Terms of Service
THESE TERMS OF SERVICE (“Terms of Service”) set forth the terms and conditions by which Recall InfoLink, Inc, an Idaho corporation having its principal place of business at 2812 North 28th Street, Boise, Idaho 83703 (“Recall InfoLink”), will provide You (“Service Accessor”) access to and use of certain cloud-based software-as-a-service offerings (“Services” as defined below) for the purposes of managing product recall processes.
Please read these Terms of Service carefully. By clicking the “I Accept” button in reference to these Terms of Service at www.recallinfolink.com, You are agreeing that these Terms of Service are a legally binding agreement between the Service Accessor and Recall Infolink and that You are an authorized signatory for the Service Accessor and are not signing in your individual capacity (“Acceptance”).
“Improvements” means any improvements to Our Software and does not include Your Content or Your Content Improvements.
“Internal Purposes” means Your use of Our Software within the scope of Permitted Use that does not involve direct or indirect: (a) hosting or selling or marketing the capability to host Our Software for use by or for third parties, or (b) distribution of any kind of Our Software to any third party.
“Our Datastream” means the datastream or its particular form, structure, or protocols exchanged between Our Software and Our server and/or associated functional websites and generated through the course of Your use or otherwise sent by Our server and/or associated functional websites, and/or any algorithms or techniques originating from Our Software.
“Proprietary Information” means any and all of Our discoveries, developments, designs, improvements, inventions, blueprints, structures, Our Software, any updates and/or upgrades to the Our Software, other software, processes, computer programs, know-how, data, techniques, formulas, strategies, budgets, forecasts, projections, unpublished financial statements, costs, fee schedules, client and supplier lists, client and prospective client databases, access codes and similar security information and procedures, techniques, methodologies and performance strategies, and all patents, copyrights, maskworks, trade secrets and other proprietary rights thereto; provided, however, that the term “Proprietary Information” shall not include any of the foregoing that is in the public domain other than as the result of a breach of Your obligations under these Terms of Service, and shall not include Your Content or Your Content Improvements.
“Our Software” or “Recall InfoLink Client Software” means all or any portion of Our Recall InfoLink Client Software or any of Our cloud-based hosted service access software, in machine-readable, human-readable, intermediate, executable, linkable, or editable form, together with any other software materials (including, but not limited to, libraries, header files, and data files), together with any updates or upgrades thereto provided by Us or otherwise made available to You, but not including any open source software as otherwise indicated in the software distribution packaging.
“Permitted Use” means Your use of Our Software for all of its intended uses through Our server(s) in the automated communication, response tracking, inventory quantification, and report generation involved with product recall processes. This use includes the review of content provided by other businesses for recall purposes, and the automated communication of said content internally, and to one or more other business units and/or entities.
“We,” “Us,” “Our” or “Ours” refers to Recall InfoLink.
“Service Accessor,” “You” or “Your” refers to the entity or company accessing the Services pursuant to these Terms of Service.
“Services” means; cloud-based access to Our Software to be used solely for Permitted Uses; periodic Improvements to Our Software; technical-support in the use of Our Software provided by email, phone and fax to Your employees and Your customers accessing Our Software for Permitted Uses; and training and documentation in support of Your employees’ and Your customers’ Permitted Use of Our Software.
“Your Content” means (a) the content of the serialized communication recorded through and/or from Our Software, or (b) any configuration or instruction file provided by You to Us or to Our Software. Your Content may be explicitly identified in a separately, mutually executed schedule of Content
“Your Content Improvements” means any improvements to Your Content.
2. Terms of Service.
2.1 Service Grant. We grant You a non-exclusive, nontransferable, limited right to access and use Our Software for Your recall process business purposes within the scope of Permitted Use. We will provide You with access to Our Software over a secure internet connection. All rights not expressly granted to You in these Terms of Service are reserved by Us. No right, title, interest or license to any trademark, service mark, logo or any other intellectual property of Ours is granted to You by these Terms of Service.
