PLEASE REVIEW THESE TERMS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS TO THE TERMS OR ANY POLICY MADE IN ACCORDANCE WITH SECTION 12.6. THIS AGREEMENT PROVIDES THAT ALMOST ALL DISPUTES BETWEEN YOU AND US ARE SUBJECT TO BINDING ARBITRATION AS WELL AS A WAIVER OF CLASS ACTION RIGHTS AND ANY RIGHT TO A JURY TRIAL AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTIONS BELOW (SECTIONS 12.9 AND 12.10). BY ENTERING THIS AGREEMENT, YOU GIVE UP YOUR RIGHT TO SUE IN COURT, HAVE YOUR CLAIMS HEARD BY A JURY, AND TO BE PART OF A CLASS OR COLLECTIVE ACTION, TO RESOLVE THESE DISPUTES, AS EXPLAINED IN MORE DETAIL IN THE RELATED SECTIONS BELOW.
Acceptance of Terms
This Agreement (this “Agreement”), including the BINDING ARBITRATION AND CLASS ACTION WAIVER CONTAINED HEREIN, is entered into by and between InfiniStrategy, LLC, a California limited liability company doing business as DaDaScribe (“DaDaScribe,” “we,” “us,” or “our”) and you (“Customer,” “you” or “your”) (each herein also referred to individually as a “Party,” or collectively as the “Parties”).
DaDaScribe offers advanced AI-based transcription, video caption, translation and other related document services through its proprietary online platform accessible from the website and associated domains of https://www.dadascribe.com (herein defined as the “Site”) which may be updated from time to time, including any successor websites and domains, and possible future web, mobile or desktop applications (the “Apps”; the Site together with the Apps, the “Service”). Any access to or use of the Service is subject to the terms and conditions in the Terms of Service (“Terms”) set forth herein. DaDaScribe may update the Terms from time to time as described in Section 12.6 (Amendment). You can access and review the most current version of the Terms at the URL for this page or by clicking on the “Terms of Service” link within the Service or as otherwise made available by DaDaScribe.
If you are entering into the Terms on behalf of a company or other legal entity, you represent and warrant that you are authorized and lawfully able to bind such entity to the Terms, in which case “you” shall refer to such entity. You represent and warrant that you are:
over eighteen (18) years of age or the age of majority in your jurisdiction, whichever is greater;
of legal age to form a binding contract;
not a person barred from using the Service under the laws of your country of residence or any other applicable jurisdiction;
not located in a country that is subject to a U.S. Government embargo or designated by the U.S. Government as a “terrorist supporting” country; and
not listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE.
Grant of Rights. DaDaScribe grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (a) access and view pages within the Service; (b) access and use any online software, applications or other similar components made available through the Service, only within the Service and only in the form found within the Service; and (c) install, run and use the Service on a device that you own and control, in executable, machine-readable, object code form only. All rights granted to you under this Agreement are subject to your compliance with the Terms in all material respects.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY:
DADASCRIBE’S LIABILITY ARISING FROM (i) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, (ii) FRAUD OR FRAUDULENT MISREPRESENTATION, OR (iii) ANY OTHER LOSS, DAMAGES OR LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW, SHALL BE UNLIMITED, AND SECTIONS 3.2 AND 3.3 SHALL NOT APPLY TO SUCH LIABILITY.
SUBJECT TO SECTION 3.1 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DADASCRIBE OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA OR GOODWILL, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LAW, EVEN IF DADASCRIBE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SUBJECT TO SECTION 3.1 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF DADASCRIBE AND ANY OF ITS REPRESENTATIVES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE, UNDER ANY THEORY OF LAW, SHALL NOT EXCEED THE GREATER OF (a) THE TOTAL AMOUNTS PAID BY CUSTOMER TO DADASCRIBE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (b) ONE HUNDRED U.S. DOLLARS (US $100).
EXCEPT AS PROVIDED IN SECTIONS 12.9 AND 12.10, THE TERMS REQUIRE BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TERMS OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TERMS (EACH, A “CLAIM”), AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTIONS 12.9 AND 12.10 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
Definitions
“Aggregate Data” means data that has been aggregated in a manner that does not reveal any personal information and cannot reasonably be used to identify Customer or End Users as the source of such data.
“Applicable Law” means all applicable laws and regulations, including any relating to workplace safety, anti-money laundering, anti-corruption, privacy, data protection, export control or transactions with foreign nationals.
