RECOMBEE TERMS OF SERVICE

LAST UPDATED: May,1 2019 EFFECTIVE DATE: May,1 2019

These Terms of Service (“Terms”) govern subscription to and use of Recombee’s services. These Terms are 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 you ("Subscriber"), (each a „Party“ and collectively the „Parties“).

If you register for a free trial of Recombee’s services, the applicable provisions of these Terms also govern that free trial and are effective as of the date you click to accept the Terms (the "Effective Date"). If you are acting on behalf of a legal entity you represent (e.g. a company), you represent and warrant that:

I. you have full legal authority to bind Subscriber to these Terms;
II. you have read and understand these Terms; and
III. you agree, on behalf of Subscriber, to these Terms.

If you do not have the legal authority to bind Subscriber, please do not click to accept, access or use Recombee’s services.

For an offline (printed) version of Terms please contact Recombee.

1. GENERAL TERMS OF SERVICE

These Terms are made for the purpose of controlling the delivery of Recombee’s Services and granting a subscription to use Recombee’s Recommendation Service, support and other services (as defined below) to Subscriber.

Recombee shall provide recommendation services (hereinafter “the Services”) to Subscriber. The recommendations are made by a set of algorithms that run upon Subscriber’s request on Recombee’s infrastructure (hereinafter “the Recommender”). Instructions on how to use the Recommender correctly are listed on docs.recombee.com (hereinafter “the Documentation”). In order to provide the Services, Subscriber may be required to connect to Recombee’s systems or network („Recombee Network“).

Recombee shall provide to Subscriber the API to upload data (such as users, items and interactions) into the Recombee Network and access recommendations. Recombee also provides software clients and applications simplifying access to the Services; these clients are provided without any guarantee.

Recombee shall maintain the Documentation in a state that allows for a correct and effective use of the Recommender. Subscriber shall follow the Documentation; Recombee shall not be responsible for any loss or troubles resulting from Subscriber’s failure to follow the Documentation.

Recombee shall provide Subscriber with an access to the Admin User Interface (located at admin.recombee.com) through which Subscriber may manage the Services.

Upon the access to the Admin User Interface an Organization is created. At Recombee, an Organization refers to an established method for connecting a Subscriber (user) and the Services. Recombee has no obligation to provide Subscriber with multiple Organizations.There is a possibility to invite multiple Collaborators to one Organization.

Subscriber agrees not to use the Services for processing of personal data. Should Subscriber be interested in personal data processing, a separate agreement would be negotiated.

1.1. USE OF SERVICES

The Services are to be used solely for Subscriber’s internal business purposes and are not for resale to any third party or use on a service bureau basis.

Subscriber shall only use the Recombee Network for lawful business purposes. Subscriber shall not use or allow the 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.

Subscriber shall use the Services only for recommendation services. The use of the Services for other purposes will be considered as an abuse of Terms and may lead to an account suspension.

Unless explicitly agreed otherwise, Subscriber shall have sole responsibility for the expenses associated with deployment of any hardware or software necessary to access the Recombee Network.

Each Party retains all right, title and interest in and to its intellectual property. No licenses will be deemed to have been granted by either Party to any of its intellectual property. Subscriber agrees not to modify, copy, or reverse engineer the Recommender or any other software used by Recombee in the provision of the Services.

2. FREE SERVICES

2.1 FREE TRIAL

If Subscriber registers at Recombee’s websites for a free trial ("Trial Plan") of the Services, it will automatically start a Trial Plan period of the Services on the day of registration. Recombee will make the Services available to Subscriber on a trial basis free of charge until (a) the end of a thirty-day trial period (the “Trial Period”), (b) the start of any paid subscription for the Services, or (c) termination by Recombee at its sole discretion. If, at the end of the Trial Period, Subscriber does not sign up for a paid subscription of the Services, their account will be automatically downgraded into a Free Plan mode. The Trial Period lasts 30 days unless Recombee agrees, in its sole discretion, to extend it.

All Trial Plans are provided without warranty of any kind. Recombee may terminate or immediately suspend a Trial Plan at any time and for any reason (or no reason).

Recombee does not hold any obligation or liability for the damage that could arise from using a Trial Plan, along with any obligation or accountability with respect to Subscriber’s data (including limited liability of Free Services mentioned in section 12.1).

2.2 FREE PLAN

In case of Free Plan the traffic is limited to: 100,000 monthly recommendation requests; 20,000 monthly active users and 2 databases. Subscriber will be notified about reaching the limit and additional requests will result in an error message (HTTP 429).

There are no SLA guarantees for the Free Plan Subscribers, i.e. Recombee does not guarantee the Services’ availability, uptime or response time, nor Subscriber support response time.

All Free Plans are provided without warranty of any kind. Recombee may terminate or immediately suspend a Free Plan at any time and for any reason (or no reason).

