Last Updated October 05, 2022
Prior Version Here
- License and Account.
- License. Supplier offers services (“Services”) for the transcribing, captioning, audio descriptioning, translating, localization, notetaking, and other processing of live and pre-recorded media, as described at www.verbit.ai, www.vitac.com, www.automaticsync.com, www.take1.tv, and www.takenote.co (the “Sites”), including software, interfaces, documentation, technical support, the Sites themselves, and the features, functionality, and connectivity provided through Supplier’s proprietary platform (“Platform”). Subject to Customer’s compliance with this Agreement, Supplier hereby grants Customer and its authorized users acting on Customer’s behalf (“Authorized Users”) a limited, revocable, personal, non-exclusive, non-transferable, and non-sublicensable license until this Agreement is terminated (the “Term”) to access the Platform to use the Services in accordance with the Agreement.
- Customer Account. To access and use certain Services, Customer must create an account (“Account”) on a Site, as directed by Supplier. Customer shall provide accurate, complete, and current Account information and, as applicable, timely update the same. Customer is solely responsible for activity that occurs on its Account (which includes any sub-accounts), including usage via any interfaces or connectors to the Account, the content and submission of any media (“Files”) submitted for processing via the Platform, and for keeping its Account credentials secure. Supplier will not be liable for losses caused by any unauthorized use of the Account; provided, however, that Customer shall not be responsible for unauthorized charges on its Account where it took reasonable precautions and the unauthorized use was solely due to Supplier’s gross negligence or willful misconduct. Customer represents and warrants that it is duly authorized to do business and use the Services in all jurisdictions in which Customer operates. Customer must notify Supplier promptly of any breach of security or any known unauthorized use of the Account. Notwithstanding deletion of the Account, Supplier may retain Customer data as reasonably necessary for compliance with applicable law.
- Restrictions. Customer shall not, and shall ensure that its Authorized Users do not, and shall not authorize, assist, or enable any other third party to (a) transfer, resell, lease, license, or otherwise make available the Services to third parties; (b) use the Services in violation of applicable laws or regulations, including to submit Files comprising unlawful, infringing, libelous, or other tortious content, or in violation of the privacy rights of any individual; (c) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, except to the limited extent applicable laws specifically prohibit such reverse-engineering restrictions; (d) alter, modify, translate, or otherwise create derivative works of any part of the Services; (e) interfere with or disrupt the integrity or performance of the Services or any third-party service via an interface to or from the Services, including by imposing an unreasonably large load on Supplier’s Platform or its service providers’ platforms; (f) submit Files containing sensitive information such as social security numbers, bank information, credit card information, or (except where the Parties have executed a Business Associate Agreement) protected health information; or (g) attempt to circumvent, disable, interfere with, or gain unauthorized access to security or restrictive features of the Services or related systems or networks.
- Deletion of Customer Data. Except as agreed by Supplier and Customer in writing, Supplier may periodically delete Customer’s data from the Platform, including any Files. Further, data storage is not guaranteed by Supplier and Supplier shall not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that Customer may incur relating to the deletion of Customer’s data.
- Fees and Payment.
- Paid Services. Customer agrees to pay for its use of the Services as set forth in the applicable Order; or, to the extent there is no applicable Order, as otherwise communicated by Supplier in writing. Supplier reserves the right to change pricing from time-to-time, effective upon notice to Customer; provided, however, that pricing for Services subject to a committed purchasing obligation (“Minimum Commitment”) shall be fixed during the term of such Minimum Commitment.
- Billing. Except as set forth in an applicable Order, Customer shall pay in advance for the Services in the currency specified by Supplier, without the right of set-off, deduction, or counterclaim. Where Customer provides credit card information, Supplier may charge such credit card for all Services, fees, and charges listed under the applicable Order, including any renewals. Where payment in arrears has been approved by Supplier, invoices may be sent by email to the email address specified in the Account, deemed received on the date the email is sent. Payment terms are as set forth in the applicable Order; or, if there is no applicable Order, invoices are payable 10 days after the invoice date. Overdue undisputed amounts bear interest at the lower of 1.5% per month or the maximum rate allowed by law. In addition to any other remedies, Customer shall be liable for Supplier’s expenses incurred in connection with collection activities including reasonable attorneys’ fees. Upon 5 days’ notice, Supplier may suspend Services associated with the Account pending payment of past due undisputed amounts, and Supplier shall have no liability for any losses incurred due to such suspension. Customer’s credit shall be limited to the amount indicated by Supplier from time-to-time in connection with the Account and usage beyond this limit may be blocked without further notice.
