1. ACCESS TO AND USE OF THE SERVICE
1.3 You are responsible for determining whether the Service or the information generated thereby is accurate or sufficient for Your purposes.
1.4 You agree not to:
(b) use the Service to Process data on behalf of any third party other than Users;
(c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks;
(d) falsely state, infer or imply any sponsorship or association with Us or Our Affiliates,
(e) use the Service in an unlawful manner, including but not limited to violation of any person’s privacy rights;
(f) use the Service to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages;
(g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights;
(h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and/or its components;
(i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service;
(j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory;
(k) use the Service to store files that are deemed by Us to not be voice or video communication;
(l) use the Service to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (Malicious Software); or
1.6 Subject to any limitation on the number of individual Users available under Your Subscription, access to and use of the Service is restricted to the specified number of individual Users permitted under Your Subscription. You agree and acknowledge that each User will be identified by a unique username and password (Login) and that a User Login may only be used by one individual natural person. You will not share a User Login among multiple individuals. You and Users are responsible for maintaining the confidentiality of all Login information for Your Account.
1.7 A high-speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, “browser” software that supports protocols used by Us, including Secure Socket Layer (SSL) protocol or other protocols accepted by Us, and to follow procedures for accessing services that support such protocols.
1.8 We are not responsible for notifying You or Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Your Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Us. We assume no responsibility for the reliability or performance of any connections to the Service.
1.9 In addition to Our rights as set forth in Section 6.5, We reserve the right, at Our reasonable discretion, to temporarily suspend Your access to and use of the Service:
(a) during planned downtime for upgrades and maintenance to the Service (for which We will use commercially reasonable efforts to notify You of in advance) (Planned Downtime);
(b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or
(c) if We suspect or detect any Malicious Software connected to Your Account or use of the Service by You or Users.
2. DATA PRIVACY AND SECURITY; CONFIDENTIALITY
2.3 We will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using SSL or similar technologies), except for certain Other Services that do not support encryption, which You may link to at Your election.
2.4 You agree that We and the service providers We use to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any third party service providers We use will only be given access to Your Account and Your Data as is reasonably necessary to provide the Service and will be subject to confidentiality obligations. Without limiting the foregoing, you give Us authority to refer to a provider or providers of Other Services any customer support request You may make to Us in respect of the Service.
2.5 We may also access or disclose information about You, Your Account or Users, including Your Data, in order to:
(a) comply with the law or respond to lawful requests or legal process;
(c) where We believe in good faith that such disclosure is necessary to protect personal safety or avoid violation of any applicable law or regulation.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 We shall maintain all rights, title and interest in and to all Our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, Intellectual Property Rights).
3.3 We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You and Users.
3.4 Dubber®, DubberConnectTM and Our other product and service names and logos used or displayed in connection with the Service are Our registered or unregistered trademarks (collectively, Marks), and You may only use such Marks to identify You as a subscriber to the Service, PROVIDED THAT You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, or any of our services or products.
4. THIRD PARTY SERVICES
4.1 If You decide to enable, access or use Other Services, then Your access and use of such Other Services is governed solely by the terms and conditions of use of such Other Services, and We do not endorse, are not responsible or liable for, and make no warranty or representation as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Your Data) or any interaction between You and the provider of such Other Services.
4.2 You irrevocably waive any claim You have or may have against Us with respect to such Other Services.
4.3 We are not liable for any damage or loss caused or alleged to be caused by, or in connection with, Your enablement, access or use of any Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services.
4.4 You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting Us to disclose the Login details for Users as well as Your Data, as deemed necessary by Us to facilitate the use or enablement of the Other Services.
5. BILLING, PLAN MODIFICATIONS AND PAYMENTS
5.1 All charges associated with Your Subscription and access to and use of the Service as provided for in an Order (Subscription Charges) must be prepaid in advance in accordance with the terms of that Order.
5.3 If You fail to pay Your Subscription Charges or charges for other services provided by Us within five business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of the Service by You and Users.
5.4 If You choose to upgrade Your Subscription or increase the number of authorized Users (a Subscription Upgrade), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining time in the relevant payment cycle, charged to Your Account and due and payable on the next payment date. Your future Subscription Charges will reflect any such Subscription Upgrades in full.
5.5 We may increase or add new fees and charges for the Service by giving You at least 30 days’ prior notice. We reserve the right to contact You about special pricing if You maintain an exceptionally high number of Users, an unusually high monthly recording ratio per User or other excessive stress on the Service.
5.6 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively Taxes). You are responsible for paying Taxes except those assessable against Us based on our income. We will invoice You for such Taxes if We believe We have a legal right or obligation to do so and You agree to pay such Taxes if so invoiced.
5.7 You hereby authorize Us to invoice You and You shall make payment by way of direct deposit, credit card or other means approved by Us on a periodic basis in accordance with the terms of the Order, and you further agree to pay any Subscription Charges so incurred.
5.8 We may use a third-party intermediary to manage billing, receipt and processing of payments. This intermediary is not permitted to store, retain or use Your billing information except to process Your payment information for Us (including, without limitation, credit or debit card and bank account details). 5.9 We will issue a receipt upon payment of each invoice by You, or You may obtain a receipt from within the Service to track subscription status.
6. CANCELLATION, REFUND AND TERMINATION
6.2 Following the termination of this Agreement and cancellation of Your Account, We reserve the right to delete all Your Data in the normal course of operation. Your Data cannot be recovered once Your Account is cancelled. 6.3 If We terminate this Agreement and cancel Your Account pursuant to Section 1.9(c) or 6.5, in addition to other amounts You may owe Us, You must immediately pay any then unpaid Subscription Charges associated with the remainder of the relevant billing cycle.