2.2 Service Restrictions. You will not: (a) use Our Software for any purpose or in any manner other than that expressly set forth in Section 2.1 above, absent prior written consent from Us; (b) sell, resell, rent, lease, encumber, transfer, license, distribute, redistribute, copy, reproduce, display, modify or share Our Software; (c) disassemble, decompile, or reverse engineer Our Software or Our Datastream, inclusive of that
between Our server and associated functional websites, or otherwise attempt to discover Our source code and/or Our other trade secrets; (d) use or allow the use of Our Software in contravention of any federal, state, local, foreign or other applicable laws, rules or regulations; (e) make any modification, adaptation, improvement, enhancement, translation, or derivative work of or to Our Software; (f) remove, alter or obscure any proprietary notices (including copyright notices) of Ours or Our suppliers in Our Software; or (g) use Our Software for purposes for which it is not designed. To the extent of any right You may have with respect to Our Software
under the European Directive 91/250 on Legal Protection of Computer Programs (14 May 1991, OJ 1991 (122/42)) as implemented in the relevant jurisdiction, nothing contained in these Terms of Service will be interpreted to exclude or prejudice any such right.
2.3 Ownership of Your Content. Your Content, Your Content Improvements and all rights therein shall be Your exclusive property.
2.4 Ownership of Our Software and Improvements. Our Software and Improvements shall be Our exclusive property. To the full extent permitted by applicable law, any Improvements You make will be “works made for hire,” as defined in Title 17 of the United States Code. To the extent any Improvements are not “works made for hire,” You hereby assign to Us, without separate compensation, all right, title and interest in and to the Improvements together with all associated United States and foreign patents, copyrights, trade secrets, publishing rights and other proprietary rights, including, without limitation, the rights of registrations and renewal. In addition, You hereby waive and release any and all moral rights and rights of restraint that You may possess in or to any Improvements.
2.5 Non-disparagement. During the Term of these Terms of Service and for one (1) year thereafter, You agree that You shall not, in any communication with a third party (including, but not limited to, the press or any other media or any customer, client or supplier), criticize, ridicule or make any statement which disparages or is derogatory Us, Our affiliates, any of Our (or Our affiliates’) directors or senior officers, or Our Software. During such same term, We agree that We will not, in any communication with a third party (including, but not limited to, the press or any other media or any customer, client or supplier), criticize, ridicule or make any statement which disparages or is derogatory to You or any of Your directors or senior officers.
2.6 Service Fees. For the use of Our Software during the Term of these Terms of Service, You agree to pay service fees as defined in Appendix A: Service Fees (the “Service Fees”).
2.7 Payment. The Service Fee payment will be due and payable within ten (10) days of the date of the Effective Date. Any other payments due and payable to Us under these Terms of Service will be due and payable within ten (10) days of the date of Our invoice. Overdue amounts will be subject to a late payment charge at the lesser of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law. Further, You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) We incur to collect any amount which is not paid when due.
2.7.1. We accept payments of Service Fees quoted in Appendix A in foreign currencies at the equivalent value in U.S. dollars based on the exchange rate at the time of Acceptance as quoted by the U.S. Federal Reserve at www.federalreserve.gov. Fluctuations in the exchange rate of greater than seven and one-half percent (7.5%) in either direction at the time Service Fees are due and payable will result in a Service Fee adjustment equivalent to the variance and result in setting a new baseline Service Fee for the calculating the variance going forward.
2.8 Taxes. The Service Fee and any other amounts payable to Us under these Terms of Service do not include any duties, taxes, fees or other amounts assessed or imposed by any governmental authority other than taxes imposed on Our net income. You will pay or reimburse Us for all such amounts upon demand or provide certificates or other evidence of tax exemption.