- Taxes. All charges and fees for the Services are exclusive of any country, province, federal, state, or local taxes, including without limitation, use, sales, value-added, privilege, or other taxes, levies, imports, duties, fees, surcharges, governmental assessments, and withholdings (“Taxes”). Customer is solely liable for and will pay upon demand all Taxes associated with Customer’s access to and use of the Services and shall not deduct any such amounts, or any other withholdings, set-offs, or deductions from amounts Customer owes Supplier, but will not be responsible for taxes based on Supplier’s net income. Customer may present Supplier with an exemption certificate eliminating Customer’s and Supplier’s liability to pay certain Taxes. Once Supplier has received and notified Customer of approval of the exemption certificate, Customer shall be exempt from those Taxes on a going-forward basis. If a taxing jurisdiction determines that Customer is not exempt from Taxes and assesses those taxes, Customer shall pay those Taxes to Supplier, plus any applicable interest or penalties.
- Billing Disputes. Billing disputes must be initiated by Customer within 30 days of the invoice date, by contacting Supplier as indicated in the applicable Order, or a firstname.lastname@example.org.Upon expiration of such 30-day period, Customer may not dispute any fees paid or payable to Supplier. The Parties will work together in good faith to resolve billing disputes. A pending billing dispute shall not exempt Customer from timely paying undisputed amounts owed. Other than in accordance with the foregoing, fees paid are non-refundable.
- Intellectual Property.
- Files and Output. As between Customer and Supplier, Customer owns and reserves all right, title, and interest in the Files. Customer authorizes Supplier to copy, display, store, and otherwise use the Files to provide the Services and perform in accordance with this Agreement, including to deliver to Customer transcriptions, translations, audio descriptions, captions, and other output (collectively, “Output”) based on the Files. Customer also grants Supplier an irrevocable and royalty-free right to use the Files and the Output to develop and improve the Services and Platform, including to evaluate and enhance the efficacy, efficiency, and accuracy of Supplier’s personnel and artificial intelligence-based technologies. Customer represents and warrants that (i) it has the right to use the Files and provide Supplier with the Files for all purposes set forth in this Agreement; and (ii) all Files have been and will be legally acquired in accordance with all applicable data protection laws and privacy standards. Customer is responsible for the legality, reliability, integrity, accuracy, and quality of the Files. Where a File comprises media of meetings, sessions, classes, or other fora including individuals, Customer is solely responsible to inform such individuals that their personal information may be recorded, transcribed, stored, or otherwise processed (as applicable) by a third party and used for the purposes set forth in this Agreement, and Customer shall be solely responsible to procure such individuals’ consent.
- Services, Platform, and Supplier Content. Supplier owns and reserves all right, title, and interest in the Platform and Services and all improvements, modifications, and derivative works thereof. Customer’s suggestions and feedback regarding the Services are not Confidential Information (as defined below), and Customer grants to Supplier an unrestricted, irrevocable, fully paid-up, and non-exclusive right to use such suggestions and feedback for any purpose. Other than the Files and Output, all content made available through the Sites or the Services (collectively, “Supplier Content”) are, as between Customer and Supplier, owned by Supplier.
- Confidentiality and Publicity.
- Confidentiality. “Confidential Information” means any non-public information or data, regardless of whether it is in tangible form, disclosed by either Party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. “Confidential Information” does not include any information which (i) is publicly available through no fault of receiving Party, (ii) was properly known to receiving Party, without restriction, prior to disclosure by the disclosing Party, (iii) was properly disclosed to receiving Party, without restriction, by another person without violation of disclosing Party’s rights, or (iv) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. Each Party agrees that it will use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement (including for Supplier to provide the Services) and it will not disclose such information to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder or for Supplier to provide the Services. Each Party agrees to exercise reasonable care in protecting the other Party’s Confidential Information from unauthorized use and disclosure. Each Party may also disclose the Confidential Information of the other Party, in whole or in part, to its employees, representatives, actual or potential investors, and subcontractors who have a need to know and are bound to keep such information confidential consistent with the terms of this section. In addition, Supplier may disclose this Agreement under a comparable non-disclosure agreement in response to a third-party due diligence request supporting a financing or non-ordinary course of business corporate transaction. Either Party may disclose the Confidential Information of the other as required by law, legal process, or court order; provided that, subject to applicable law, it promptly notifies the other Party of such required disclosure to allow the other Party to seek a protective order or other appropriate remedy.
