FREEMIUM SERVICES AGREEMENT
This FREEMIUM SERVICES AGREEMENT („FSA“) is entered into by and between Recombee, s.r.o. with a principal place of business at Rybná 716/24, Staré Město, 110 00 Praha 1, Czech Republic („Recombee“), and the entity you represent, or, if you do not designate an entity in connection with a services purchase or renewal, you individually ("Customer"), (each a „Party“ and collectively the „Parties“). This Agreement is effective as of the date Customer clicks to accept the Agreement (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do not click to accept. This Agreement governs Customer's access to and use of the Service. For an offline version of this Agreement please contact Recombee.
This FSA shall control the delivery of Services (as defined below) to Customer by Recombee.
Recombee shall provide to Customer the API to upload data (users, items and interactions) into the Recombee Network and access recommendations. Recombee also provides software clients and applications simplifying access to Recombee services; these clients are provided without any guarantee.
3. LIMITATIONS OF FREE SERVICE
The number of monthly recommendation requests is limited to 100000 (the “Free Tier”). Additional requests will result in an error message (HTTP 429). There are no SLA guarantees for the freemium service, i.e. Recombee does not gurantee the Services’ availability, uptime or response time, nor customer support response time. Contact Recombee to order standard or high availability services or if you need to process more recommendation requests.
Customer must have an Account and a Token to use the Services, and is responsible for the information it provides to create the Account, the security of the Token and its passwords for the Account, and for any use of its Account and the Token. If Customer becomes aware of any unauthorized use of its password, its Account or the Token, Customer will notify Recombee as promptly as possible. Recombee has no obligation to provide Customer multiple Tokens or Accounts.
5. TERM & TERMINATION
This FSA shall commence on the Effective Date and shall continue until Recombee or Customer decides to terminate it. Recombee may immediately terminate the FSA upon written notice. Customer shall send Recombee the termination request in order to delete the account and data within 30 days period. If Customer attempts to breach FSA by performing activities abusing Recombee free services, all suspicious accounts will be deleted immediately.
6. TERMINATION FOR INACTIVITY
Recombee reserves the right to terminate the Services for inactivity, if, for a period exceeding 180 days Recombee has not served any Recommendation requests for the Customer.
7. USE OF SERVICES
The Services are to be used solely for Customer’s internal business purposes and are not for resale to any third party or use on a service bureau basis. In order to provide the Services, Customer may be required to connect to Recombee’s systems or network („Recombee Network“). Customer shall only use the Recombee Network for lawful business purposes. Customer shall not use or allow use of the Recombee Network in a manner that interferes with the use of the Recombee Network by Recombee or by any other authorized, third party user. Unless explicitly agreed otherwise, Customer shall have sole responsibility for the expenses associated with deployment of any hardware or software necessary to access the Recombee Network.
8. FEES & PAYMENT TERMS
Recombee Services are provided to Customer without charge up to the Fee Tier. Free service is provided without any warranties and can be discontinued or terminated anytime.
9. SERVICE CHANGES
Recombee may make upgrades or changes to the Services without prior notice to Customer.
10. USE OF CUSTOMER DATA
Recombee will not access or use Customer Data, except as necessary to provide the Services to Customer. The Parties have agreed that personal data processing is not part of the Services; should Customer want Recombee to process any personal data, a separate agreement needs to be negotiated.
Each party ("receiving party") agrees to keep and maintain the confidentiality of the other party’s ("disclosing party") confidential information and to disclose it only to its personnel who:
- Have a need to know (and then only to the extent that each such person has a need to know);
- Are aware that the confidential information should be kept confidential;
- Are aware of the receiving party's undertaking in relation to such information in terms of this agreement; and
- Have been directed by the receiving party to keep the confidential information and have undertaken to keep and maintain the confidentiality of the confidential information or have signed appropriate confidentiality and non-disclosure agreements.
The receiving party undertakes that if it becomes aware that there has been, as a result of or in the course of the performance of this agreement, unauthorised disclosure or use of the disclosing party’s confidential information, it shall promptly bring the matter to the attention of the disclosing party in writing.
The receiving party shall, on termination of this agreement or on written request therefore by the disclosing party, immediately deliver to the disclosing party all correspondence, documents, specifications and property belonging to the disclosing party which may be in the receiving party’s possession or under its control.
