Recapp Terms & Conditions

When you register with Recapp, you are choosing to collect and organize personal ideas and recommendations from friends and family. We love that!  It matters to us how you access our services and how we handle your information. We’d like to take this opportunity to explain what we are setting out to deliver and what you can reasonably expect from us. Please take time to read our terms and conditions.

If you are visually impaired, we may be able to help you access these Terms and Conditions if you e-mail us at help@RecappApp.com

Recapp LLC (including any subsidiaries and affiliates) (“Recapp,” “us”, “our”, or “we”) provides services via www.RecappApp.com (the “Website”), our mobile applications (the “App”), or other delivery methods (the Website, the App and such content and services provided through such delivery methods are collectively called the “Services”).

These Terms & Conditions (these “Terms”) govern your access to and use of the Services. The term “Device” refers to the device which is used to access the Services, including but not limited to computers, smartphones, and tablets. The terms “you” and “your” refers to the user of the Services. 
Information about our privacy practices can be found in our Privacy Policy (“Privacy Policy”). You acknowledge that your use of the Services is also subject to our Privacy Policy.

PLEASE NOTE THAT THESE TERMS CONTAIN AN ARBITRATION CLAUSE (SECTION) 14.9. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THE ARBITRATION CLAUSE, YOU AND RECAPP AGREE THAT DISPUTES RELATING TO THESE TERMS OR YOUR USE OF THE SERVICES WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

1.1 SERVICES

Services include, without limitation, collecting, organizing, storing, and displaying information relating to recommendations and suggestions for books, movies, shows, podcasts, travel, consumer products, dining, and many other lifestyle and work choices.

1.2 GENERAL RULES FOR USE OR ACCESS

(a) When you use any Services, or otherwise access the Services, you agree to be bound by these Terms and all applicable laws, rules, regulations, judicial orders, executive orders or similar binding legal instruments (“Applicable Law”). You may also be asked to click “I accept” prior to your access to the Services. If you do not click “I accept”, you may not be able to access the Services. If you do not agree to these Terms, please do not use the Services.

(b) These Terms set out the whole agreement between you and Recapp for the provision of the Services unless expressly stated otherwise. For instance, in order to use or access certain Services, you may be required to agree to additional terms and conditions or policies; those additional terms or policies are hereby incorporated into these Terms. Where such terms or policies are inconsistent with these Terms, the additional terms or policies will control.

(c) Please check that the details in these Terms are complete and accurate before you use the Services. If you think that there is a mistake in these Terms, please contact us by emailing help@RecappApp.com. We only accept responsibility for statements and representations made in writing by an authorized representative of Recapp.

(d) Use of the Services is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the Service and it is your responsibility to ensure the equipment’s functionality. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges.

1.3 CHANGES TO TERMS

Recapp reserves the right to change or update these Terms, or any other of our policies or practices, at any time. If a change to these Terms materially modifies your rights or obligations, we may notify you and require that you accept the modified Terms in order to continue to use the Services. We may notify you of such changes via pop-up or push notifications within the Services or via email. If you continue to use the Services after modification of the Terms, you agree to abide by the modified Terms.

2.1 BECOMING A MEMBER

(a) To access the Services, you must sign up as a registered user (a “Member”). You can do this via our Website or our App.  To become a Member, you need to provide certain personal information, including but not limited to, your first name, last name, email address, mobile phone number, and a password to be used in conjunction with that email address (“User Information”). You are responsible for maintaining the confidentiality of your account and password and for restricting access to your Device. You may not register for more than one Member account. In order to access or use certain Services, you may need to provide additional User Information.

(b) By registering as a Member and using and/or accessing the Services, you warrant that: (i) you are legally capable of entering into binding contracts; (ii) all User Information you submit is truthful, accurate, and up to date; (iii) you will maintain the accuracy of such information; and (iv) your use of the Services does not violate these Terms or Applicable Law.

(c) Member accounts and subscriptions are not transferable. You agree to not sell, transfer, or exchange Member accounts or Subscriptions in any way or under any circumstance.

