TEXTFRIENDLY END USER LICENSE AGREEMENT
February 4, 2010
For purposes of this agreement "TEXTFRIENDLY" collectively refers to TextFriendly Inc. a corporation incorporated in Michigan, and the service providers and software licensors providing, among other software and services, speech recognition and text-to-speech resources supporting speech commands, rendering user prompts and reading back email and other content and, for greater certainty, includes the hosts and providers of the "www.textfriendly.net", and other related and designated web sites or IP addresses and/or reseller websites; and this agreement shall ensure to the benefit of each such person.
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU HAVE READ, UNDERSTOOD AND AGREE TO BE LEGALLY BOUND BY THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF TEXTFRIENDLY ONLINE SERVICE AND ACCESS TO VOICE BASED SOFTWARE AND APPLICATIONS, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "DECLINE" BUTTON AND MAY NOT USE THE SERVICE.
1. Privacy, Security and Disclosure
TEXTFRIENDLY privacy and security policies may be viewed at "www.textfriendly.net", By clicking "Accept" You are confirming Your understanding of the privacy and security policies. TEXTFRIENDLY reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. When You log in, You may be asked whether or not You wish to receive marketing and other non-critical service-related communications from TEXTFRIENDLY from time to time. You may opt out of receiving such communications at that time or at any subsequent time by changing Your preference under Personal Setup. The Service is a hosted online application and TEXTFRIENDLY may occasionally need to notify all Users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.
2. License Grant and Restrictions
You are hereby granted a limited, non-exclusive, non-transferable, single-user worldwide right to use the Service, solely for Your own purposes, subject to the terms and conditions of this Agreement, by the provider of the Service, a service provider and licensor to TextFriendly Inc. All rights not expressly granted to You are reserved by such service provider and licensor, the grantor of the license herein.
You may not access the Service if You are a competitor of TEXTFRIENDLY, except with TEXTFRIENDLY's prior written consent. In addition, You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content (as hereinafter defined) in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual.
You may use the Service only for Your internal purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or in violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) attempt to gain unauthorized access to the Service or its related systems or networks; (vi) submit any form of automated or recorded queries unless expressly authorized by TEXTFRIENDLY in writing or (vii) perform any other form of high volume usage beyond reasonable personal use.
TEXTFRIENDLY reserves the right to refuse service, terminate accounts, and/or cancel the license at its discretion, for any reason whatsoever including, without limitation, if TEXTFRIENDLY believes that Your conduct violates any agreement with TEXTFRIENDLY, violates any applicable law or may be harmful to the interests of TEXTFRIENDLY.
3. Your Responsibilities
TEXTFRIENDLY STRONGLY ADVOCATES HANDS-FREE USE OF THE SERVICES.
You are responsible for all activity occurring under Your User account(s) and shall abide by all applicable local, state or provincial, national and foreign laws, treaties and regulations in connection with Your use of the Service, including those related to safe and proper operation of a moving vehicle, data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify TEXTFRIENDLY immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to TEXTFRIENDLY immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by You; (iii) not impersonate another TEXTFRIENDLY User or provide false identity information to gain access to or use the Service; (iv) have the right and authority to enter into this Agreement, and comply with Your obligations under this Agreement; and (v) cooperate with TEXTFRIENDLY and provide information requested to assist TEXTFRIENDLY in investigating or determining whether there has been a breach of this Agreement and provide access to all devices on which the TEXTFRIENDLY services were used.
YOUR WIRELESS CARRIER COSTS
When you use the Service normal wireless carrier charges are incurred, including voice calling charges, data charges and roaming charges. You are solely responsible for these charges.
4. Account Information and Data
TEXTFRIENDLY does not own any data, information or material that You submit to the Service in the course of using the Service ("Customer Data"). You, not TEXTFRIENDLY, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness or right to use of all Customer Data, and TEXTFRIENDLY shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. By entering into this Agreement and using the services, You consent to the collection and processing of Customer Data that You are requested to provide during the registration and installation process. All of this Customer Data will be collected and handled by TEXTFRIENDLY pursuant to the terms of the privacy and security policies. TEXTFRIENDLY reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Your non-payment. Upon termination for cause, Your right to access or use Customer Data immediately ceases, and TEXTFRIENDLY shall have no obligation to maintain or forward any Customer Data.
5. Speech Recognition
TEXTFRIENDLY USES A VARIETY OF TRANSCRIPTION METHODS INCLUDING AUTOMATED CONVERSION, MANUAL TRANSCRIPTION AND HYBRID PROCESSES DEPENDING ON THE ACCURACY LEVEL ACHIEVED IN THE TRANSCRIPTION PROCESS. YOU MAY CHOOSE UNDER PERSONAL SETTINGS NOT TO HAVE YOUR MESSAGES SENT TO HUMAN TRANSCRIPTIONISTS.
