITHOUT ANY WARRANTY INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
c. Proprietary Notices. You agree to maintain and reproduce all copyright, trademarks and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software.
d. Suggestions. Recast shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate in the Software any suggestion, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation, features or functionality of the Software.
e. Access to the Software. To use the Software, You must provide a Device and software necessary to use the Software, including, but not limited to, an operating system compatible with the Software. You are responsible for ensuring that Your Device and software do not disturb or interfere with the operation of the Software. If any Update requires changes in Your Device or software, You must implement these changes at Your own expense. Unless explicitly stated otherwise, any Updates shall be subject to these Terms.
f. Delivery. Recast will deliver the initial access credentials that allow You to create an account through the Website and download the Enterprise Software. The Enterprise Software will be deemed accepted by You upon delivery of your access credentials. Community software will be deemed accepted by You upon download.
3. ACCOUNTS AND AUTHORIZED USERS
a. Website Account Credentials. Your e-mail address in combination with Your password, allows Recast to verify Your identity. UNLESS CAUSED BY RECAST’S NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, RECAST EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY LOST, STOLEN, OR DELETED USER DATA, INCLUDING ANY DATA DELETED REMOTELY DUE TO THE COMPROMISE OF YOUR PASSWORD, YOUR ACCOUNT CREDENTIALS OR ACCESS TO YOUR E-MAIL ACCOUNT.
b. Authorized Use. You are responsible for ensuring all Users are authorized to access the Software, and are informed of, and abide by, the terms and conditions of the licenses granted in these Terms.
c. The Software License Key. The Software may require activation via a license key. Software requiring activation by a license key will require an Internet connection to complete activation. Activation via a license key will result in the computer installed with Software to transmit the license key to Recast via the Internet for activation of the Software.
4. TERM AND TERMINATION
a. Term. The term (“Term”) will commence upon acceptance of these Terms and remain in effect until terminated. Termination of your Recast Community Software will remain in effect until you uninstall the software and destroy all copies of the Software.
b. Recast Enterprise Subscription Term. The initial term of Your Recast Enterprise Software subscription will commence on the date in which Recast provides You with initial access credentials to its Website and will continue for the period of time specified in the Sales Order. Except as otherwise specified in the applicable Sales Order, all Subscription Services shall automatically renew for an additional twelve (12) months, unless either party gives the other 45 days notice of non-renewal before the end of the relevant Subscription Term. Pricing (not including prior term incentives) during any such renewal term shall automatically increase by 5 percent over the prior term unless We provide written notice of an additional pricing increase at least 90 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal. All renewals are also considered the “Subscription Term.”
i. Termination for Cause. If either party breaches any of the terms or conditions of these Terms and fails to cure such breach within 30 days after written notice thereof, the other party shall have the right to terminate these Terms (including all Sales Orders) with written notice.
ii. Automatic Termination. On termination or non-renewal, these Terms shall automatically terminate.
iii. Effect of Termination. On termination of these Terms, without limiting either party’s rights and remedies at law or in equity, but subject to any exclusive remedies herein:
1. Software licenses shall immediately terminate and You shall, and shall ensure all Users shall, immediately cease use of all Recast Enterprise Software.
2. Upon termination, You shall destroy all copies of the Software.
3. Termination of these Terms for any reason shall not affect past sums due under these Terms.
iv. Surviving Provisions. Sections 9 (Indemnification), 4.c.iii (Effect of Termination), 4.c.iv (Surviving Provisions), 5 (Fees), 2 (Ownership), 6 (Confidentiality), 10 (General Provisions), and (11) Definitions, and any terms stated to survive in Sales Order shall survive any termination of these Terms.
a. Subscription Fee. You shall pay all fees specified in Sales Order hereunder. All fees are quoted and payable in United States dollars unless specified differently in the Sales Order. All payment obligations are non-cancelable and fees paid are not refundable.
b. Invoicing & Payment. You are responsible for providing complete and accurate billing information. Invoices are made in advance, either annually or in accordance to alternative billing frequency specified in the Sales Order. Invoices are due net 30 days unless stated otherwise in the Sales Order. Any terms and conditions on any purchase order shall not be deemed a part of these Terms or binding on Recast.
c. Overdue Charges and Software Suspension. If You owe any amount that is more than 30 days overdue, then at Recast’s discretion, a late fee equal to the minimum of 1.5% of the outstanding balance per month, or maximum rate permitted by law, may be applied until the date paid. Recast, without limiting its other rights and remedies, may suspend access to Recast Enterprise Software upon written notice until amounts are paid in full if any amount due is more than 60 days overdue. Recast will not exercise its rights in 5.c if You are cooperating to promptly resolve a payment dispute.
d. Taxes. Unless otherwise stated, Recast fees and expenses do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with its purchases hereunder.
a. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.
b. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (a) the Receiving Party shall only use the Confidential Information for the purposes set forth in these Terms, (b) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) to protect the Confidential Information of the Disclosing Party, and (c) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, vendors, contractors, and agents who need such access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
c. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7. Warranty. THE SOFTWARE FURNISHED BY RECAST AND ACCEPTED BY YOU ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY RECAST. RECAST DOES NOT WARRANT THAT THE SOFTWARE OR ASSOCIATED DOCUMENTATION WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. RECAST EXPRESSLY DISCLAIMS ANY WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE PRODUCTS OR DEVICES THAT MAY COMMUNICATE WITH THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES SO THIS EXCLUSION MAY NOT APPLY TO YOU.