3.1 CANCELLATION BY US

We may suspend or terminate your use of the Services as a result of your fraud or breach of any obligation under these Terms, at our sole and absolute discretion. Such termination or suspension may be immediate and without notice. If we terminate your account, you may receive a pro rata refund of fees that you paid for the Services

3.2 CANCELLATION BY YOU

(a) You may cancel your subscription at any time. Cancellation of an annual Subscription is effective at the end of the applicable annual period. Please make any such cancellation by emailing help@RecappApp.com.  If you terminate your Subscription before the end of the applicable annual period, you will not receive a refund of any fees that you paid.

(b) Please note that if you purchase a subscription through our iPhone application, you may be able to cancel your subscription by canceling automatic renewal through your iTunes Account settings. If you purchase a subscription through the Google Play store you may be able to cancel automatic renewals through your account settings under in the Google Play app. Recapp is not responsible for any errors that may result through cancellation of a subscription through ITunes, Google Play, or any other app store.

By using the Services you agree not to:

(a) copy, store, reproduce, transmit, modify, alter, reverse-engineer, emulate, decompile, or disassemble the Services in any way, or create derivative works of the Services;

(b) use or access the Services (or any part of them) to create any tool or software product for the purpose of competing with Recapp or the Services;

(c) upload, post, email or otherwise send or transmit or introduce any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly with the Services;

(d) interfere with the servers or networks underlying or connected to the Services or to violate any of the procedures, policies, or regulations of networks connected to the Services;

(e) access the Services in an unauthorized manner, including in violation of any Applicable Law;

(f) circumvent any territorial restrictions applied to the Services;

(g) perform any fraudulent activity including impersonating any other person or entity while using the Services;

(h) conduct yourself in an offensive manner while using the Services, including, but not limited to, bullying, harassing, or using hate speech or degrading comments about personal characteristics like race, religion, culture, sexual orientation, gender or identity, age, or disability;

(i) use the Services for any illegal, immoral or harmful purpose (including, without limitation, harassment, libel, invasion of another’s privacy, or abusive, threatening or obscene language;

(j) use the Services for any purposes related to scientific research, analysis, or evaluation of the Services without the express written consent of Recapp;

(k) rent, lease, loan, make available to the public, sell, or distribute the Services in whole or in part, or use the Services except for your own personal use;

(l) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right; or

(m) attempt to do any of the acts described in this Section or as otherwise prohibited by these Terms or assist or permit any person in engaging in any of the acts described in this Section or otherwise as prohibited by the Terms.

We reserve the right to immediately terminate your access to or use of our Services if we believe, in our sole discretion, that you exhibit such behavior or you violate or attempt to violate any laws or breach these Terms.

By breaching the provisions of this Section, you may commit a criminal offense under Applicable Law. We may report any such breach to the relevant law enforcement authorities and we may cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Services will cease immediately.

We reserve the right to contact emergency services to the extent that we believe, at our sole discretion, that you pose an imminent threat of harm to yourself, to property, or to another person.

Subject to the limitations set forth in these Terms, Recapp grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to make personal, non-commercial use of the Services. The Services, including the look and feel of the Website and App, and any information derived therefrom, is proprietary to and constitutes the intellectual property of Recapp.

5.1 COPYRIGHT

(a) All materials contained in the Services (“Materials”) are owned by Recapp or our affiliates and/or third-party licensors, where applicable. The Materials are valuable property and that other than any specific and limited license for use of such Materials, you will not acquire any ownership rights in or to such Materials. The Materials may not be used except as provided for in these Terms, and any other relevant terms and conditions provided to you, without the prior written consent of the owner.

(b) Materials in the Services are the property of Recapp or third-party licensors and, without prejudice to any and all other rights and remedies available, each such licensor has the right to directly enforce relevant provisions of Section 11 against you.

(c) Audio or video content from Recapp not explicitly indicated as downloadable may not be downloaded or copied from the Services or any Device.