6.4 There will be no refunds or credits where the Service is provided for only part of a billing cycle.
6.6 Any suspected fraudulent, abusive, or illegal activity by You or Users may be referred to law enforcement authorities at Our sole discretion.
7. DISCLAIMER OF WARRANTIES
7.1 THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
8.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9.1 Subject to Sections 9.2 and 9.3, We undertake to defend You from and against any action or claim that Your use of the Service as permitted hereunder, or any part of it infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (IP Claim) and shall indemnify the You from and against any losses, damages, costs (including legal fees) and expenses incurred by You as a result of or in connection with any such IP Claim which are agreed in settlement of any IP Claim or awarded by a court of competent jurisdiction against You as a result of, or in connection with, that IP Claim.
9.2 We shall have no liability under the indemnity in section 9.1 unless:
(a) You promptly notify Us of the threat or notice of such IP Claim;
(b) We are allowed by You to have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and
(c) You fully cooperate with Us in connection therewith.
9.3 In addition, We will have no liability or obligation under Section 9.1 with respect to any IP Claim if it is caused in whole or in part by:
(a) compliance with designs, data, instructions or specifications provided by You;
(b) modification of the Service by anyone other than Us; or
(c) the combination, operation or use of the Service with other hardware or software where the Service would not in and of itself be infringing.
9.4 If use of the Service by You and/or Users has become, or in Our opinion is likely to become, the subject of an IP Claim, We may at Our option and expense:
(a) procure for You the right to continue using the Service as set forth hereunder;
(b) replace or modify the Service to make it non-infringing;
(c) if options (a) or (b) are not commercially and reasonably practicable as determined by Us, terminate this Agreement and cancel Your Account, in which case We will repay You, on a pro-rated basis, any Subscription Charges previously paid to Us for the corresponding unused portion of the relevant billing cycle.
9.5 The provisions of Sections 9.1 to 9.3 state Our sole, exclusive and entire liability to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service by You or Users.
9.6 You will defend, indemnify, and hold harmless Us, our Affiliates and licensors, and each of their respective officers, directors, employees, contractors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including legal fees) arising out of or relating to any third-party claim concerning:
(a) Your or any User’s use of the Service (including any activities under Your Account and use by your employees and personnel);
(b) breach of this Agreement or violation of applicable law by You, Users, or Your Data;
(c) Your Data or the combination of Your Data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Data, or by the use, development, design, production, advertising or marketing of Your Data; or
(d) a dispute between You and any User.
You will reimburse Us for our legal fees, as well as Our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in paragraphs (a) through (d) above at Our then-current hourly rates.
10. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
11. DISPUTE RESOLUTION
11.1 Except for disputes relating to either of the following (Excluded Disputes):
(a) Our Intellectual Property Rights; or
11.2 You may bring claims only on Your own behalf. Neither you nor We will participate in a class action or class-wide arbitration for any claims under or covered by this Agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if We are a party to the proceeding.
12. GOVERNING LAW AND JURISDICTION
12.1 These Terms are governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
(a) by nationally recognized overnight delivery service (Courier);
(b) by mail to the contact mailing address provided by You on any Order; or (c) email to the email address provided for Your Account owner under Your Subscription.
13.2 You must give notice to us in writing by Courier or mail to the following address: Dubber Inc., 300 Congress Street, Qunicy, MA 02169[insert address].
13.3 All notices shall be deemed to have been given immediately upon delivery by email (unless We are notified that the email address is invalid), or if otherwise delivered upon receipt or, if earlier, two business days after being deposited in the mail or with a Courier as permitted above.
14.2 The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
14.4 You agree that any claim You may have arising out of or related to your relationship with Us must be filed within one year after such claim arose; otherwise, Your claim is permanently barred.
Account: means all accounts created by or on behalf of You or Users within the Service.
Affiliate: means all other entities that control Us, are controlled by Us or under common control with Us.
API: means the application programming interfaces developed and enabled by Us that permits You to access certain functionality provided by the Service, including without limitation, the Dubber REST API that enables the interaction with a call recording account automatically through HTTP requests and the Dubber application development API that enables the integration with other web applications.
Confidential Information: means all information disclosed by Us to You which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include information that:
(a) was already known to You at the time of disclosure by the disclosing party; (b) was or is obtained by You by a third party not known by You to be under an obligation of confidentiality with respect to such information;
(d) was or is independently developed by You without use of Our Confidential Information.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service provided or made available by Us to You or Users through the Site or otherwise.
Order: means any service or purchase order form generated by Us and executed or approved by You with respect to Your Subscription, which form may detail, among other things, the number of Users authorized to use the Service under Your subscription to the Service, the Subscription applicable to Your subscription to the Service, Our charges associated with Your Subscription, and any recording channel or source linked with a Subscription. Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which You may connect to or enable in conjunction with the Service, including, without limitation, Other Services which may be integrated directly into the Service.
Personal Data: means any information relating to an identified or identifiable natural person, being a person who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his or her physical, physiological, mental, economic, cultural or social identity.
Software: means software provided by Us (either by download or access through the internet) that allows a User to use any functionality in connection with the Service.
Subscription: means the subscription for that part of or all of the Service for which You subscribe pursuant to an Order.
User: means an individual natural person authorized to use the Service through Your Account and pursuant to Your Subscription as an end user and/or administrator as identified through a unique login.
We, Our and Us: means Dubber Inc, a Delaware corporation, with offices at 300 Congress Street, Quincy, MA 02169.
You and Your: means the Entity identified in the Order.
Your Data: means all electronic data, text, messages or other materials submitted to the Service by You, Users and End-Users in connection with Your use of the Service, including, without limitation, Personal Data.
16. OPERATIVE DATE
These terms and conditions were last updated on February 1, 2018.