Effective date: July 22, 2019
2. CHANGES TO THESE TERMS: We may change these Terms from time to time for various reasons, including to reflect updates in how the Service works or changes in the law. You should review these Terms regularly, and may access them on the Recount website and applications. If we make a material change to these Terms, we will notify you by posting a notice on the Recount website. If you are a registered user, we will also send an email to the email address you most recently provided to us prior to the material change taking effect. Therefore, it is important that you keep your account information, including email address, updated. Any material change to these Terms will be effective immediately after the revised Terms are first posted. If you don't agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Service. If you use the Service in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
3. REGISTRATION: In accessing this Service or certain of the resources on the Service, you may be asked to provide registration details including without limitation a valid e-mail address, date of birth and your full name. It is a condition of use of this Service that all the details you provide will be correct, current, and complete. If the Recount believes the details are not correct, current, or complete, we have the right to refuse you access to the Service or any of its resources. You will not share your account or password with anyone, and you must protect the security of your account and your password. You're responsible for any activity associated with your account.
4. FAIR USE: Fair use refers to the doctrine that allows the reproduction, use and sharing of copyrighted work without direct permission from or payment to the original copyright holders. Under section 107 of the Copyright Act of 1976, it is a designation assigned to works that use copyrighted materials for purposes including criticism, comment, and news reporting. When a project is protected under fair use provisions, the producers of that project are not subject to sanctions related to copyright infringement.
This Service may contain copyrighted material, the use of which may not have been specifically authorized by the copyright holders. The material is used for the purposes noted above, and is intended to encourage discussion, consumption and reflection of the original source material. Our attempt is not to endanger the source material's distribution and profit, and there is no reason to believe that the featured material will in any way negatively affect the market value of the copyrighted works. For these reasons, we believe that the Service is clearly covered under current fair use copyright laws.
We do not support any actions in which the materials on this site are used for purposes that extend beyond Fair Use. If you have specific concerns about our position on Fair Use, please contact us at [email protected]
5. USER SUBMISSIONS AND POSTINGS: The Service may allow you to submit or transmit to or through the Service audio, video, text, or other materials, including so-called "user generated content" and "feedback" and postings to third-party social media sites (collectively, "User Submissions"). When you provide User Submissions, you grant to the Recount and its affiliates and partners a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, fully sub-licensable license to use, reproduce, archive, edit, translate, modify, create derivative works of, make available, distribute, sell, display, perform, transmit, broadcast and in any other way exploit those User Submissions, and any names, voices, likenesses and other identifying information of persons that is part of those User Submissions, in any form, media, software, or technology of any kind now known or developed in the future, including, without limitation, for developing, manufacturing, and marketing products. You hereby waive any rights of attribution, integrity or disclosure you may have in your User Submissions. For clarity, we are not required to and will not provide any form of compensation for any use of your User Submissions.
We respect your ownership of User Submissions. If you owned a User Submission before providing it to us, you will continue owning it after providing it to us, subject to any rights granted in these Terms and any access granted to others. Please note that even where a Service provides a deletion capability for User Submissions, and you delete a User Submission from the Service:
• The User Submission may still exist in our backup copies, which are not publicly available.
• If your User Submission was shared with third parties, those third parties may have retained copies of your User Submissions, and neither we nor our affiliates have any responsibility for any uses of your User Submission that they might make.
• We retain the license specified above. Thus, for example, if we or one of our sublicensees obtained your User Submission for use in creating a derivative work before you deleted it, we or our sublicensee would remain free to complete the creation of that derivative work and thereafter exploit that derivative work for all purposes and at all times.
We may impose limits on the size or number of User Submissions (e.g., limits on storage space or inbound or outbound messages) or otherwise refuse or remove a User Submission with or without cause and without notice to you. While we may monitor User Submissions at our discretion, you agree that neither we nor our affiliates will be liable for (1) User Submissions; (2) any failure to store, receive or deliver User Submissions; or (3) any loss or damage resulting from User Submissions.
You may have heard of the Digital Millennium Copyright Act (the "DMCA"), as it relates to online service providers, like us, being asked to remove material that allegedly violates someone's copyright. We respect others' intellectual property rights, and we reserve the right to delete or disable User Submissions or content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to report potentially infringing content, please contact the Recount's Designated Agent at the following address:
Recount Media, Inc.