(d) The Services are not intended for your commercial advertising or  other forms of commercial solicitation by you, and may be removed by us without notice and may result in termination of privileges.  Materials may not be copied or distributed, or republished, or transmitted in any way, without our prior written consent. Appropriate legal action may be taken for any illegal or unauthorized use of the Services.

(e) You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials in the Services.  Recapp will enforce its intellectual property rights to the fullest extent it deems necessary, including the seeking of criminal prosecution.

5.2 TRADEMARKS

Recapp™, the Recapp Loop Logo, and all other Recapp product or service marks are trademarks of Recapp.  All intellectual property, other trademarks, logos, images, product and company names displayed or referred to on or in the Products and Services are the property of their respective owners. Nothing grants you any license or right to use, alter, or remove or copy such trademarks, logos, images, or names. Your misuse of the trademarks displayed or referred to in the Services is strictly prohibited.

5.3 DATA ENTERED INTO RECAPP

As part of your use of the Services, you may provide text, audio, video, images, or other information (collectively, “Data”) to Recapp.  Indeed, one of the purposes of Recapp is to organize and store such Data for you and to provide you access to such Data.  Data does not include personally identifiable information, such as your e-mail address or phone number.  You grant Recapp a non-exclusive, perpetual, worldwide, non-revocable, royalty-free license to use, copy, and share the Data, in whole or in part, including using and sharing the Data with our business partners, without limitation and without compensation to you.

Although we aim to offer you the best service possible, we make no promise that the Services will meet your requirements and we cannot guarantee that the Services will be fault free. If a fault occurs in the Services, please report it to us at help@RecappApp.com and we will review your concern and, where we determine it is appropriate to do so, correct the fault. If the need arises, we may suspend access to the Services while we address the fault. We will not be liable to you if the Services are unavailable for a commercially reasonable period of time.

Your access to the Services may be occasionally restricted to allow for repairs, maintenance, or the introduction of new Services. We will restore the Services as soon as we reasonably can.

We may change or discontinue, temporarily or permanently, any feature, component, or content of the Services at any time without notice to you. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by us, without prior notice to you. Apart from the pro rata refund of any prepaid fees in Section 3.1, you agree that Recapp will not be liable to you for any unavailability, modification, suspension or discontinuance of any feature or component of the Services.

7.1 DEFINITION AND CONDITIONS

The Services may let you submit material to us, for example, you may be able to post comments or images in certain functions or features of the Services. “User Material” refers to any material of any kind that you submit to us, including text, files, images, photos, video, sounds and musical or literary works, except User Material does not include information that you provide in registering for the Services. If you review or submit User Material, you are agreeing to do so in accordance with these Terms. If you do not want to review or submit User Material in accordance with these Terms, then you should not do so.

7.2 NO SYSTEMATIC REVIEW, RESPONSIBILITY, OR WARRANTIES

We do not systematically review all User Material submitted by you or other users. We reserve the right to, and may from time to time, monitor any and all information transmitted or received through the Services for operational and other purposes. If at any time we choose to monitor such information, we assume no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy. We are not responsible for the content of User Material provided by you or any other user. We do not necessarily endorse any opinion contained in such material. We make no warranties or representations, express or implied, about User Material, including as to its legality or accuracy.

7.3 RIGHT TO REMOVE OR EDIT, OR AFFECT ACCESS

We reserve the right, in our sole discretion, to refuse to post or to remove or edit any of your User Material, or to restrict, suspend, or terminate your access to all or any part of the Services, particularly where User Material breaches these Terms, and we may do this with or without giving you any prior notice.

7.4 POSSIBLE USES

We may link User Material or parts of User Material to other material, including material submitted by other users or created by Recapp or other third parties. We may use User Material for our internal business purposes, for example, to examine trends or categories or to promote, market, or advertise Recapp. We may indirectly commercially benefit from use of your User Material, and in the event we do, you will not be entitled to any compensation.

7.5 YOUR REPRESENTATIONS AND WARRANTIES

Each time you submit User Material to us, you represent and warrant to us as follows:

(a) You own your User Material or have the right to submit it, and in submitting it you will not be infringing any rights of any third party, including intellectual property rights (such as copyright or trademark), privacy or publicity rights, rights of confidentiality or rights under contract.