“Agreement” (including, without limitation, the term “this Agreement”) means, collectively, the Terms, any Policy, and other addenda which govern Customer’s use of the Platform or DaDaScribe’s provision of Service.
“Credentials” means any user accounts, passwords and other authentication credentials associated with use of the Platform by Customer or End Users.
“Customer Data” means all information, content, data and other materials that Customer and End Users submit, upload, email, transmit, process or otherwise make available through the Platform.
“Customer Facilities” means Credentials, and any other account, hardware, platform, system or facility within Customer’s custody or control.
“Emergency Security Issue” means any: (i) use of the Platform by Customer or End Users that disrupts or is reasonably likely to disrupt the availability of the Platform to other users; or (ii) access to the Platform by any unauthorized third party through use of any Customer Facilities.
“End Users” means Customer’s employees and contractors who access and use the Platform pursuant to this Agreement.
“Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.
“Platform” means DaDaScribe’s proprietary platform for simple and efficient transcription, video caption, translation and other related document services.
“Policy” means any privacy or security policy and other guidelines instituted by DaDaScribe or its licensors or service providers, as may be updated from time to time.
“Suggestions” means any suggestions, comments, ideas, improvements or other feedback relating to the Platform that Customer or End Users elect to provide or make available to DaDaScribe. Suggestions do not include any Customer Data contained in, quoted in, or attached to such feedback, which remains subject to Section 7.3.
“Support” means the maintenance and support services for the Platform to be provided by DaDaScribe to Customer as specified in Exhibit A (Maintenance and Support).
Customer Obligations
Your Registration Obligations. You are required to register with DaDaScribe in order to access and use the Service. You agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Service’s registration form. Registration data and certain other information about you are governed by our Privacy Policy, which can be found at https://www.dadascribe.com/privacy/.
Account, Password and Security. You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (i) immediately notify DaDaScribe of any unauthorized use of your password or account or any other breach of security, and (ii) ensure that you exit from your account at the end of each session when accessing the Service. DaDaScribe will not be liable for any loss or damage arising from your failure to comply with this Section.
Restrictions. Except as expressly permitted under this Agreement, Customer shall not itself, nor shall it permit any other party to: (i) reproduce, modify, translate, adapt or create derivative works based upon the Platform; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of the Platform; (iii) access the Platform for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Platform; (iv) take any action that imposes an unreasonable or disproportionately heavy load on the Platform or its infrastructure or that negatively affects the ability of others to access or use the Platform; (v) rent, lease, lend, sell or sublicense the Platform or otherwise provide access to the Platform as part of a service bureau or similar fee-for-service purpose; or (vi) use the Platform in any way that does not comply with all Applicable Law.
Content. You acknowledge and agree that all information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not DaDaScribe, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service. You acknowledge and agree that by accessing or using the Service, DaDaScribe may receive certain information about you and any other third parties included in Content, including personal information, and DaDaScribe may collect, use, disclose, store and process such information in accordance with the DaDaScribe Privacy Policy. You acknowledge and agree that DaDaScribe has no obligation to pre-screen Content, although DaDaScribe reserves the right in its sole discretion to pre-screen, refuse or remove any Content.
Without limiting the generality of the foregoing sentence, the following are examples of the kind of content and/or use that is illegal or prohibited by DaDaScribe and you agree not to use the Service to:
email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person (other than the upload of Sensitive Information as permitted by Section 5.5); (v) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; or (vi) in the sole judgment of DaDaScribe, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose DaDaScribe or its users to any harm or liability of any type;
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
violate any applicable local, state, national or international law, or any regulations having the force of law;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
solicit personal information from anyone;
harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
obtain or attempt to obtain or access any materials or information through any means not intentionally made available or provided for through the Service.
DaDaScribe reserves the right to investigate and take appropriate legal action against anyone who, in DaDaScribe’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting violators to law enforcement authorities.