Recombee does not hold any obligation or liability for the damage that could arise from using the Free Plan, along with any obligation or accountability with respect to Subscribers’s data (including limited liability of Free Services mentioned in section 14.1).

3. PAID SERVICES

In case of paid subscription to Recombee services, Recombee guarantees that the Services will meet the following standards (calculated per calendar year):

I. 99.5% uptime for the Recommender;
II. Average response time less than 500 milliseconds;
III. 95% Admin User Interface availability;

Recombee shall use commercially reasonable efforts to provide the Services without any service outage. Should the Services not meet the guarantees, Recombee shall provide Subscriber with an appropriate discount.

3.1 USAGE LIMITS

The Services ecompase specific usage limits, e.g., every subscription needs to be bound to a single domain name (Organization) and specified usage limits that are agreed in a relevant Order Form (Simplified usage limits information can be found at: https://www.recombee.com/pricing.html). If the Services are accessed in a way that exceeds the specified contractual traffic limites or storage or bandwidth limit a new offer will be automatically generated for Subscriber’s approval.

4. TERM & TERMINATION

4.1 FREE SERVICES

The contractual relationship shall commence on the Effective Date and shall continue until Recombee or Subscriber decides to terminate it. Recombee may immediately terminate it upon written notice, e.g. if Subscriber breaches the Terms by abusing the Services.

If Subscriber wishes to terminate the contractual relationship, he shall send Recombee a termination request and Recombee will close Subscriber’s account and delete Subscriber’s data within 30 days. Subscriber can terminate Recombee Service subscription by email to support@recombee.com. After Recombee receives the termination notice, the Services will be provided to Subscribers throughout the remainder of the then-current term. Subscriber’s Organization will be suspended effective as of the final day of the then-current term.

4.2 PAID SERVICES

The contract is entered into for an indefinite term. If not stated otherwise in the customized offer, either Party may terminate this contract with one month notice without giving any reason.

The notice shall be delivered by email to support@recombee.com and the notice period shall commence on the first day of the calendar month following the month in which the notice is delivered. If Subscriber attempts to breach Terms by performing activities abusing the Services, all suspicious accounts will be deleted immediately.

5. TERMINATION FOR INACTIVITY

5.1 FREE SERVICES

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 Subscriber.

6. FEES & PAYMENT TERMS

6.1 FREE SERVICES

Recombee’s Free Services are provided to Subscriber without charge..

6.2 PAID SERVICES

If not agreed otherwise, the Services are available on a subscription basis (for simplified version of Recombee pricing please visit: https://www.recombee.com/pricing.html). Subscriber agrees to cover the relevant subscription fees based on the agreement with the customized offer in consideration for the access rights created to Subscriber and the services provided to Subscriber by Recombee.

In not agreed otherwise, Recombee shall issue an invoice for the Services at the end of each calendar month. Subscriber shall pay the invoiced amount to Recombee’s bank account within 30 days upon its receipt. The invoice shall contain all prescribed requirements of a tax document set forth by relevant legal regulations.

In case the invoice does not contain the prescribed requirements or Subscriber does not agree with the invoiced items, he is obliged to communicate its reservations to Recombee within the invoice’s maturity period. Failing to do so or paying the invoice is considered acceptance of the invoiced amount. In case of legitimate reservations, a new maturity period commences as of the day of delivery of a new or corrected invoice.

In cases in which the relevant fees are past the due date, Recombee may charge 10% p.a. Interest on late payment and will be entitled to terminate it’s Services provided to you and suspend your Organization, along with the Authorised User Access towards the Service, up until the amount that is needed to be compensated is fully paid.

By providing your credit card details to Recombee, you approve Recombee to give authorisation to our third party full-stack payment platform Braintree (https://www.braintreepayments.com/) to store and keep you card details and charge your credit card for the subscription fees and overage fees that are associated with the basic terms and future renewal terms.

These credit card charges will be done in accordance to billing frequencies which are set in the applicable Order Form. In the case Subscriber chooses payment other than credit card in the Order Form, Recombee sends the invoice or PayPal payment request in accordance to billing frequencies which are set in the applicable (usually monthly, in the beginning of the month for the traffic used in the previous month).

All fees are exclusive of any tax. Should the Value Added Tax (VAT) or any other tax or duty be applicable to the services, Recombee shall calculate it on the invoice according to the applicable laws and it shall be paid by Subscriber.

Recombee reserves the right to change the fees for the Services and to introduce new charges and fees, with a thirty (30) days prior notice to you (which can be sent through an email). If you (Subscriber) would like to make any enquiries, you should get in touch with Recombee’s Subscriber support department by email to support@recombee.com.

Third Party Fees. Your credit card issuer may charge you a foreign transaction fee or other charges for the payments. Subscriber is responsible to check with the credit card issuer regarding these details.

7. SERVICE CHANGES

7.1 FREE SERVICES

Recombee may make upgrades or changes to the Services without prior notice to Subscriber.