(b) Your User Material is not illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, and does not encourage conduct that would be considered a criminal offense, and does not give rise to civil liability, violate any law, or is otherwise deemed inappropriate.

(c) Your User Material does not advertise any product or service or solicit any business.

(d) Your User Material does not identify any individual (including by way or name, address or a still picture or video) under the age of 18 and if User Material identifies any individual over the age of 18, you have that person’s consent to being identified in exactly that way in your User Material; and in submitting your User Material you are not impersonating any other person.

(e) You will not collect email addresses of Recapp users for the purpose of sending unsolicited email.

(f) You will not use Recapp to engage in criminal or tortious activity, including fraud, spamming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets, or attempt to impersonate another Recapp user or person.

(g) You will not engage in any automated use of the Recapp Services, such as using bots or scripts.

(h) You will not access, tamper with, or use non-public areas of the Services, Recapp’s computer systems, or the technical delivery systems for Recapp’s Services.

(i) Except as necessary to maintain your own computer security by use of commercial-off-the-shelf antivirus or anti-malware products, you will not attempt to probe, scan, or test the vulnerability of the Services or any other Recapp-related system or network or breach any Recapp security or authentication measures.

7.6 PROVIDING IDENTITY TO ADDRESS INFRINGEMENT OF RIGHTS

We are entitled to identify you to third parties who claim that their rights have been infringed by User Material you have submitted.

7.7 NON-CONFIDENTIALITY AND LICENSE TO USE

Any inquiries, feedback, suggestions, ideas, other information regarding Recapp or its Services (collectively, “Submissions”) will be treated as non-proprietary and non-confidential. By transmitting, uploading, posting, e-mailing, or otherwise submitting Submissions, you grant, and you represent and warrant that you have the right to grant, to Recapp an irrevocable, perpetual, non-exclusive, royalty free, worldwide license to use, telecast, copy, perform, display, edit, distribute and otherwise exploit the Submissions, or any portion thereof and any ideas, concepts, or know how contained in the Submissions, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity, in any manner (including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes) and in any and all media now known or hereafter devised, and to prepare derivative works of, or incorporate into other works, such Submissions, and to grant and authorize sublicenses of the foregoing without any payment of money or any other form of consideration to you or to any third party. You also acknowledge that your Submissions will not be returned to you and that Recapp has no obligation to acknowledge receipt of or respond to any Submissions. If you make a Submission, you represent and warrant that you own or otherwise control the rights to your Submission. You agree to indemnify Recapp and its affiliates for all claims arising from or in connection with any claims to any rights in any Submission or any damages arising from any Submission.

8.1 SUPPORT

At times, we may contract with a third party to support the Services we offer to you or to directly provide Services to you. In such instances, your use of the third-party’s products or services will be subject to their applicable terms of service and privacy policy, which will be presented to you upon engagement with their product or service. To the extent that there is a conflict between these Terms and the terms of use for any of our third-party contracted entities, the third-party terms will apply. We reserve the right to change third-party providers in our sole discretion.

8.2 TRANSFER OF INFORMATION

The Services may integrate, be integrated into, or be provided in connection with third-party products, services and content. As part of such integration we may transfer your information to the applicable third-party service. These third-party services are not under our control, and, to the fullest extent permitted by law, we are not responsible for any third party service’s use of your exported information.

9.1 LINKS PROVIDED BY US

We may provide links to other websites or services for you to access. Any access is at your sole discretion and for your information only. We do not necessarily review or endorse any of those third-party websites or services. We are not responsible in any way for: (a) the availability of; (b) the privacy policies of; (c) the content, advertising, products, goods or other materials or resources on or available from; or (d) the use to which others make of these other websites or services. We are also not responsible for any damage, loss or offense caused or alleged to be caused by, or in connection with, your use of or reliance on such websites or services.