- Publicity. Supplier may identify Customer using its name, trademarks, and/or logos in its marketing collateral, presentations, and websites, but Customer may revoke such right with notice to Supplier at any time.
- By Customer. Customer agrees to defend, indemnify, and hold harmless Supplier, its Affiliates, suppliers, and partners, and each of their respective employees, contractors, directors, officers, and representatives, from and against any damages, liabilities, claims, demands, obligations, losses, fines, penalties, and expenses (including reasonable attorney’s fees) (collectively, “Losses”) in connection with claims made or brought by a third party arising from or relating to unauthorized use of the Services.
- By Supplier. Supplier agrees to defend, indemnify, and hold harmless Customer from and against any Losses incurred in connection with claims made or brought by a third party arising from or relating to (i) infringement of third-party intellectual property rights arising from Customer’s authorized use of the Services, or (ii) violation of applicable law by Supplier or its employees, agents, or subcontractors. Notwithstanding the foregoing, Supplier shall have no liability for Losses arising out of any combination, operation, or use of the Services with any hardware or software not furnished by Supplier if such claim would not have arisen had such combination, operation, or use not occurred.
- Procedure. The indemnified Party shall notify the indemnitor promptly after the indemnified Party learns of the existence of an indemnifiable claim hereunder; provided, however, that failure to give such notice shall only affect the rights of the indemnified Party to the extent that the indemnitor is prejudiced. The indemnified Party shall not admit any liability whatsoever. The indemnitor shall be entitled to take sole control of the defense and investigation of the indemnifiable claim at its own expense, by providing prompt notice to the indemnified Party. The indemnified Party shall cooperate in all reasonable respects with the indemnitor and its attorneys in the defense of the claim (including by making available books, records, and personnel), and may reasonably participate at its own expense, through its attorneys or otherwise, provided that such participation does not interfere with the indemnitor’s defense. All settlements of indemnifiable claims under this section shall: (i) be entered into only with the indemnified Party’s consent if such settlement requires any admission of guilt or imposes any restriction on the indemnified Party, and (ii) include an appropriate confidentiality agreement prohibiting disclosure of the terms of such settlement.
- Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. SUPPLIER, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE SUPPLIERS, PARTNERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DO NOT WARRANT (AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES) THAT (I) THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, (II) THE OUTPUT WILL BE ACCURATE, RELIABLE, OR COMPLIANT WITH ANY PARTICULAR STANDARD OR REGULATORY REQUIREMENT, (III) ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER’S SOLE REMEDY FOR A CLAIM THAT OUTPUT IS INACCURATE IS THAT SUPPLIER SHALL RE-PROCESS WHERE FEASIBLE THE ASSOCIATED FILE AT NO ADDITIONAL COST TO CUSTOMER ONLY IF THE CLAIM IS MADE IN WRITING NO LATER THAN 7 DAYS FOLLOWING DELIVERY OF THE OUTPUT TO CUSTOMER.
- Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CUSTOMER’S PAYMENT OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, OR OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR (I) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, LOST PROFITS, GOODWILL, REVENUE, INCOME OR BUSINESS, DATA LOSS, INTERRUPTION OF BUSINESS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS, OR SERVICES (HOWEVER ARISING AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), OR (II) ANY LIABILITY THAT EXCEEDS THE LESSER OF USD 1,000,000 OR THE AMOUNT OF FEES ACTUALLY PAID OR ACCRUED TO SUPPLIER IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Suspension and Termination.
- Either Party may terminate this Agreement upon 60 days’ notice, for any reason or no reason; except that any termination in connection with the foregoing shall not be effective with respect to and until the completion of any Minimum Commitment or as otherwise set forth in an applicable Order.