12 W 21st St, 10th Floor
New York, NY 10010
To learn more about the DMCA, click here http://www.copyright.gov/legislation/dmca.pdf.
7. ACCEPTABLE USE: Without limiting any other provision in these Terms, you agree not to do the following, or assist others to do the following:
• Access the Service using any interface other than ours, including by making any automated use of the Service such as using scripts to interact with the Services;
• Maintain any link to the Service that we ask you to remove, in our sole discretion;
• Frame the Service or Content, make the Service or Content available via in-line or "deep" links, otherwise display the Service or Content in connection with an unauthorized logo or mark, or do anything that could falsely suggest a relationship between the Recount or its affiliates and any third party or potentially deprive us of revenue (including, without limitation, revenue from advertising, branding, or promotional activities);
• Engage in conduct or transmit material which violates our Comment Policy;
• Transmit any material that is inappropriate, profane, vulgar, offensive, false, disparaging, defamatory, obscene, illegal, sexually explicit, racist, that promotes violence, racial hatred, or terrorism, or that we deem, in our sole discretion, to be otherwise objectionable;
• Violate any person's or entity's legal rights (including, without limitation, intellectual property, privacy, and publicity rights), transmit material that violates or circumvents such rights, or remove or alter intellectual property or other legal notices;
• Transmit files that contain viruses, spyware, adware, or other harmful code;
• Advertise or promote goods or services without our permission (including, without limitation, by sending unsolicited email through the Service or linking to the Service);
• Interfere with others using the Service or otherwise disrupt the Service;
• Disassemble, decompile or otherwise reverse engineer any software or other technology included in the Content or used to provide the Service;
• Transmit, collect, or access personally identifiable information about other users without the consent of those users and the Recount;
• Engage in unauthorized spidering, "scraping," data mining or harvesting of Content, or use any other unauthorized automated means to gather data from or about the Service;
• Impersonate any person or entity or otherwise misrepresent your affiliation or the origin of materials you transmit;
• Remove, avoid, interfere with, or otherwise circumvent any access control measures for the Service or Content, including password-protected areas and geo-filtering mechanisms, or any digital rights management measures used in connection with Content;
• Access any portion of the Service that we have not authorized you to access (including password-protected areas), link to password-protected areas, attempt to access or use another user's account or information, or allow anyone else to use your account or access credentials; or
• Manipulate the entry or registration process for contests, surveys, opinion polls or other features of the Service.
If we believe you have violated this Section, we may immediately terminate your access to the Service, and take any other actions or seek any remedies permitted by law.
12. INDEMNIFICATION: You will defend, indemnify and hold harmless the Recount, its affiliates, and their respective directors, officers, employees, shareholders, vendors, partners, contractors, agents, licensors or other representatives and all of their successors and assigns (collectively, the "Provider Parties") with respect to all third party claims, losses and costs (including attorney's fees and costs), damages (actual and consequential), liabilities, and expenses or obligations of any kind, arising out of or in connection with your use or misuse of the Service (including, without limitation use of your account, whether or not authorized by you, and claims arising from User Submissions). We retain the right to assume the exclusive defense and control of any claim subject to indemnification, and in such cases you agree to cooperate with us to defend such claim. You may not settle any claim covered by this Section without our prior written approval.
13. DISCLAIMER: Your use of this Service is at your own risk. Neither the Recount nor its licensors or suppliers make any representations or warranties concerning any content contained in or accessed through the Service, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Service. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Service. This Service and all the materials, information, software, facilities, services and other content in this Service are provided "as is" and "as available" without warranties of any kind, either express or implied. To the fullest extent permissible pursuant to applicable law, the Recount disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement. The Recount does not warrant that the functions contained in this service will be available, uninterrupted or error-free, that defects will be corrected or that the Recount's websites or the servers that make them available are free of viruses or other harmful components. The Recount does not warrant or make any representations regarding the use or the results of the use of the material, information, software, facilities, services or other content in this Service or any sites linked to this Service in terms of their correctness, accuracy, reliability, or otherwise. The Recount makes no warranties that your use of the materials, information, software, facilities, service or other content in this Service will not infringe the rights of others and the Recount assumes no liability or responsibility for errors or omissions in such materials, information, software, facilities, Service or other content of this Service. If applicable law does not allow the exclusion of some or all of the above implied warranties to apply to you, the above exclusions will apply to you only to the extent permitted by applicable law.