The obligations of the parties in relation to the maintenance and non-disclosure of confidential information in terms of this agreement do not extend to information that:
Is disclosed to the receiving party in terms of or pursuant to the implementation of this agreement but at the time of such disclosure, such information is known to be in the lawful possession or control of the receiving party and not subject to an obligation of confidentiality;
Is or becomes public knowledge otherwise than pursuant to a breach of this agreement by the receiving party;
Becomes available to the receiving party from a source other than the disclosing party or personnel of the disclosing party;
Is required by the provisions of any law, statute or regulation, or during any court proceedings, or by the rules or regulations of any recognised stock exchange to be disclosed and the receiving party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure of or to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the disclosing party prior to making such disclosure; or
Is, at the time of disclosure, in the public domain.
The provisions of this clause shall survive the termination or expiration of this agreement.
12. USE OF NAME & TRADEMARKS
Neither Party shall use the trademarks or service marks of the other Party in any advertising, promotional or marketing materials without such other Party’s prior written consent, provided, however, that Recombee may identify Customer as a customer of Recombee without prior approval.
Notwithstanding the above, Customer agrees that it shall participate in either or both a press release and case study with Recombee announcing Customer’s use of the Services („Press Release“ and „Case Study“). Either or both the Press Release and the Case Study shall be prepared by Recombee and shall be subject to approval by Customer, such approval not to be unreasonably withheld. Recombee may use Customer’s name and trademark or service marks on Recombee’s web site and on other tangible and electronic marketing materials, provided that Recombee shall comply with such reasonable trademark or service mark usage guidelines as provided by customer from time to time.
13. REPRESENTATIONS, WARRANTIES & DISCLAIMERS
Each Party represents and warrants that it has the requisite corporate power and authority to enter into this FSA and to carry out the transactions contemplated hereunder. Customer represents and warrants that it will comply in all respects with the export restrictions applicable to any hardware, software and technology delivered to the Customer and will otherwise comply with the applicable laws and regulations in effect during the term.
RECOMBEE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR SECURE AND DOES NOT WARRANT THE SERVICES AGAINST MALFUNCTION OR CESSATION DUE TO CESSATION OR MALFUNCTION OF ANY INTERNET SERVICE PROVIDER OR ANY OF THE THIRD PARTY NETWORKS THAT FORM THE INTERNET. EXCEPT AS SET FORTH HEREIN, ALL SERVICES ARE PROVIDED „AS IS“ AND „AS AVAILABLE“ AND RECOMBEE MAKES NO WARRANTIES TO CUSTOMER OR TO ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, END USERS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BY WAY OF EXAMPLE, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR RESULTS TO BE OBTAINED FROM USE OF THE SERVICES, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
14. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOST DATA, OR LOST EQUIPMENT, ANY WEBSITE OR NETWORK DOWNTIME, COST OF PROCURING SUBSTITUTE SERVICES OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER ARISING, WHICH ARE RELATED TO THIS FSA AND THE PROVISION OF SERVICES AND PRODUCTS HEREUNDER, EVEN IF RECOMBEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. GOVERNING LAW
The FSA shall be governed by, and construed in accordance with, the laws of the Czech Republic, without regard to its conflict of law principles that would apply the law of another jurisdiction.
Any Dispute arising out of or relating to this FSA, or the breach thereof, will be settled by final and binding arbitration administered by the Arbitration Court, affiliated to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic. The arbitration will be heard and determined by a panel of three (3) arbitrators. The arbitrators will have exclusive authority to resolve any and all disputes relating to procedural and substantive questions of arbitrability, including but not limited to, choice of venue and choice of law issues, and the formation, interpretation, applicability, scope, and enforceability of this agreement to arbitrate. Each Party will bear its own costs relating to such arbitration, and the Parties will equally share the arbitrators’ fees. The arbitration and all related proceedings and discovery will take place pursuant to a protective order entered by the arbitrators that adequately protects the confidential nature of the Parties’ proprietary and Confidential Information. In no event will any arbitration award provide a remedy beyond those permitted under this FSA, and any award providing a remedy beyond such will not be confirmed, no presumption of validity will attach, and such award will be vacated.