LAST UPDATED: June 1, 2024

These Terms and Conditions set forth the terms upon which VoiceBrain offers Customer access to use the Services.

Access to the Services is provided solely in accordance with, and subject to, these Terms and Conditions, the Order Form, and any Additional Terms.

This is a legally enforceable contract. By submitting or otherwise agreeing to an Order Form, clicking “I Agree,” or by accessing or otherwise using the Services, you agree to be bound by these Terms and Conditions, any Order Form, and/or any applicable Additional Terms. If you do not agree to these Terms and Conditions, any Order Form, and/or any Additional Terms, do not access or use the Services.

From time to time, VoiceBrain may modify these Terms and Conditions, effective immediately upon posting such modified Terms and Conditions on the Site. While we may note the date of the last update to these Terms and Conditions on the Site and provide additional notice of such modifications, you acknowledge and agree that you must periodically check the Site for any updates. For any Order Forms that are entered into after the time of us posting any modifications to these Terms and Conditions, such new Order Forms shall be subject to the modified Terms and Conditions. For any Order Forms that were in effect at the time of us implementing such modifications that do not specify a subscription or service term length or other minimum subscription or service period, your continued access to or use of the Services constitutes your immediate acceptance of the modified Terms and Conditions. For any Order Forms that were in effect at the time of us implementing such modifications that specify an initial subscription or service term length or other minimum subscription or service period, such modifications to these Terms and Conditions shall become effective for any renewal period under such Order Forms. Except to the extent expressly contemplated by these Terms and Conditions, no other amendment, modification or supplement of any provision of these Terms and Conditions will be valid or effective unless made in writing and signed by duly authorized representatives of both parties.

1. DEFINITIONS

1.1 Additional Terms means additional services agreement, general or service-specific terms and conditions entered into by you and VoiceBrain in writing or otherwise as made available by VoiceBrain through the Site from time to time.

1.2 Affiliate means, with respect to any entity, any other present or future entity Controlling, Controlled by, or under common Control with such entity, where the term “Control,” and its derivatives, of an entity means the legal, beneficial, or equitable ownership, directly or indirectly, of at least fifty percent (50%) of the capital stock or other ownership interest of such entity ordinarily having voting rights, or the power in fact to direct or cause the direction of the management of such entity or to elect the majority of such entity’s board members or other directors or managers.

1.3 Agreement means these Terms and Conditions along with all Order Forms and all applicable Additional Terms, and exhibits or attachments hereto or thereto, all of which are hereby incorporated herein by reference.

1.4 Applicable Law(s) means all laws, including acts, bylaws, rules, regulations, ordinances, decrees, orders, and codes (including any requirements for permits, certificates, approvals, and inspections) of any national, state, or local authority of any government, or agency or subdivision thereof.

1.5 Customer, you, or your means the person or entity entering into this Agreement.

1.6 Customer Content means voice data Customer or its Permitted Users create, submit, post, or display on or through the Services.

1.7 Documentation means any user guides, technical manuals, operating rules, acceptable use policies, user support articles or similar publications, and other materials provided or made available by VoiceBrain for use by Customer.

1.8 Intellectual Property Rights means any and all tangible and intangible: (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (b) trademark and trade name rights and similar rights; (c) trade secret rights, (d) patents, patent applications, designs, algorithms and other industrial property rights; and (e) other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise.

1.9 Order Form means a written or electronic order form, processing fee agreement, or other subscription or ordering document agreed by both parties that sets forth the commercial terms, the applicable Services licensed by Customer, and any other additional terms and conditions of the Services to be provided by VoiceBrain to Customer under this Agreement.

1.10 Output means the information and data, excluding Customer Content, developed or collected by VoiceBrain or otherwise generated by, residing in or resulting from the Services.

1.11 Services means VoiceBrain’s proprietary cloud-based analytics platform. Services will also include any associated Support Services, Professional Services, software, code, application programming interfaces, user interfaces, and other applications that are made available to you by VoiceBrain, along with any Updates thereto made available to you by VoiceBrain.

1.12 Site means https://www.voicebrain.ai/ (or such successor URL determined by VoiceBrain).

1.13 Terms and Conditions means these terms and conditions.

1.14 Third Party Services means third-party web-based, mobile, offline, or other software application functionality that is incorporated into or interoperates with certain Services, or other products, hardware, software, or services from third parties.

1.15 VoiceBrain, we, or us means VOICEBRAIN, INC. and/or any of its Affiliates.

1.16 VoiceBrain Property means the Services, Documentation, and Output (excluding Customer Content), all as defined herein.

2. LICENSE AND AUTHORIZED USE

2.1 License. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, VoiceBrain grants to the Customer a limited, non-exclusive, revocable, non-sublicensable, and non-transferable license, during the applicable Order Term, to access and use the Services, along with any associated Documentation and Output thereof, to help you transcribe and analyze Customer Content.

2.2 Permitted Users. You must provide VoiceBrain with current, complete, and accurate information as requested in the Order Form or otherwise prompted by the applicable registration form in order to register for use of the Services. You must identify all employees of Customer who will be authorized by you to be permitted users to access and use the Services on behalf of Customer, subject to any limitations set forth in the applicable Order Form (“Permitted Users”). Customer and its Permitted Users shall use, safeguard and periodically change passwords in a commercially reasonable manner and time, to prevent unauthorized access to the Services. Customer is responsible to maintain the privacy and security of its Permitted Users’ login information, including usernames and passwords, and not allow others to use the login information. Customer will notify VoiceBrain immediately of any breach in secrecy, security, or unauthorized use or theft of any Permitted User’s login information (and provide properly documented evidence as reasonably requested by VoiceBrain). Customer is responsible for any and all actions taken by any person that has access to Customer’s or any Permitted User’s account. Customer agrees to immediately notify VoiceBrain of any potential breaches of the login information and of the departure of any employee with access to the login information.