9.2 YOUR LINKS TO US

You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it.  You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. The Services must not be framed on any other website, nor may you create a link to any part of the Services unless you have written consent to do so from Recapp. We reserve the right to withdraw linking permission with written notice. In the event we withdraw linking permission, you agree to remove the link to our website immediately, and your failure to do so will constitute a breach of these Terms.  The website from which you are linking must comply in all respects with Section 4. If you wish to make any use of material in the Services other than that set out above, please address your request to help@RecappApp.com.

THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS.

RECAPP DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.

RECAPP DOES NOT WARRANT THAT THE SERVICES OR ANY PORTION OF THE SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND RECAPP DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR RECAPP ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE RECAPP ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS.

YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES) OR ANY LOSS OF DATA.  THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

APPLICABLE LAW IN SOME JURISDICTIONS MAY IMPLY WARRANTIES, CONDITIONS, OR GUARANTEES OR IMPOSE OBLIGATIONS THAT PROVIDE YOU WITH CERTAIN CONSUMER RIGHTS.  THESE TERMS ARE IN NO WAY INTENDED TO RESTRICT THOSE RIGHTS AND RECAPP DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT RECAPP IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

11.1 OUR POLICY

We are committed to complying with copyright and related laws, and we require all users of the Services to do the same. This means you may not store any material or content on, or disseminate any material or content over, the Services in any manner that infringes third-party intellectual property rights, including rights granted by copyright law. You may not use Recapp or the Services to post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights.  It is our policy to terminate privileges of any user who repeatedly infringes the copyright rights of others upon receipt of proper notification to us by the copyright owner or the copyright owner’s legal agent.

OWNERS OF COPYRIGHTED WORKS

Owners of copyrighted works in the United States who believe that their rights under copyright law have been infringed may take advantage of certain provisions of the US Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements.  If you feel that content is infringing, we encourage you to contact us immediately. Upon our receipt of a proper notice of claimed infringement under the DMCA, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue. Our designated agent (i.e., the proper party) to whom you should address such notice is listed below.

If you believe that your work has been copied through the Services in a way that constitutes copyright infringement, please provide our designated agent with the following information:

(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

(b) A description of the copyrighted work or other intellectual property that you claim has been infringed;

(c) A description of where the material that you claim is infringing is located on the Services;

(d) Your address, telephone number, and email address;

(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and

(f) A statement by you, made under penalty of perjury, that the information contained in your report is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

(g) Our designated agent for notice of claims of copyright infringement can be reached as follows:

By Mail: Recapp LLC, Attn: Copyright Agent, 2500 N. Lakeview Avenue, Unit 605, Chicago, Illinois 60614

By Email: DMCADesignatedAgent@RecappApp.com, Subject line: DMCA

Email, text messaging, push notifications, and other electronic communication (“Electronic Communications”), such as posting notices on or through the Services, allow Recapp to exchange information with you efficiently in connection with the provisioning of our Services.

Your use of the Services means that you agree and consent to the use of Electronic Communications as an acceptable form of communication for the purposes of receiving our Services and information and surveys related to the Services. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. You acknowledge that Electronic Communications may not be a completely secure means of communication, and there may be the potential for such communications to be accessed in storage or during transmission. We may limit the amount and type of confidential information disclosed in un-encrypted Electronic Communications in compliance with our privacy policy.

Applicable laws may require that some of the information or communications we send to you should be in writing. You agree to transact with us electronically, and that communication with us will be mainly electronic. You acknowledge that all contracts, notices, information, and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. You may have the right to receive a paper copy of the communications and, in that event, please send any request for such paper copy to help@RecappApp.com, and indicate the communication requested and the legal basis for the request.

We reserve the right, in our sole discretion, to discontinue the provision of your Electronic Communications, or to terminate or change the terms and conditions on which we provide Electronic Communications. We will provide you with notice of any such termination or change as required by law.

You may not access to the Services or any features thereof from countries or territories where such access is illegal, banned or restricted, including in any sanctioned countries or territories.

SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN TYPES OF WARRANTIES AND CONDITIONS OR LIMITATIONS ON CERTAIN TYPES OF DAMAGES, SO SOME OF THE DISCLAIMERS OR LIMITATIONS IN THESE TERMS MAY NOT APPLY TO YOU.

14.1 ASSIGNMENT BY US

Recapp may transfer its rights and obligations under these Terms to any company, firm or person at any time if it does not materially affect your rights under it. You may not transfer your rights or obligations under these Terms to anyone else. These Terms are personal to you and no third party is entitled to benefit under these Terms except as expressly set forth herein.

14.2 INDEMNITY

To the fullest extent permitted by law, you are responsible for your use of the Services, and you will defend and indemnify Recapp, and its respective officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Recapp Entities”) from and against any claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Services; (b) your violation of any portion of these Terms or any Applicable Law; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.

14.3 LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE RECAPP ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY OF THE RECAPP ENTITIES HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

EXCEPT AS PROVIDED IN THE ARBITRATION CLAUSE AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE RECAPP ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT YOU HAVE PAID TO RECAPP FOR ACCESS TO AND USE OF THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR AN ASSUMPTION OF RISK, LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

14.4 NO WAIVER

If we delay exercising or fail to exercise or enforce any right available to us under these Terms, such delay or failure does not constitute a waiver of that right or any other rights under these Terms.

14.5 FORCE MAJEURE

We will not be liable to you for any lack of performance, or the unavailability or failure, of the Services, or for any failure or delay by us to comply with these Terms, where such lack, unavailability, or failure arises from any cause beyond our reasonable control.

14.7 ENTIRE AGREEMENT

These Terms and any additional terms or policies expressly referred to in these Terms constitute the whole agreement between us and supersede all previous oral or written discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to the Services. We each acknowledge that neither of us relies on, or will have any remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms or the additional terms or policies expressly referred to in these Terms.  Each of us agrees that our only liability in respect of a violation of any representation or warranty set out in this agreement (whether made innocently or negligently) will be for breach of contract. Nothing in this Section limits or excludes any liability for fraud.

14.8 THIRD PARTY RIGHTS

A person who is not party to these Terms will not have any rights under or in connection with these Terms, except as described in Section 11 (DMCA).

14.9 DISPUTE RESOLUTION & BINDING ARBITRATION

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY, AS THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH RECAPP, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM RECAPP, INCLUDING A LIMITATION ON THE RIGHT TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM

(a) Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Recapp, you agree to try to resolve the dispute informally by contacting us via email to help@RecappApp.com, and providing us with your email address. We'll try to resolve the dispute informally by contacting you through email. If a dispute is not resolved within 90 days after submission, you or Recapp may bring a formal proceeding.

(b) Applicability of Arbitration Agreement. All disputes arising out of, relating to, or in connection with these Terms or your use of the Services that cannot be resolved informally will be resolved through binding arbitration on an individual basis, except that a party is not required to arbitrate any dispute in which the party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.

(c) Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association ("AAA"). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The AAA Consumer Arbitration Rules (“AAA Rules”) governing the arbitration are available online at www.adr.org. The arbitration will be conducted by a single neutral arbitrator.

Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA Rules with the remainder paid by Recapp. If the arbitrator finds that either the substance of a party’s claim or the relief sought in the arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules.