3. PROPRIETARY RIGHTS.
3.1 Confidential Relationship. Your relationship with Us creates a relationship of confidence and trust between You and Us. You shall hold the Proprietary Information and Our Software in confidence and shall protect them with utmost care. You shall not disclose, copy, or permit any person to disclose or copy any of Our Proprietary Information or Our Software, and You shall not use any of Our Proprietary Information or Our Software, except as provided for in these Terms of Service.
3.2 Trade Secrets. Any and all of Our trade secrets will be entitled to all the protections and benefits under the Idaho Trade Secrets Act codified at I.C. § 48-801 et seq., and any other applicable law. If any information that We deem to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for purposes of these Terms of Service, such information nevertheless will be considered Proprietary Information for purposes of these Terms of Service. You hereby waive any requirement that We submit proof of the economic value of any trade secret.
4. Term and Termination.
4.1 Term of Service. Your right to use Our Software shall begin upon Acceptance by You of these Terms of Service (the “Effective Date”) and shall continue for a term of one (1) year (the “Term”).
4.2 Service Renewal. The Term will be renewed automatically for successive one-year terms at the anniversary of the Effective Date.
4.3 Termination upon Breach. If You at any time should breach any material provision of these Terms of Service, and You fail to cure such breach within ten (10) business days of written notice thereof, We
shall have the right to terminate these Terms of Service (effective immediately upon notice of failure to cure). We shall have the right, in addition to any other legal and equitable remedies, to terminate these Terms of Service forthwith. Your right to cure a material breach shall not apply to any breach by You of Section 2.2 or Section 3.1, which such termination shall be effective immediately upon notice thereof.
4.4 No-cause Termination. Either party, upon 30-day written notice, can terminate this agreement.
4.5 Effect of Termination. Upon termination, all service rights under these Terms of Service shall terminate, and You shall immediately cease using Our Software, remove all copies, if any, of Our Software from Your computer(s) and/or server(s) and return to Us any and all copies thereof. You shall promptly return to Us any and all materials in Your possession or control that contain or represent Proprietary Information. The provisions of Sections 2.2, 2.3, 2.4, 2.7, 2.8, 4.5, 4.6 and Articles 1, 3, 5 and 6 shall survive any expiration or termination of these Terms of Service for any reason.
4.6 Infringement Remedies. Should any of Our Software become, or in Our opinion be likely to become, the subject of a claim of intellectual property infringement or trade secret misappropriation, We may, at Our sole option and expense, either: (i) procure for You the right to continue using Our Software; (ii) replace or modify Our Software as We deem necessary; or (iii) terminate these Terms and Service. The provisions of this Section 4.6 are Your sole and exclusive remedy with respect to any claim or potential claim of infringement brought by any third party.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Disclaimer of Warranties. Except as expressly provided in these Terms of Service, Our Software, associated websites, associated services and Your Content, as well as any of the contents of the foregoing, are provided “as is, as available” without warranty of any kind, either express or implied, including without limitation, any implied warranty of quality, performance, non-infringement, merchantability or fitness for a particular purpose.
5.2 Limitation of Liability. We shall in no event be liable for any indirect, special, incidental, exemplary, consequential or punitive damages arising out of the use of or inability to use Our Software and/or Your Content, or the website, even if We have been advised of the possibility of such damages, including, without limitation, lost profits or revenue, loss of use of Our Software or Your Content, or website, loss of data, failure to store, nondelivery or untimely delivery of any information or data, or costs of recreating lost data, or the cost of any substitute equipment or program. You shall have the sole responsibility to protect adequately and backup data and/or equipment used in connection with Our Software or Your Content or website.
5.3 Indemnification by You. You will defend, indemnify and hold Us, Our agents and owners harmless from and against any and all losses, claims, damages, liabilities, obligations, costs and expenses (including reasonable attorneys' fees) arising from or based upon: (i) product recalls involving or conducted by You; (ii) Your use of Our Software, associated websites, associated services or Your Content; or (iii) any claim that the Your Content infringes or violates the rights of any third party, any breach of Your representations or warranties, or any act or omission of You or anyone acting on Your behalf.