TEXTFRIENDLY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE VOICE-TO-TEXT TRANSLATION OF MESSAGES IS 100% ACCURATE. YOU ACKNOWLEDGE AND AGREE THAT VOICE-TO-TEXT TRANSLATION IS INHERENTLY IMPERFECT AND AS A RESULT, MESSAGES MAY CONTAIN INACCURACIES, TYPOGRAPHICAL ERRORS AND MAY CONTAIN CONTENT THAT COULD BE BELIEVED TO BE OFFENSIVE OR OBSCENE OR WHICH IS INCORRECT OR CONFUSING. TEXTFRIENDLY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY CONTENT SENT OR PROVIDED AS A RESULT OF THE SERVICES.
6. Intellectual Property Ownership
A service provider and licensor to TextFriendly Inc. owns all right, title and interest, including all related Intellectual Property Rights, in and to the TEXTFRIENDLY Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the TEXTFRIENDLY Technology or the Intellectual Property Rights owned by such service provider and licensor. The TEXTFRIENDLY name, the TEXTFRIENDLY logo, and the product names associated with the Service are trademarks of TEXTFRIENDLY or third parties, and no right or license is granted to use them. The TEXTFRIENDLY services are protected by Canadian, U.S. and international trademark, copyright and patent laws and international copyright treaties, as well as other intellectual property laws and treaties. There are penalties both civil and criminal for intellectual property infringement.
You acknowledge and agree that the Service was developed at considerable time and expense by a service provider and licensor to TextFriendly Inc. and is confidential to and contains trade secrets of such service provider and licensor. You agree not to disclose or provide access to the Service to any person except to those individuals with a need for access to exercise the license rights conferred hereby. You do not have the right to obtain or use any source code applicable to the Service, and may not translate, reverse engineer, decompile or disassemble any Software applicable to the Service, or otherwise attempt to derive the source code of such Software and agree not to authorize, allow or enable any other person to do so.
This Agreement and Your license to use the Services commence upon the Effective Date or Your acceptance of this Agreement by accessing, installing, downloading or otherwise using any Services or software and will continue so long as You remain in compliance with the terms and conditions of this Agreement, and is effective until the termination of this Agreement, as set out herein.
9. Billing and Renewal
Unless otherwise specified by written agreement, TEXTFRIENDLY charges and collects in advance for use of the Service. TEXTFRIENDLY will automatically renew and bill Your credit card or issue an invoice to You (a) every month for monthly licenses, (b) every quarter for quarterly licenses, (c) each year on the subsequent anniversary for annual licenses, or (d) as otherwise mutually agreed upon. The renewal charge will be equal to the license fee in effect during the prior term, unless TEXTFRIENDLY has given You at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. TEXTFRIENDLY fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties. No refunds will be given after ten days from the invoice date.
You agree to provide TEXTFRIENDLY with complete and accurate billing and contact information. This information includes Your name, address, e-mail address and telephone number. You agree to update this information within 30 days of any change to it. If the contact information You have provided is false or fraudulent, TEXTFRIENDLY reserves the right to terminate Your access to the Service in addition to any other legal remedies.
If You believe Your bill is incorrect, You must contact us in writing within 10 days of the invoice date to be eligible to receive an adjustment or credit.
10. Non-Payment and Suspension
In addition to any other rights granted to TEXTFRIENDLY herein, TEXTFRIENDLY reserves the right to suspend or terminate this Agreement and Your access to the Service, if Your account becomes delinquent. Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. If You or TEXTFRIENDLY initiates termination of this Agreement, You will be obligated to pay the balance due on Your account computed in accordance with the Charges and Payment of Fees section above. You agree that TEXTFRIENDLY may charge such unpaid fees to Your credit card or otherwise bill You for such unpaid fees.
You agree and acknowledge that TEXTFRIENDLY has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Your account is 30 days or more delinquent.
11. Termination upon Expiration
This Agreement commences on the Effective Date. The Initial Term will be as You elect during the online subscription process or as otherwise mutually agreed upon, commencing on the date You agree to pay for the Service by completing the online subscription form or otherwise. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at TEXTFRIENDLY's then current fees. Either party may terminate this Agreement, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the case of free trials, any notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination.
12. Termination for Cause
Any breach of Your payment obligations or unauthorized use of the TEXTFRIENDLY Technology or Service will be deemed a material breach of this Agreement. TEXTFRIENDLY, in its sole discretion, may terminate with or without notice Your password, account or use of the Service if You breach or otherwise fail to comply with this Agreement. In addition, TEXTFRIENDLY may terminate a free account at any time in its sole discretion. You agree and acknowledge that TEXTFRIENDLY has no obligation to retain the Customer Data, and may delete such Customer Data, if You have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
13. Representations and Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. TEXTFRIENDLY represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online TEXTFRIENDLY help documentation under normal use and circumstances. You represent and warrant that You have not falsely identified Yourself nor provided any false information to gain access to the Service and that Your billing information is correct.