The parties to the arbitration shall exchange the names of five (5) possible arbitrators  within seven (7) business days after initiation of the arbitration, and the parties shall select an arbitrator within ten (10) business days after initiation of the arbitration.  If the parties are not able to agree on an arbitrator, the parties will request that the AAA select the arbitrator.  The parties shall be entitled to discovery consistent with the United States’ Federal Rules of Civil Procedure. The arbitrator shall hold the arbitration hearing within ninety (90) days after the arbitrator’s selection.  At least ten (10) days before the arbitration hearing, each party will provide the other party with a list of the documents and witnesses intended to be used at the hearing. The United States’ Federal Rules of Evidence will apply in the arbitration.  The parties will ask the arbitrator to issue a reasoned, written decision within twenty-one (21) days after the end of the hearing. The decision of the arbitrator shall be binding on the parties and appealable only to an appeal panel of the AAA. Any decision by the AAA appeal panel shall be final and unappealable. The costs of the arbitration, including any AAA administration fee, the arbitrator’s fee, costs  for  the  use  of  facilities  during  the  hearing,  and  the  costs  of  appeal,  shall  be  borne equally by the parties to the arbitration, except that, to the extent permitted by the AAA and any applicable law, the prevailing party is entitled to reimbursement of any AAA administration costs and arbitrator's fees from the losing party.  Each party will pay its own attorneys’ fees and costs, except as noted above. The arbitrator shall not have the right or authority to award punitive or exemplary  damages  to  any  party.   The  arbitrator  shall  not  have  any  power  to  alter,  amend, modify  or  change  the  terms  of  this  Agreement nor  to  grant  any  remedy  that  is  either prohibited by the terms of this Agreement or not available in a court of law. In the event any party believes that emergency relief is necessary, a party is entitled to request such relief from the arbitrator in advance of the arbitration hearing, and the arbitrator may hear such request and grant any emergency relief under terms the arbitrator deems appropriate.  The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.  The arbitration shall be confidential in all respects, except as necessary to enforce  any  relief  or  award  arising  therefrom  or  to compel  arbitration.   Failure to maintain such confidentiality shall be grounds for injunctive relief and monetary sanctions, to be decided by the arbitrator.

(d) Authority of Arbitrator. The arbitrator will have exclusive authority to decide the jurisdiction of the arbitrator, including any unconscionability challenge or other challenge that the arbitration provision or the Agreement is void, voidable, or otherwise invalid. The arbitrator will also have the exclusive authority to determine the rights and liabilities, if any, of you and Recapp.  The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award all remedies available under Applicable Law, the arbitral forum's rules, and the Terms. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Recapp.

(e) Jury Trial Waiver. Except where not permitted by law, you and Recapp waive any constitutional and statutory rights to go to court and have a trial in front of a judge or a jury. Rather, you and Recapp elect to have claims and disputes resolved by arbitration. In any litigation between you and Recapp over whether to vacate or enforce an arbitration award, you and Recapp waive all rights to a jury trial, and elect instead to have the dispute be resolved by a judge.

(f) Class Action Waiver. WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND RECAPP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR CONSOLIDATED ACTION. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Recapp are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 14.10 below.

(g) Opt-out. YOU MAY OPT-OUT OF THIS ARBITRATION AGREEMENT. If you do so, neither you nor Recapp can force the other to arbitrate. To opt-out, you must notify Recapp in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, and the email address you used to set up your Recapp account (if you have one), and an unequivocal statement that you want to opt-out of this arbitration agreement. You must send your opt-out notice to one of the following physical or email addresses: Recapp, ATTN: Arbitration Opt-out, 2500 N. Lakeview Avenue, Unit 605, Chicago, Illinois 60614; ADR@RecappApp.com.

(h) Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with Recapp.

14.10 EXCLUSIVE VENUE

To the extent the parties are permitted under these Terms to initiate litigation in a court, all claims and disputes arising out of or relating to the Terms or the use of the Services will be litigated exclusively in the United States District Court for the Northern District of Illinois. If, however, that court would lack original jurisdiction over the litigation, then all claims and disputes arising out of or relating to the Terms or the use of the Services will be litigated exclusively in the courts of the State of Illinois, in Cook County, Illinois. You and Recapp consent to the personal jurisdiction of these courts.

14.11 CHOICE OF LAW

The laws of Illinois govern these Terms and any disputes arising out of or relating to these Terms or their subject matter, including tort claims, except to the extent they are preempted by U.S. federal law. The United Nations Convention on Contracts for the International Sale of Goods will not apply.

14.12 SEVERABILITY

If any provision of these Terms is found unenforceable, then that provision will be severed from these Terms and not affect the validity and enforceability of any remaining provisions.

Recapp is located at 2500 N. Lakeview Avenue, Unit 605, Chicago, Illinois 60614.