- Suspension or Termination for Cause. Either Party may terminate this Agreement in its entirety (and, alternatively, Supplier may suspend Customer’s right to use the Services) for cause (i) if the other Party breaches the Agreement and fails to cure such breach within 30 days after notice thereof, or (ii) upon Customer’s or its controlling Affiliate’s liquidation, commencement of dissolution proceedings, disposal of its assets, failure to continue its business in the ordinary course, assignment for the benefit of creditors, or if Customer or such Affiliate becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding.
- Effect of Termination; Survival. Upon termination of this Agreement, for any reason: (i) Customer remains liable for all fees, charges, and any other obligations accrued and owed by Customer through the effective date of such termination, and (ii) except as expressly set forth herein, all of Customer’s rights and licenses under this Agreement will immediately terminate and Customer shall cease using the Services. All amounts accrued or owed to Supplier in connection with this Agreement and sections 3, 4(a), 5, 7, 8(c), and 9 shall survive any termination of this Agreement. Following any suspension or termination of this Agreement or the Account other than for breach, Customer may request any post-termination assistance that Supplier may elect to make generally available with respect to the Services such as data retrieval arrangements, subject to and conditioned upon Customer’s advance payment of fees and acceptance of all terms and conditions that Supplier specifies in writing with respect thereto.
- Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of (i) the State of Delaware, where Customer’s jurisdiction of formation is in the U.S., Canada, or elsewhere in North America (collectively, “North America”); and (ii) England and Wales, where Customer’s jurisdiction of formation is not in North America; in each case, without reference to principles of conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable hereto. Without limiting the preceding language, the Parties submit, for purposes of this Agreement, to the jurisdiction and venue of (i) the state and federal courts located in the State of Delaware, where Customer’s jurisdiction of formation is in North America; and (ii) the courts of London, England, where Customer’s jurisdiction of formation is not in North America.
- Entire Agreement; Headings. This Agreement constitutes the entire agreement between Customer and Supplier with respect to the Services and supersedes all prior or contemporaneous communications and proposals between the Parties with respect thereto. The section and paragraph headings in this Agreement are for reference only and shall not affect their interpretation. No oral or written information or advice given by Supplier or its employees and other representatives will create any obligations or warranty on behalf of Supplier unless otherwise agreed in a writing signed by an authorized Supplier representative. Any purchase orders, confirmations, payment documentation, or other terms provided by Customer shall have no force or effect unless signed by an authorized Supplier representative. If the Parties have executed versions of this Agreement drafted in more than one language, the English language version shall govern and prevail.
- Severability. If any provision of this Agreement, or any part of such provision, is found to be unenforceable or invalid, that provision will be deemed replaced by a valid and enforceable provision the effect of which comes as close as possible to the intended economic effect of the unenforceable or invalid provision, so that this Agreement will otherwise remain in full force and effect and enforceable.
- Force Majeure. Neither Party is liable for any failure of performance to the extent such failure is due to any cause beyond such Party’s reasonable control, including acts of God, fire, explosion, vandalism, adverse weather conditions, government action, acts of terrorism, strikes and similar labor difficulties, war, sabotage, pandemic, internet-access issues, denial of service attacks, shortage or unavailability of supplies, and other mechanical, electronic, or communications failures or degradation. Either Party’s invocation of this clause will not relieve Customer of its obligation to pay for any Services provided or permit Customer to terminate any Services except as expressly provided herein.
- Notices. All notices hereunder shall be in writing. Supplier may send notices hereunder to the email address Customer indicates in the Account or otherwise in writing. Customer will be deemed to have received any email sent to the last known email address Supplier has on record for Customer. Notices provided to Supplier under this Agreement shall be sent to the attention of the applicable account manager, with a copy sent to email@example.com regarding any legal matters.
- Relationship of the Parties. The relationship of the Parties shall not be that of partners, agents, or joint venturers for one another, and nothing contained in the Agreement shall be deemed to constitute a partnership or agency agreement between the Parties for any purpose. Supplier and Customer shall be independent Parties and shall discharge their contractual obligations at their own risk subject to the terms of this Agreement.