YOU AGREE TO INDEMNIFY AND HOLD TEXTFRIENDLY HARMLESS FROM AND AGAINST ANY LOSS, LIABILITY, COST, EXPENSE OR DAMAGE (INCLUDING REASONABLE LEGAL FEES) ARISING DIRECTLY OR INDIRECTLY OUT OF ANY CLAIM, SUIT ACTION OR JUDGMENT BROUGHT AGAINST TEXTFRIENDLY RELATED TO ANY ACT OR OMISSION BY YOU, INCLUDING ANY REPRESENTATIONS, WARRANTIES OR COVENANTS MADE BY YOU, ANY FAILURE BY YOU TO COMPLY WITH ANY OF THE TERMS OF THIS LICENSE AGREEMENT, OR VIOLATION BY YOU OF ANY PROVINCIAL, STATE, FEDERAL OR INTERNATIONAL LAWS OR REGULATIONS OR ANY THIRD PARTY RIGHTS.
15. Disclaimer of Warranties
TEXTFRIENDLY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. TEXTFRIENDLY DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TEXTFRIENDLY.
16. Internet Delays
TEXTFRIENDLY'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, VOICE AND ELECTRONIC COMMUNICATIONS. TEXTFRIENDLY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
17. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S SERVICE PROVIDERS AND LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. Additional Rights
AS SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU, AND YOU MAY HAVE SPECIFIC LEGAL RIGHTS THAT VARY BETWEEN JURISDICTIONS. THE LIMITATIONS OF THIS SECTION AND SECTION 18 SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM.
20. Local Laws and Export Control
You acknowledge that the Software includes encryption software that may be controlled for import, export or purposes under the laws and regulations of the country(ies) and/or territory(ies) in which the Software is used ("Applicable Law"). In particular, You acknowledge that the Software is of Canadian origin, is subject to Canadian laws and regulations, and may be subject to restrictions on export or re-export to countries subject to Canadian embargoes, or to persons or entities prohibited from receiving Canadian exports. You hereby agree to indemnify TEXTFRIENDLY from any claims, actions, liability or expenses (including reasonable lawyers' fees) resulting from Your failure to act in accordance with the certifications and commitments in this Section.
TEXTFRIENDLY may give notice by means of a general notice on the Service, electronic mail to Your e-mail address on record in TEXTFRIENDLY's account information, or by written communication sent by first class mail or pre-paid post to Your address on record in TEXTFRIENDLY's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to TEXTFRIENDLY (such notice shall be deemed given when received by TEXTFRIENDLY) at any time by any of the following: letter sent by confirmed facsimile to TEXTFRIENDLY at the following fax number: (905) 305-8255; email to firstname.lastname@example.org or letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to TEXTFRIENDLY at the following address (whichever is appropriate): TEXTFRIENDLY, inc., 28446 Franklin Road, Southfield, MI 48034 addressed to the attention of: Vice President Operations.
22. Modification to Terms
TEXTFRIENDLY reserves the right to modify, from time to time, the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on our website. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Your consent to such changes.
(a) Survival. Provisions of this License Agreement related to title and ownership, confidentiality, limitation of liability and indemnity shall continue in force after any termination of this or any subsequent agreement.
(b) No Third Party Beneficiaries. Except as otherwise specifically stated in this License Agreement, the provisions herein are for the benefit of the Parties and not for any other person or entity.
(c) Waivers of Default. Waiver by either Party of any default by the other Party shall not be deemed a continuing waiver of such default or a waiver of any other default.
(d) Governing Law and Dispute Resolution. This License Agreement is governed by the laws of the Province of Ontario, Canada and each of the parties hereto irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Ontario without regard to conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any disagreement or dispute arising out of or relating to this Agreement, or the breach thereof which the parties are unable to resolve after good faith negotiations, shall be settled by final and binding arbitration to be conducted in Ontario, Canada in accordance with the Ontario Arbitration Act.
(e) Entire Agreement. This License Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any prior understandings and agreements between the parties hereto with respect thereto.
As used in this Agreement now or hereafter associated herewith: "Agreement" means the terms of this Agreement available on the TEXTFRIENDLY website and may be updated by TEXTFRIENDLY from time to time in its sole discretion; "Content" means the audio and visual information including Automated Speech Recognition ("ASR"); Text to Speech ("TTS") and Voice to Text or transcription software platforms provided by third Parties, documents, software, products and services contained or made available to You in the course of using the Service; "Customer Data" means any data, information or material provided or submitted by You to the Service in the course of using the Service; "Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date You begin using the Service; "Initial Term" means the initial period during which You are obligated to pay for the Service equal to the billing frequency selected by You during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter); "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; "License Term(s)" means the period(s) during which You are licensed to use the Service; "Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online, specifying, among other things, the services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail); "TEXTFRIENDLY Technology" means all of TEXTFRIENDLY's and its service providers' and licensors' proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by TEXTFRIENDLY in providing the Service; "Service(s)" means the specific TEXTFRIENDLY services identified during the ordering process, developed, operated, and maintained by TEXTFRIENDLY, accessible via http://www.textfriendly.net or another designated web site or IP address, or ancillary online or offline products and services provided to You by TEXTFRIENDLY, to which You are being granted access under this Agreement, including the TEXTFRIENDLY Technology and the Content; "User(s)" means You who is authorized to use the Service and have been supplied user identification and password by You (or by TEXTFRIENDLY at Your request).
Questions or Additional Information
If You have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to - email@example.com .