Sensitive Information. You may choose to upload content that contains non-public, sensitive financial or medical information, or non-public, sensitive personal data, such as Social Security numbers, driver’s license numbers, bank account numbers, passport or visa numbers, and credit card numbers (“Sensitive Information”). DaDaScribe does not represent that the Service meets any heightened security, privacy, or regulatory standard that may apply to Sensitive Information, and you upload it solely at your own risk. YOU ARE SOLELY RESPONSIBLE FOR ANY SENSITIVE INFORMATION YOU UPLOAD, INCLUDING OBTAINING ANY REQUIRED CONSENTS AND COMPLYING WITH ALL LAWS THAT APPLY TO IT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DADASCRIBE DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY LOSS, DAMAGE, CLAIM, OR OTHER CONSEQUENCE ARISING FROM OR RELATED TO YOUR UPLOAD OF SENSITIVE INFORMATION. SENSITIVE INFORMATION IS CUSTOMER DATA FOR PURPOSES OF YOUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 9. Nothing in this Section limits DaDaScribe’s liability where such a limitation is prohibited by applicable law. Protected health information subject to the Health Insurance Portability and Accountability Act (HIPAA) may be uploaded only as permitted by Section 5.6, and a Business Associate Agreement in effect under Section 5.6 controls over this Section 5.5 where they conflict.
Protected Health Information. If you are a covered entity or business associate under HIPAA and intend to upload protected health information (as defined under HIPAA, “PHI”), you must contact support@dadascribe.com to request and sign DaDaScribe’s Business Associate Agreement (“BAA”) before uploading it. You may not upload PHI unless a BAA between you and DaDaScribe is in effect. If a BAA is in effect, it governs that PHI and controls over these Terms where they conflict.
Technical Requirements. Customer and End Users shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software and services required to access or provide access to the Platform, including the Customer Facilities and any other computers, mobile devices, operating systems, web browsers and storage devices.
Protection. Customer shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Customer Facilities. In the event that Customer becomes aware of any unauthorized access to or use of the Platform, Customer shall promptly give written notice to DaDaScribe of such unauthorized access or use and make reasonable efforts to eliminate such unauthorized access or use. Customer shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to and use of the Platform. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care.
Customer Back-Up. Customer acknowledges that DaDaScribe may establish general practices and limits concerning use of the Platform, including without limitation the maximum period of time that Customer Data will be retained by the Platform and the maximum storage space that will be allotted on DaDaScribe’s servers on Customer’s behalf. Customer shall be responsible for backing-up Customer Data.
Compliance with Law. Customer shall be solely responsible for complying with Applicable Law relating to Customer’s access to and use of the Platform and its collection, storage, processing and use of Customer Data.
Policies. In addition to the terms and conditions of this Agreement, access to and use of the Platform shall comply with and be subject to any Policies.
Fees, Plans, and Used Time
Fees. To use any of the premium Services, such as a Standard or Pro plan, you will be required to make one or more payments through the Stripe payment platform by providing information regarding your credit card or other payment method. You represent and warrant to DaDaScribe that such information is true and that you are authorized to use such payment method. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay DaDaScribe the amount that is specified in the Service in accordance with the terms therein and this Agreement. All fees specified herein are denominated in United States dollars unless otherwise specified. Paid subscription plans renew automatically at the end of each billing period for a new billing period of the same length (for example, monthly), and you authorize DaDaScribe, through Stripe, to charge your payment method the applicable fee for each renewal period until you cancel. You can cancel online at any time; cancellation takes effect immediately, as described in Section 6.3.
Pricing. DaDaScribe’s current pricing is reflected on the Site, and DaDaScribe may change its prices from time to time. For an existing subscription, a price change will take effect at the start of your next billing period that begins at least seven (7) days after DaDaScribe notifies you of the change by email to the address associated with your account. DaDaScribe will send that notice no more than thirty (30) days before the change takes effect, will include information on how to cancel, and will also post the new pricing on the Site. You may cancel your subscription as described in Section 6.3 before the price change takes effect. If you do not cancel, your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount.
Cancellation, refunds, and used time claims. You can cancel your paid subscription at any time, with no notice period, in either of the following ways. You can do either one yourself online, or ask us to do it for you by contacting us at support@dadascribe.com.
Downgrade to the free plan on the plans page. Your paid plan and its paid features end immediately (not at the end of the current billing period), no further renewal charges will be made, and your account remains open on the free plan. Any transcription time you purchased under the paid plan remains on your account and can still be used.
Close your account using the “CLOSE ACCOUNT” button inside your Account Info panel. Your paid plan and all access to your account and the Service end immediately, no further renewal charges will be made, and your account and its files (including your uploaded media, recordings, transcriptions, translations and captions) are deleted immediately. Any transcription time remaining on your account is lost when the account is closed, unless it is refunded under this Section 6.3. Before closing your account, download any transcriptions and other files you want to keep, because you will not be able to access or recover them after closing.