14. LIMITATION OF LIABILITY: The Recount does not accept any liability for (a) any loss or damage (direct, indirect, punitive, actual, consequential, incidental, special, exemplary or otherwise) resulting from any use of, or inability to use, this service or the material, information, software, facilities, services or other content on this Service, regardless of the basis upon which liability is claimed and even if the Recount has been advised of the possibility of such loss or damage or (b) any amount in the aggregate, in excess of the greater of (i) $100 or (ii) the amounts paid by you to the Recount in connection with the Services in the three (3) month period preceding the applicable claim. If applicable law does not allow all or any part of the above limitation of liability to apply to you, the limitations will apply to you only to the extent permitted by applicable law.
15. DISPUTE RESOLUTION; ARBITRATION AGREEMENT: Please read the following arbitration agreement carefully because it requires you to arbitrate certain disputes and claims with the Recount and limits the manner in which you can seek relief from us. If you have any dispute with or claim against us or any of the Provider Parties (a "Claim") arising out of or relating in any way to the service or these terms, and the Claim is not resolved by emailing us at [email protected], you and we each agree to resolve such disputes through an individual binding arbitration or an individual action in small claims court. All claims and disputes within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class basis. Claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user. You and we agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to a trial by jury or to participate in a class action. This Section shall survive termination of these Terms or any subscription that you may have to the Service.
Before you commence an arbitration or file a small claims court action with respect to your Claim, you must first send us a written notice of your claim ("Notice"). The Notice must (1) be sent by certified mail; (2) be addressed to: Recount Media, Inc., 12 W 21st Street, New York, NY 10010, Attn: Legal Department; (3) describe the nature of your Claim; and (4) specify the damages or other relief you seek. If we and you do not then resolve the Claim within 60 days after our receipt of your Notice is received, either you or we may commence an individual binding arbitration or file a small claims court action to resolve the Claim.
Any such arbitration shall be administered in the English language by the American Arbitration Association and be conducted in accordance with its Commercial Arbitration Rules, including the Consumer-Related Disputes Supplementary Procedures, if applicable (the "Rules"). Contact information for the American Arbitration Association, as well as copies of the Rules and applicable forms, are available at http://www.adr.org. In circumstances in which the Rules provide for an in-person hearing, such hearing will take place in New York, New York. For any non-frivolous Claim that does not exceed $10,000, we will pay all costs of the arbitration, and reimburse any filing fees you may be required to pay. You will be responsible for your own legal fees. If the arbitrator awards you damages that are greater than our last written settlement offer communicated before commencement of the arbitration, we will pay you the greater of $1,000 or the amount of the award.
If there is a dispute between participants on this site, or between users and any third party, you agree that the Recount is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release the Recount, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
17. MISCELLANEOUS: These Terms cannot be changed or terminated orally. Any failure of the Recount to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. No waiver by the Recount of any provision of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of the Recount. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Service account, in any way (by operation of law or otherwise) without the Recount's prior written consent. The Recount may transfer, assign, or delegate its rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. If any provision of these Terms is held to be illegal, invalid, or unenforceable, then the provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The section titles in this Agreement are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms will not be construed against the Recount by virtue of the Recount having drafted them. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof. The Recount reserves the right to deny access to all or part of the Service to you or any person in its sole discretion without notice or liability of any kind. Any violation of these Terms may be referred to law enforcement authorities. These Terms constitute the entire understanding and agreement between you and the Recount and supersede any and all prior or inconsistent understandings relating to the Service and your use of the Service. Except as expressly set forth in the sections above regarding the arbitration agreement and additional terms related to the Apple Application, you and the Recount agree there are no third party beneficiaries intended under these Terms.
- Both you and the Recount acknowledge that the Terms are concluded between you and the Recount only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Service for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Service;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple's sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that the Recount, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party's intellectual property rights, the Recount, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and the Recount acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
- Both you and the Recount acknowledge and agree that Apple and Apple's subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.