8. Limitation of Liability. IN NO EVENT WILL RECAST BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF CAPITAL OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OR THE SOFTWARE FURNISHED OR TO BE FURNISHED BY RECAST UNDER THESE TERMS OR THE USE THEREOF, EVEN IF RECAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE AGGREGATE LIABILITY OF RECAST UPON ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THESE TERMS OR THE SOFTWARE FURNISHED OR TO BE FURNISHED BY RECAST UNDER THESE TERMS WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE LICENSE FEE ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM, LEGAL ACTION OR DAMAGE UNDER ANY SALES ORDER TO WHICH THE CLAIM RELATES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT FULLY APPLY TO YOU. No claim, regardless of form, which in any way arises out of these Terms, may be made or brought by Customer or Customer’s representatives more than two (2) years after the basis for the claim becomes known to Customer.
Recast makes no representations that the Software is appropriate for use in other locations outside of the United States. If You use the Software in or from locations outside the United States You are responsible for compliance with all applicable laws and regulations.
9. Indemnification. Recast shall indemnify, defend and hold You harmless from and against any and all third party claims against You alleging that the use of the Services as permitted herein by You constitutes a misappropriation of any trade secret under US law or an infringement of any US patent, copyright, trademark or other intellectual property right subject to (i) You giving Recast sole control of the defense of such claim, (ii) You giving Recast all reasonable assistance and cooperation in the defense of such claim, at Recast’s expense for such assistance, and (iii) You not settling any claim without Recast’s prior written consent. If the Software (except for Third Party Products therein) is held to, or may, constitute a misappropriation or infringe upon any US patent, trademark, copyright, trade secret or other intellectual property of any third party, and Your use of such Software is enjoined or interfered with in any manner, Recast shall, at its option and sole expense, within the shortest time period practical, either procure for You the right to continue using such Software, or modify or replace such Software with a non-infringing Software of equivalent or better functionality or terminate these Terms with no penalty to You. The remedies in this subsection (b) ARE YOUR SOLE REMEDY AND RECAST’S EXCLUSIVE LIABILITY FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT.
10. GENERAL PROVISIONS.
a. Enforcement/Choice of Law/Choice of Forum. Every provision of these Terms will be construed, to the extent possible, so as to be valid and enforceable. If any provision of these Terms so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision will be modified by a court of competent jurisdiction to be valid and enforceable while maintaining as close as possible the intent of the parties as indicated by the wording of these Terms or, if the provision cannot be so modified, deemed severed from these Terms, and all other provisions will remain in full force and effect. The laws of the State of Minnesota, excluding its conflicts of law rules, govern these Terms and Your use of the Software. Your use of the Software may also be subject to other local, state, national, or international laws. Any action between the parties will be venued in a state or federal court situated within the state of Minnesota, and You irrevocably submit Yourself to the personal jurisdiction of such courts for such purpose. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms, nor does any enactment of the Uniform Computer Information Transactions Act.
c. No Joint Venture. These Terms shall not be construed as creating or constituting any partnership, joint venture or agency relationship between the parties.
d. Assignment and Resale. Recast may assign its rights and obligations under these Terms but Your rights under these Terms are not assignable or transferable. You agree not to sell or resell the Software or any portion thereof. These Terms will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
e. Customer Identification. You agree that Recast may identify You as a customer and use Your logo(s) solely for the purpose of customer identification in sales presentations and/or marketing materials.
f. No Third Party Beneficiaries. No third-party beneficiaries are intended or shall be construed as created by virtue of these Terms.
g. Export Compliance. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use these products for any purposes prohibited by United States law.
h. US Government End Users. The Software and Documentation are “commercial items,” as defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and Defense Federal Acquisition Regulation Supplement (“DFAR”) 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which these Terms may be incorporated, Government end users will acquire the Software and Documentation with only those rights set forth in these Terms. Any license provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.
a. “Community Software” means all free software Recast makes available to download from its Website, which includes the Right Click Tools Community edition.
b. “Device” means Your computer, tablet, smartphone, or any other electronic device.
c. “Documentation” as used in these Terms means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) specifically pertaining to the Software and made available by Recast with the Software.
d. “Enterprise Software” means all software Recast makes available to download for a fee from its Website, which includes the Right Click Tools Enterprise edition.
e. “Sales Order” means the ordering documents, in the form provided by Recast, that are entered into between You and Recast from time to time to detail the Software purchased. Sales Orders shall be deemed incorporated herein by reference upon execution, and include additional details for Software, such as the pricing and term.
f. “Software” means the object or binary code of the Recast Community or Enterprise software and any other code We make available to download from the Website.
g. “Trial Period” is up to 30 days.
h. “Updates” means any and all bug fixes, error corrections, improvements, modifications, revisions and updates to the Recast Software then-currently licensed that Recast makes available to You.
i. “Use” or “Using” means to download, install, activate, access, or otherwise use the Software.
j. “User” means the individuals who are authorized by You to use the Software. Users may include employees or contractors registered by name as registered users.
k. “User Data” means all content, data, or other information stored, shared, collected, or otherwise submitted by You or the Software.
l. “Website” means the domains, including www.recastsoftware.com, that allow Users access to the Software from the supported browsers. Additional domains may be added from time to time.