7.2 PAID SERVICES

Recombee may make upgrades or changes to the Services which will not materially diminish the functionality of the Services without prior notice to Subscriber. In the event that a change to the Services would, in Recombee’s reasonable discretion, materially affect Subscriber, Recombee shall provide Subscriber with an advanced notice.

8. USE OF SUBSCRIBER DATA

FREE & PAID SERVICES

Recombee will not access or use Subscriber Data, except those necessary to provide the Services to Subscriber. The Parties have agreed that personal data processing is not part of the Services; should Subscriber want Recombee to process any personal data, a separate agreement needs to be negotiated.

9. CONFIDENTIALITY

9.1 FREE SERVICES

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:

I. Have a need to know (and then only to the extent that each such person has a need to know);
II. Are aware that the confidential information should be kept confidential;
III. Are aware of the receiving party's undertaking in relation to such information in terms of this agreement; and
IV. 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 an 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 obligations of the parties in relation to the maintenance and non-disclosure of confidential information in terms of this Terms of Service does not extend to information that:

Is disclosed to the receiving party in terms of or pursuant to the implementation of this Terms of Service but at the time of such disclosure, such information is known to be in 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 Terms of Service 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 Terms of Service.

9.2 PAID SERVICES

Whereas one Party may in the course of mutual collaboration disclose to the other Party trade secrets or other confidential information, the receiving Party agrees to keep all disclosed information confidential and use it only for the agreed purpose.

The duty of confidentiality does not apply to any information that

I. is publicly available;
II. is published or made publicly available by a third party after having been disclosed to the receiving Party, provided that the third party did not obtain the information through any breach of confidentiality on the part of the receiving Party;
III. was already known to the receiving Party before the execution of the Agreement, provided that the receiving Party was not at that time bound by a duty of confidentiality;
IV. the receiving Party obtained from a third party that had acquired it in compliance with the law and without breaching any duty of confidentiality;
V. is required by public authorities according to the law, provided that the receiving Party has taken all reasonable steps to oppose, prevent or limit the disclosure.

The Parties shall ensure that all of their personnel are bound to respect the duty of confidentiality to the extent stipulated in this Terms of Service. A Party may only be released from the duty of confidentiality by a written declaration from the Party whose information the duty protects. The duty of confidentiality shall survive the termination of the Terms of Service.

10. 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 Subscriber as a Subscriber of Recombee without prior approval.

Notwithstanding the above, Subscriber agrees that it shall participate in either or both a press release and case study with Recombee announcing Subscriber’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 Subscriber, such approval not to be unreasonably withheld. Recombee may use Subscriber’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 Subscriber from time to time.

11. REPRESENTATIONS, WARRANTIES & DISCLAIMERS

11.1. FREE AND PAID SERVICES

Each Party represents and warrants that it has the requisite corporate power and authority to enter into this Terms of Service and to carry out the transactions contemplated hereunder. Subscriber represents and warrants that it will comply in all respects with the export restrictions applicable to any hardware, software and technology delivered to Subscriber and will otherwise comply with the applicable laws and regulations in effect during the term.

11.2 FREE SERVICES

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 Subscriber 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.

12. LIMITATION OF LIABILITY

12.1 FREE SERVICES

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 TERMS OF SERVICE AND THE PROVISION OF SERVICES AND PRODUCTS HEREUNDER, EVEN IF RECOMBEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.2 PAID SERVICES

Recombee shall not be liable for any failure in provision of the Services resulting from:

I. Subscriber’s misuse or abuse of the Services;
II. Non-performance or negligent or unlawful acts or omissions by Subscriber or Subscriber’s agents or suppliers;
III. Unavailability of Subscriber’s network or the network of the party conducting the query, including that resulting from telecommunications failures;
IV. Problems or delays associated with third party networks or networks outside Recombee’s control;
V. Force majeure events or denial-of-service attacks or similar malicious attacks on Recombee’s infrastructure or Subscriber, its authorized agents or suppliers;
VI. Scheduled maintenance notified to Subscriber in advance.

13. GOVERNING LAW

The Terms of Service 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.

14. ARBITRATION

14.1 FREE SERVICES

Any Dispute arising out of or relating to this Terms of Service, 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 by one arbitrator appointed by the Chairman of the Arbitration Court in accordance with the on-line Rules of the Arbitration Court.

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 these Terms, and any award providing a remedy beyond such will not be confirmed, no presumption of validity will attach, and such award will be vacated.

In the event that any of the terms and provisions of this Terms of Service are held to be invalid or unenforceable, such determination shall not affect the operation of the remaining provisions of this Terms of Service, which shall remain in full force and effect. The Parties shall replace the invalid or unenforceable provisions with valid and enforceable provisions that best respect the intended objectives of the invalid or unenforceable provisions. The Terms of Service is executed in two counterparts. Each party shall receive one.

The Parties declare that they have read the Terms of Service, understand its content, agree with it in full and desire to be bound by it.

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