Refunds. You can request a full refund within 48 hours from your last invoice if you have used less than 10% of your available transcription time. DaDaScribe can also agree to refund any paid fee outside those conditions if the Customer gives reasonable reasons. Partial refunds could also be provided at any moment of closing/downgrading/upgrading of the Customer’s current plan. Such partial refunds would be subject to the rule of “proration” explained below. Customer can also ask for refunds for extra purchased time or ask to have their time credited back if the transcription has not given satisfactory results; such a request must be made within 48 hours after the affected transcription is completed. If DaDaScribe terminates this Agreement for convenience, Section 8.1 applies. Except as provided in this Section 6.3 or Section 8.1, or as required by applicable law, fees are non-refundable.
Proration. Proration rules for cancellations, upgrades, or downgrades are based on Stripe’s proration rules. Changes to a subscription such as upgrading or downgrading can result in prorated charges. For example, if a customer upgrades from a 10 USD per month subscription to a 20 USD option, they’re charged prorated amounts for the time spent on each option. Assuming the change occurred halfway through the billing period, the customer is billed an additional 5 USD: -5 USD for unused time on the initial price, and 10 USD for the remaining time on the new price. The prorated amount is calculated as soon as the subscription is updated. The current billing period’s start and end times are used to calculate the cost of the subscription before and after the change.
Duplicative Uploads. Customer acknowledges and agrees that it shall be responsible for duplicative uploads of content or selecting the incorrect service type.
Taxes. Any and all amounts payable hereunder by Customer are exclusive of any value-added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes.
Intellectual Property
Responsibility for Data. Customer and End Users, and not DaDaScribe, are solely responsible for all Customer Data and giving all required notices and obtaining all necessary consents (including all required permissions from Intellectual Property holders) before submitting Customer Data through or to the Platform. Customer and End Users shall not submit, upload, email, transmit or otherwise make available through the Platform any data not owned by Customer or End Users or for which Customer and End Users do not have all necessary authorization to submit, upload, email, transmit or otherwise make available through the Platform.
Customer Ownership. DaDaScribe acknowledges and agrees that, as between Customer and DaDaScribe, Customer owns all right, title and interest (including all Intellectual Property) in and to Customer Data and any translations, transcriptions, or captions of such Customer Data. During the term of this Agreement, Customer hereby grants DaDaScribe and its service providers a worldwide, royalty-free, non-exclusive license to use, reproduce, modify, adapt, create derivative works from, perform, display, distribute, make and have made Customer Data (including Aggregate Data) as necessary for DaDaScribe to: (i) provide access to the Platform to Customer and End Users (including any maintenance, calibration, diagnostic and troubleshooting); and (ii) monitor the performance of the Platform. This license is subject to Section 7.3.
No Training on Customer Data. Notwithstanding anything to the contrary in this Agreement, DaDaScribe does not use Customer Data, including the audio, video and other content you upload and the transcriptions, translations and captions generated from it, to train, fine-tune or otherwise improve its artificial intelligence or machine learning models. This also applies to Aggregate Data to the extent it is derived from the content of Customer Data. Among the information that customers and users provide, DaDaScribe uses only Suggestions for that purpose, as described in Section 7.6. DaDaScribe’s third-party service providers process Customer Data only on DaDaScribe’s behalf and as necessary to provide the Service, and they have no right to use Customer Data for their own purposes, including to train or improve their own artificial intelligence or machine learning models.
DaDaScribe Ownership. Customer acknowledges and agrees that, as between DaDaScribe and Customer, DaDaScribe owns all right, title and interest (including all Intellectual Property) in and to the Platform and all improvements, enhancements or modifications thereto, including all data therein (except for Customer Data).
Aggregate Data. Customer acknowledges and agrees that DaDaScribe may collect or generate Aggregate Data in connection with providing Customer and End Users with access to the Platform, and Customer hereby grants DaDaScribe and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data for any lawful purpose, subject to Section 7.3.
Suggestions. You acknowledge and agree that any Suggestions provided by you to DaDaScribe are non-confidential, shall become the property of DaDaScribe and DaDaScribe will be entitled to the unrestricted use and dissemination of these Suggestions for any purpose, commercial or otherwise, including to improve the Service and to train and improve DaDaScribe’s artificial intelligence and machine learning models, without acknowledgment or compensation to you. For clarity, Suggestions are not Customer Data for purposes of Section 7.3.
Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright or trademark notices or other notices or disclaimers that appear within the Platform or any other materials made available by DaDaScribe.
Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.
Third-Party Software. Some components of the Platform may be provided with or have incorporated into them third-party software licensed under open source license agreements or other third-party license terms (“Third-Party Software”). Customer acknowledges and agrees that: (i) DaDaScribe has no proprietary interest in any Third-Party Software; (ii) notwithstanding anything to the contrary, any Third-Party Software is provided “AS IS,” with all faults, and neither the licensor of Third-Party Software nor DaDaScribe shall be liable for any direct, indirect, incidental, special, punitive or consequential damages, or lost profits or cost of cover, relating to or arising from Third-Party Software, including access to or use of Third-Party Software; and (iii) Third-Party Software may be subject to separate terms and conditions set forth in the respective license agreements relating to such software.
Term, Suspension and Termination
Term. The term of this Agreement will commence on the date you begin using the Service and will continue as long as you maintain a DaDaScribe account, unless terminated in accordance with this Agreement. Customer and any user may cancel a paid subscription at any time as described in Section 6.3, and may close their account and terminate this Agreement at any time, with no notice period, by using the “CLOSE ACCOUNT” button inside the Account Info panel or by contacting support@dadascribe.com. Closing an account ends access to the account and the Service immediately and deletes the account and its files immediately; Section 6.3 explains what happens to remaining transcription time, and you should download your files before closing. DaDaScribe may terminate this Agreement for any reason (for convenience) upon thirty (30) days’ notice to Customer, in which case DaDaScribe will refund the prorated portion of any prepaid fees attributable to the unused part of the then-current billing period, together with the purchase price of any unused extra transcription time that Customer purchased separately from its subscription plan. DaDaScribe may also suspend or terminate immediately as provided in Section 8.2.
Suspension and Immediate Termination. DaDaScribe may, immediately and without prior notice, suspend or terminate Customer’s or any End User’s access to the Platform, or terminate this Agreement: (i) if Customer or any End User breaches this Agreement or any Policy; (ii) in case of system abuse; (iii) in the event of an Emergency Security Issue; or (iv) if required by Applicable Law or by order of a court or governmental authority. DaDaScribe will make commercially reasonable efforts to limit any suspension for an Emergency Security Issue to the minimum extent and duration necessary to eliminate the Emergency Security Issue.
Dormant Account. If a free account has not been used for six (6) months, DaDaScribe reserves the right to delete such an account and any related files from its server and database without notice.
Maximum Transcription Storage Retention. DaDaScribe will retain the Customer’s and End Users’ files, meaning the audio and video files and browser recordings they upload or submit (other than through the API) and the transcriptions, translations, captions and other files generated from them, for 24 months (2 years) on its servers after the transcription is completed. After that, the files will be deleted without notice. Audio, video and other files submitted through the API, and the files generated from them, are deleted one (1) hour after the job is complete; generated files are available for download during that hour. Closing an account deletes the account and its files immediately, as described in Section 6.3. Files may also be deleted earlier under Section 8.3 or at Customer’s request under Exhibit B. Residual copies may remain in backup systems as described in Exhibit B. It is the Customer’s and End Users’ responsibility to download or make a backup of their files before they are deleted.
Termination for Cause. Notwithstanding anything to the contrary, this Agreement may be terminated as follows: (i) by Customer, if DaDaScribe materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice from Customer (Customer may also terminate at any time under Section 8.1); (ii) by DaDaScribe, immediately and without any cure period, as provided in Section 8.2; or (iii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any Applicable Law in force for the winding up or liquidation of such party’s business.
Events Upon Termination. Upon expiration or termination of this Agreement for any reason: (i) all rights granted by the parties under this Agreement shall immediately terminate; and (ii) Customer shall immediately cease all use of the Platform made available under this Agreement. Upon expiration or termination of this Agreement each party shall immediately cease all use of the other party’s Confidential Information (as defined in Section 10.1) and, upon written request, destroy all copies of such Confidential Information that are within its custody or control. Notwithstanding the termination of this Agreement for any reason, neither party will be relieved of any duty, obligation, debt or liability that arose or accrued prior to the effective date of termination. Any refund of fees upon cancellation or termination is governed by Section 6.3, except that a termination by DaDaScribe for convenience is governed by Section 8.1.
Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 3 (Limitation of Liability); 5.5 (Sensitive Information); 5.6 (Protected Health Information); 6 (Fees, Plans, and Used Time); 7 (Intellectual Property); 8.6 (Events Upon Termination); 8.7 (Survival); 9 (Indemnification); 10 (Confidential Information); 11 (Disclaimer of Warranties); 12 (Miscellaneous); and Exhibit B (Security), for as long as DaDaScribe retains Customer Data.
Indemnification
DaDaScribe Indemnification. DaDaScribe will defend Customer against any claim, demand, suit, or proceeding (“Third-Party Claim”) made or brought against Customer by a third party alleging that the use of the DaDaScribe Service as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by DaDaScribe) Customer in connection with any such Third-Party Claim; provided that
Customer will promptly notify DaDaScribe of such Third-Party Claim;
DaDaScribe will have the sole and exclusive authority to defend and/or settle any such Third-Party Claim (provided that DaDaScribe may not settle any Third-Party Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability); and
Customer reasonably cooperates with DaDaScribe in connection therewith. If the use of the DaDaScribe Service by Customer has become, or in DaDaScribe’s opinion is likely to become, the subject of any claim of infringement, DaDaScribe may at its option and expense (a) procure for Customer the right to continue using and receiving the DaDaScribe Service as set forth hereunder; (b) replace or modify the DaDaScribe Service to make it non-infringing (with comparable functionality); or (c) if the options in clauses (a) or (b) are not reasonably practicable, terminate this Agreement.
Customer Indemnification. Customer agrees that DaDaScribe shall have no liability and Customer shall indemnify, defend and hold DaDaScribe harmless against any losses, damages, liabilities, judgments, settlements, fines, penalties, costs and expenses, including reasonable attorneys’ fees (collectively, “Loss”), to the extent arising from any Third-Party Claim if such Third-Party Claim is caused in whole or in part by:
Customer’s breach of this Agreement or noncompliance with any Policy;
use of the DaDaScribe Service by Customer not in accordance with this Agreement;
Customer Data; or
the combination, operation or use of the DaDaScribe Service with other applications, portions of applications, product(s) or services where the DaDaScribe Service would not by itself be infringing.
This Section 9 states DaDaScribe’s sole and exclusive liability and obligation, and Customer’s exclusive remedy for any claim of any nature related to infringement or misappropriation of intellectual property.
Procedure. The indemnified party shall:
give the indemnifying party prompt written notice of any indemnified claim; provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 9, except to the extent the indemnifying party has been prejudiced thereby;
cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and
give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.
Confidential Information
Definition. “Confidential Information” means all business or technical information of a party whether it is received, accessed or viewed by the recipient, whether prior to or after the execution of this Agreement, in writing, visually, electronically or orally. Confidential Information shall include, without limitation, pricing information, custom service offerings, technical information, marketing and business plans, databases, specifications, formulations, tooling, prototypes, sketches, models, drawings, procurement requirements, engineering information, product samples, computer software (source and object codes), forecasts, identity or details about actual or potential customers or projects, clinical trials, techniques, inventions, discoveries, know-how and trade secrets, and any other information that could reasonably be considered as confidential information. Confidential Information also includes all such business or technical information of any third party that is in the possession of a party subject to the exceptions set forth in this Section.
Confidential Information does not include information that:
was available to recipient prior to disclosure of such information to the recipient and free of any confidentiality obligation in favor of the disclosing party and known to the recipient at the time of disclosure;
is made available to the recipient from a third party not known by the recipient at the time of such availability to be subject to a confidentiality obligation in favor of the disclosing party;
is made available to third parties by the disclosing party without restriction on the disclosure of such information;
is or becomes available to the public other than as a result of disclosure by the recipient prohibited by this Agreement; or
is developed independently by a party or its directors, officers, members, partners, employees, consultants, contractors, agents, representatives or affiliated entities (collectively, “Associated Persons”).
Non-Disclosure. The recipient will keep secret and will not disclose to anyone any of the Confidential Information, other than furnishing the Confidential Information to Associated Persons; provided that such Associated Persons are bound by agreements respecting confidential information. The recipient will use reasonable care and adequate measures to protect the security of the Confidential Information and to attempt to prevent any Confidential Information from being disclosed or otherwise made available to unauthorized persons or used in violation of the foregoing.
Notwithstanding anything to the contrary herein, a recipient is free to make, and this Agreement does not restrict, disclosure of any Confidential Information in a judicial, legislative or administrative investigation or proceeding or to a government or other regulatory agency; provided that, if permitted by law, the recipient provides to the disclosing party prior notice of the intended disclosure and permits the disclosing party to intervene therein to protect its interests in the Confidential Information, and cooperates with and assists the disclosing party in seeking to obtain such protection.