5.4 Force Majeure. If and to the extent that a party’s performance of any of its obligations pursuant to these Terms of Service is prevented, hindered or delayed by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, strikes, labor disputes or any other similar cause beyond the reasonable control of such party (each, a “Force Majeure Event”), then the non-performing, hindered or delayed party shall be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay, including, without limitation, through workaround plans or other means. The party whose performance is prevented, hindered or delayed by a Force Majeure Event shall promptly notify the other party in writing of the occurrence of a Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event.
6. MISCELLANEOUS PROVISIONS.
6.1 Federal Government Purchases. This section applies to all acquisitions of Our Software by or on behalf of the federal government, including purchases by prime contractors or subcontractors at any tierunder any contract, grant, cooperative agreement, cooperative research and development agreement (“CRADA”), other transactions (“TO”), or other similar activity of the federal government. With Your acceptance of delivery of access to Our Software, You agree that access to Our Software qualifies as a “commercial item” or “commercial computer client software” within the meaning of the acquisition regulation that applies to this procurement.
6.2 Export Restrictions and Compliance with Export Laws. Our Software is of U.S. origin for purposes of U.S. export control laws. Our Software is available only as a service for You to access on the condition that You will not download, export, re-export, or remove Our Software from the U.S. except in full compliance with all applicable laws and regulations of the U.S. and/or any other relevant jurisdiction. Without limiting the foregoing, none of Our Software shall be downloaded or otherwise exported or re-exported (a) into Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria or (b) to any person on the U.S. Treasury Department's list of Specialty Designated Nationals or on the United States Commerce Department's Table of Denial Orders.
6.3 General Data Protection Regulation (GDPR) . Recognizing that Our Software will contain and process personal data, the following provisions are included in this agreement to access Our Software:
6.3.1. Our Software will only process personal data provided by You at Your direction for recall notification and processing purposes.
6.3.2. Our Software will not process personal data provided by You for any marketing or unauthorized purposes.
6.3.3. Our Software includes acceptable practices and technical measures for data security.
6.3.4. Our management follows, implements, reviews and monitors data security practices and technical measures to insure proper protection of personal information.
6.3.5. Your agreement to these Terms of Service provides Acceptance of outsourcing to reputable companies certain processing functions that include the processing of personal information to include but not be limited to sending e-mails, phone calls, sms text messages and facsimile messages.
6.3.6. We will make available to You, at your request, the return, compilation or review of all personal data you have provided for processing purposes.
6.4 Unauthorized Use. Unauthorized access to Our website or Our Software is a breach of these Terms of Service and a violation of the law. You agree not to access Our Software or associated website by any means other than through the interface that is provided by Us for use in accessing Our Software or the associated website. You agree not to use any automated means, including without limitation, agents, robots, scripts or spiders, to access, monitor or copy any part of Our website or Our Software except those automated means that We have approved in advance and in writing.
6.5 Other Fee-Based Services. Some of the additional services provided by Us may require You to pay a fee in excess of the Service Fee, as described in the specific conditions included where those services are offered or in the corresponding Service Agreement for those services. You agree to pay all fees and charges that You incur. Unless otherwise noted, all currency references are in U.S. dollars. We may, upon notice if required by applicable laws, at any time change the amount of, or basis for determining, and fee or charge, or institute new fees or charges. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. At Our discretion, termination of such paid service may simultaneously be considered termination of these Terms of Service pursuant to Section 4.
6.6 Governing Law and General Provisions. These Terms of Service will be governed by the laws of the State of Idaho, excluding the application of its conflicts of law rules. In any action or proceeding to enforce rights under these Terms of Service, the prevailing party will be entitled to recover costs and attorneys' fees. Venue for any action or proceeding under these Terms of Service shall be in a federal or state court of competent jurisdiction located in Ada County, Idaho.