- Assignment. This Agreement inures to and is binding upon the Parties’ successors and permitted assignees. Neither Party shall assign this Agreement without the other Party’s prior written consent, not to be unreasonably conditioned, withheld or delayed; provided that each Party may, without consent, but with reasonable prior notice where feasible, assign its rights and obligations hereunder to any of its Affiliates or pursuant to any merger, acquisition, reorganization, sale, or transfer of all or substantially all its assets; provided, further, that with respect to such assignment by Customer, (i) the successor shall not provide services that compete with Supplier; (ii) the successor must be at least as creditworthy as Customer (as reasonably determined by Supplier); (iii) such assignment may not violate applicable trade control, export, or other law; and (iv) Customer remains liable for all of Customer’s obligations that accrued prior to such assignment. Any assignment other than as permitted by this section shall be deemed void.
- Trade Compliance. Customer represents and warrants that (i) its use of the Services will not violate any embargoes, sanctions, trade restrictions, or similar restrictions issued by any applicable governmental entity, and (ii) Customer, its Affiliates, and its Authorized Users have not been designated by any applicable government or government agency as a prohibited or restricted party under any trade restrictions, export laws, or the like. Customer may not use, export, re-export, import, or transfer any technology or data related to the Platform or Services except as authorized by both this Agreement and all applicable laws, rules and regulations.
- Maintenance and Downtime. Supplier shall make commercially reasonable efforts to maintain availability of the Platform, provide at least 8 hours’ notice of scheduled downtime, and limit scheduled downtime to 9pm to 6am Eastern Time.
- Good Quality Audio. Notwithstanding anything to the contrary, any accuracy or delivery timing (“Turnaround Times”) targets for Output are conditioned on the corresponding audio quality (“Audio Quality”) of the corresponding Files (including both live and recorded media). Audio Quality is determined in Supplier’s sole discretion, with exemplary criteria including (as applicable) clarity of the audio in a controlled environment, minimal background noise, a single speaker at any given time, lack of media defects, and reasonable end-to-end connectivity for live events. Supplier may reject any File based on its determination that the File’s Audio Quality does not meet reasonable quality levels (“Low Quality Files”).
- Post-Production Turnaround Time Targets. Supplier shall make commercially reasonable efforts to deliver Output within the target Turnaround Times set forth on the applicable Site or Order. Recorded media Files shall not be subject to cancellation by Customer once submitted. Customer acknowledges that submission of volumes substantially greater than historical usage may result in delays to target Turnaround Times. Turnaround Times are calculated based upon United States East Coast business days; where stated in hours, 24 hours is equivalent to 1 business day. Turnaround Time targets are subject to Customer providing prompt cooperation and responses to Supplier’s reasonable requests or queries relating to the Files.
- Live Sessions and Fast Turnaround Requests. The following terms apply to live sessions (“Live Sessions”) and post-productions requests with target Turnaround Times of 4 hours or less (“Fast Turnaround Sessions”) only.
- Scheduling Sessions. Customer may request scheduling of a Live session or Fast Turnaround Session, and shall provide a start time (“Scheduled Start”) and (for Live Sessions only) an end time (“Scheduled End”). Sessions will be scheduled only upon confirmation from Supplier, according to availability. Sessions should be requested at least 1 business day in advance of the Scheduled Start; large events such as conferences may require substantially longer advance notice (10 business days or more). Customer shall join at least 15 minutes prior to the Scheduled Start of a Live Session. To improve accuracy of Output, Supplier strongly encourages Customer to provide preparation materials in advance of the session, including to assist Supplier in preparing for non-standard terms or content that may be contained in the File. For Live Sessions, the minimum session time for Legal sessions is 4 hours, and for all other sessions it is 30 minutes.
- Session Fees. The session shall be chargeable beginning at the Scheduled Start, regardless of delay other than to the extent such delay is due to Supplier’s fault. If the session ends prior to the Scheduled End, it shall be chargeable for the full scheduled time. If the session extends beyond the Scheduled End, Supplier shall make commercially reasonable efforts to accommodate the extension subject to agent availability; and Customer shall be charged additional fees at a per-minute rate proportional to the hourly rate, rounded up to the next 15-minute increment. No-shows and cancellations on less than 24 hours’ notice are chargeable for the full scheduled time.