Data Security. DaDaScribe will protect Customer Data as described in Exhibit B (Security).
No Marketing Use. DaDaScribe will not use Customer’s name, logo, trademarks or personal information in its marketing materials, website or other publicity without Customer’s prior written consent.
DISCLAIMER OF WARRANTIES
THE PLATFORM AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT (INCLUDING EXHIBIT B) OR IN A BUSINESS ASSOCIATE AGREEMENT UNDER SECTION 5.6, EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PLATFORM, ANY DATA OR RESULTS OBTAINED THROUGH THE PLATFORM, AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF THE PLATFORM AND SUCH SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER’S OR END USERS’ REQUIREMENTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY AND COMPLETENESS OF ALL DATA AND RESULTS SUBMITTED TO OR OBTAINED FROM THE PLATFORM BEFORE TAKING OR OMITTING ANY ACTION BASED UPON SUCH DATA OR RESULTS. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE SERVICE COMMITMENTS DESCRIBED ON THE SITE SHALL BE THE RE-PERFORMANCE OF THE APPLICABLE SERVICES.
Miscellaneous
Independent Contractors. The relationship between DaDaScribe and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
Notices. All inquiries, routine communications and notices from Customer to DaDaScribe must be sent by email to support@dadascribe.com. Any notice regarding breach or termination of this Agreement, indemnification, arbitration, or any other legal matter must be sent both by email to that address and by overnight courier to:
InfiniStrategy, LLC (DaDaScribe)
29911 Niguel Road, #6992
Laguna Niguel, CA 92677 - USA
DaDaScribe’s communications and notices to Customer, including legal notices, may be sent by email to the email address associated with Customer’s account or posted on the Site or within the Service. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a business day, as of the beginning of the first business day following the time posted or delivered. For purposes of counting days for notice periods, the business day on which the notice is deemed received counts as the first day. Notices shall be given in the English language.
Assignment. Customer may not assign this Agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of DaDaScribe. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between this Agreement and any Policy, the terms and conditions of this Agreement shall take precedence.
Amendment. DaDaScribe may update this Agreement from time to time. When we do, we will post the updated Terms on this page and change the “Last updated” date at the top of the Terms. If a change is material, we will also notify you, before the change takes effect, by email to the address associated with your account or by a notice within the Service. Updated Terms apply only prospectively: they govern your use of the Service from the date they take effect, and they do not apply to any Claim (as defined in Section 3.4) arising from events that occurred before that date, which will continue to be governed by the version of the Terms in effect when those events occurred. Your continued use of the Service after updated Terms take effect constitutes your acceptance of them. If you do not agree to updated Terms, you must stop using the Service and may close your account as described in Section 8.1.
Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under Applicable Law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of California, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Arbitration. Except as provided in this Section 12.9, the parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be submitted to binding arbitration administered by the American Arbitration Association (“AAA”) or a comparable arbitration service and conducted by one arbitrator. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law. Either party may bring an action in any court of competent jurisdiction to compel arbitration under the Agreement, or to enforce an arbitration award.
If you are an individual who uses the Service primarily for personal, family or household purposes (a “Consumer Customer”), the arbitration shall be administered by the AAA under its Consumer Arbitration Rules in effect at the time the dispute or claim arose. Any hearing shall take place, at the Consumer Customer’s choice, in the county where the Consumer Customer resides or by video conference or telephone. DaDaScribe will pay the filing, administrative and arbitrator fees that the AAA Consumer Arbitration Rules require a business to pay. The confidentiality and appeal provisions in the following paragraph do not apply to arbitrations with Consumer Customers.
For all other Customers (each, a “Business Customer”), the arbitration shall take place in Los Angeles, California, and shall be conducted in accordance with the Commercial Arbitration Rules of the AAA in effect at the time the dispute or claim arose. Neither party nor an arbitrator may disclose the existence, content, or results of any arbitration with a Business Customer without the prior written consent of both parties. Either party shall be permitted to appeal the final award in an arbitration with a Business Customer under the AAA’s Optional Appellate Arbitration Rules in effect at the time the dispute or claim arose. Grounds for vacating such an award shall include, in addition to those enumerated under the Federal Arbitration Act, 9 U.S.C. §1, et seq., that the arbitrator committed errors of law that are material and prejudicial. The appeal shall be determined upon the written documents submitted by the parties, with no oral argument. After the appellate rights described in this paragraph have been exercised or waived, the parties shall have no further right to challenge the award.