6.7 Injunctive Relief. You agree that We are entitled, in addition to any other remedy available to it at law or in equity, to apply to any court of competent jurisdiction, without the need for posting any bond or other security, for an immediate order to restrain or enjoin any breach and otherwise specifically to enforce the provisions of these Terms of Service.
6.8 Changes to Terms of Service. We reserve the right to modify theses Terms of Service from time to time in Our sole discretion. You agree to be bound by these Terms of Service, as modified.
6.9 Transfer. We may assign these Terms of Service at any time without Your consent. You may not assign these Terms of Service under any circumstances.
6.10 Waiver; Severability. No term or provision hereof shall be deemed waived, and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. If any part of these Terms of Service is found void and enforceable, it will not affect the validity of the balance of these Terms of Service, which shall remain valid and enforceable according to its terms.
6.11 Remedies. Except as otherwise expressly provided in these Terms of Service, each and all of the rights and remedies provided herein, and each and all of the remedies allowed at law and in equity, will be cumulative, and the exercise of one right or remedy will not be exclusive of the right to exercise or resort to any and all other rights or remedies provided in these Terms of Service or at law or in equity.
6.12 Construction of Terms of Service. It is agreed by the parties hereto that these Terms of Service have been carefully considered by the parties; therefore, these Terms of Service shall be enforced, interpreted and construed without regard to its authorship, and no inference shall be drawn by the parties or any third party including any court, by virtue of its authorship.
6.13 Authority to Act. Recall InfoLink and You each represents to the other party that they are authorized to enter into Acceptance of these Terms of Service on behalf of its company.
6.14 Electronic Signature. These Terms of Service are acknowledged by the parties to be fully executed with the equivalent of electronic signatures upon Acceptance. In addition, upon Acceptance a copy of these Terms of Service will be transmitted to the email address You have provided Us. Both transmitted copies of, and the electronic version of, these Terms of Service as posted on Our website at www.recallinfolink.com
are acknowledged by the parties to be the equivalent of original documents pursuant to section 6.8 above.
6.15 Notices. Any and all notices, invoices, payments or other communications provided for herein shall be in writing and may be personally served, telecopied or sent by either overnight courier or U.S. mail and shall be deemed to have been given when delivered in person, upon transmission (and confirmed receipt) if sent via facsimile, upon receipt if sent via overnight courier (evidenced by such courier’s records), or three (3) business days after deposit in the U.S. mail, registered or certified, with postage prepaid and properly addressed. For the purposes hereof, the addresses of the parties (until notice of a change thereof is delivered as provided herein) shall be as follows:
to Us: to You:
Recall InfoLink, Inc _____________
2812 North 28th Street _____________
Boise, Idaho 83703 _____________
Attn: ____________ _____________
with a copy to: with a copy to:
Hawley Troxell _____________
877 W. Main St., Ste 100 _____________
Boise, Idaho 83702 _____________
Attn: Brad Frazer _____________
Appendix A – Service Fees
Recall InfoLink’s Recall Ready™ Service Fee is an annual fee for services designed to keep your organization Recall Ready™ including 24/7/365 access to our industry leading cloud-based recall management software, training, support and fully documented mock recalls.
RECALL READY™ SERVICE FEE:
$2,000 for 2 Mock Recalls/location per 12-month period with 24/7 support including auto-setup with support.
$2,000 administrative fee for each live recall of any size.
RECALL RESPONSIVE™ SERVICE FEE:
$3,000 setup if setup is guided by Recall InfoLink vs. auto setup at no charge.
$2.50 per B2B customer in Distribution list of each recall event, minimum $50 (i.e. 1-20 customers is billed at $50).
$0.10 per B2C customer in the Distribution List of each recall event for customers in the event designated as “Consumer” that receives only e-mail or only sms/text notification.
$0.20/customer in the Distribution List of each recall event for customers in the event designated as a “Consumer” that receives e-mail notification that may be followed by telephone or sms text message reminder notifications.
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