Notwithstanding the foregoing, (i) either party may bring an individual action in small claims court for any dispute or claim within the scope of that court’s jurisdiction, as long as the action remains in that court and proceeds only on an individual basis; and (ii) Customer and DaDaScribe may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect such party’s intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 12.9.
Class and Collective Action Waivers. Customer and DaDaScribe mutually agree that by entering into this Agreement and agreeing to the arbitration provisions set forth herein, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an arbitrator will not have any authority to hear or arbitrate any class and/or collective action (“Class Action Waiver”). The Class Action Waiver applies to Consumer Customers and Business Customers alike. Notwithstanding any other clause contained in the arbitration provision set forth in Section 12.9 or the AAA rules, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The Class Action Waiver will be severable from the arbitration agreement in this Agreement in any case in which (1) the dispute is filed as a class and/or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such case, the class and/or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. Nothing in this Agreement waives a Consumer Customer’s right to seek public injunctive relief to the extent such a waiver is unenforceable under applicable law; any claim for such relief shall be severed, stayed pending the completion of arbitration of all other claims, and decided by a court of competent jurisdiction.
No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
Force Majeure. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.
California Notices. Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at InfiniStrategy, LLC (DaDaScribe), 29911 Niguel Road, #6992, Laguna Niguel, CA 92677 - USA, or by email at support@dadascribe.com.
DaDaScribe does not sell or share Customer personal information, as the terms “sell,” “share” and “personal information” are defined in the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (together, the “CCPA”). DaDaScribe collects and uses Customer personal information only to provide, maintain, secure and improve the Service and as otherwise described in the Privacy Policy, and uses Customer Data only as licensed under Section 7.2. DaDaScribe does not use Customer Data, or any personal information contained in it, to train or improve its artificial intelligence or machine learning models (see Section 7.3). Aggregate Data (see Section 7.5) is de-identified and cannot reasonably be used to identify Customer, End Users or any other individual. DaDaScribe implements reasonable security measures as appropriate under applicable law, as described in Exhibit B, and will reasonably assist Customer with any request received from an individual under the CCPA or other applicable law.
GENERAL
Contact. Customer may contact DaDaScribe via support@dadascribe.com.
Hours. DaDaScribe shall provide Support during normal business hours, Monday through Friday, from 9:00 a.m. to 5:00 p.m. Pacific Time (excluding U.S. federal holidays).
UPTIME
Percentage. DaDaScribe will use commercially reasonable efforts to minimize downtime of the Platform and to ensure a Monthly Availability Percentage of 98.0%, except as set forth below. The Monthly Availability Percentage is calculated on an aggregate monthly basis as follows: Monthly Availability Percentage = ((total minutes in the month – total number of minutes that the Platform is inoperable in that month) / total minutes in the month) × 100.
Exclusions. The Monthly Availability Percentage excludes (1) periods of scheduled maintenance; (2) issues caused by factors outside of DaDaScribe’s reasonable control; (3) issues resulting from Customer’s actions or inactions, or the actions or inactions of a third party; or (4) issues that result from Customer’s equipment or third party equipment.
Safeguards. DaDaScribe maintains commercially reasonable administrative, technical and physical safeguards designed to protect Customer Data against unauthorized access, use, alteration, loss or disclosure, consistent with industry standards and applicable law.
Access. DaDaScribe limits access to Customer Data to its personnel and service providers who need that access to provide, maintain, support or secure the Service.
Deletion. Upon Customer’s request, DaDaScribe will delete Customer Data within a reasonable time or as otherwise required by applicable law, except that residual copies may remain in backup systems until they are overwritten in the ordinary course, and DaDaScribe may retain Customer Data to the extent required by applicable law. Any retained copies remain subject to this Exhibit B.
Security Breaches. If DaDaScribe becomes aware of a breach of security that results in unauthorized access to or acquisition of Customer Data, DaDaScribe will notify Customer without unreasonable delay and as required by applicable law, and will take reasonable steps to contain and remediate the breach.
No Guarantee. No method of transmitting or storing data is completely secure. Except as expressly stated in this Exhibit B or in a Business Associate Agreement under Section 5.6, DaDaScribe does not guarantee that Customer Data will be free from unauthorized access, and Customer remains responsible for protecting its Credentials and backing up Customer Data as described in Section 5.