2.3 Compliance. Customer will not permit Permitted Users to access and use the Services except solely during the Order Form Term specified in the applicable Order Form. VoiceBrain has no obligation to verify the identity of any person who gains access to the Services through Customer’s account. You are solely responsible for monitoring your Permitted Users’ access to and use of the Services, and for any failure by any Permitted User to comply with this Agreement; a failure to comply with this Agreement by any Permitted User is a failure by Customer. Further, Customer will (a) be responsible for Permitted Users’ compliance with this Agreement, including all Additional Terms, Documentation and Order Forms; (b) be responsible for the accuracy, completeness, timeliness, reliability, quality and legality of Customer Content, the means by which Customer acquired Customer Content, and Customer’s use of Customer Content with the VoiceBrain Property; (c) be responsible for any and all activities that occur under the Customer’s Permitted User accounts, including without limitation the transmission or display of any Output or Customer Content, regardless of whether or not Customer has authorized any such uses; (d) use commercially reasonable efforts to prevent unauthorized access to or use of VoiceBrain Property, and notify VoiceBrain promptly of any such unauthorized access or use; and (e) use VoiceBrain Property only in accordance with this Agreement.

2.4 License Restrictions. Customer will not (and will not permit any Permitted User or third party to): (a) make the VoiceBrain Property available to, or use any VoiceBrain Property for the benefit of, anyone other than Customer or its Permitted Users, unless expressly stated otherwise in an applicable Order Form or the Documentation or Additional Terms, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any VoiceBrain Property, or include any VoiceBrain Property in a service bureau, managed service or outsourcing offering, (c) use any VoiceBrain Property to post, send, store or transmit material that is infringing, libelous, or otherwise unlawful or tortious, violent, threatening, pornographic, racist, hateful, or otherwise objectionable in VoiceBrain’s sole discretion, or to store or transmit material in violation of third party rights, (d) use any VoiceBrain Property to facilitate or perform illegal activity or any activity that would be potentially or actually harmful to VoiceBrain, its business, or customers, or (e) use any VoiceBrain Property to disrupt or interfere with the security, integrity or performance of any VoiceBrain Property or VoiceBrain’s business or its customers or other users, or any third-party services and software, including by gaining unauthorized access to such services and software.

3. FEES AND PAYMENT

3.1 Fees. Customer will pay all fees specified in all Order Forms and any Additional Terms, including any transaction fees, processing fees, and any applicable taxes (collectively, “Fees”). Except as otherwise specified herein or in an Order Form, (i) Fees are based on Services purchased and not actual usage; (ii) payment obligations are non-cancelable and Fees paid are non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. All Fees and other charges are due and payable in accordance with the terms specified in the Order Form or, if not specified, then within thirty (30) days of the date of the invoice.

3.2 Invoicing and Payment. VoiceBrain will invoice Customer in accordance with the terms set forth in the applicable Order Form. Customer agrees to provide VoiceBrain with complete and accurate billing and contact information. Unless otherwise stated in the Order Form, Fees are due and payable within thirty (30) days from the invoice date. All payment obligations are non-cancelable, and all amounts paid are non-refundable. If you provide credit card information to VoiceBrain, you authorize VoiceBrain to charge such credit card for all Fees as they become due under this Agreement.

3.3 Late Payments. Any Fees not paid when due will accrue late interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower, from the date such payment was due until the date paid. If Customer is overdue on any payment of Fees, VoiceBrain may, without limiting its other rights and remedies, suspend Customer’s access to the Services until such amounts are paid in full.

3.4 Taxes. Customer is responsible for paying all applicable sales, use, excise, value-added, withholding, and other taxes and all applicable export and import fees, customs duties and similar charges (collectively, “Taxes”) imposed by any government entity in connection with Customer’s purchase and use of the Services. If VoiceBrain has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, VoiceBrain will invoice Customer and Customer will pay that amount unless Customer provides VoiceBrain with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, VoiceBrain is solely responsible for taxes assessable against it based on its income, property, and employees.

3.5 Fee Disputes. If Customer disputes any portion of an invoice, Customer must notify VoiceBrain in writing within ten (10) business days of the invoice date with specific details of the dispute, and Customer must pay the undisputed portion of the invoice as required hereunder. The parties will seek to resolve any such disputes promptly and in good faith. If the parties are unable to resolve any such dispute within ten (10) business days after VoiceBrain receives Customer’s notice, VoiceBrain may, in its sole discretion, suspend access to the Services until the dispute is resolved. Any amount not disputed by Customer in accordance with this Section 3.5 shall be deemed accepted by Customer.

3.6 No Deductions or Set-Offs. All amounts payable to VoiceBrain under this Agreement will be paid by Customer to VoiceBrain in full without any set-off, deduction or counterclaim and without any deduction or withholding for any taxes or other charges of any kind or nature.

4. PROPRIETARY RIGHTS AND LICENSES

4.1 Ownership. As between the parties, VoiceBrain owns all right, title and interest in and to the VoiceBrain Property, and Customer owns all right, title and interest in and to the Customer Content. Each party will maintain and enforce all such ownership rights under Applicable Law.

4.2 License to Customer Content. Customer hereby grants to VoiceBrain and its Affiliates a worldwide, non-exclusive, royalty-free, fully paid-up, irrevocable, transferable, and sublicensable license to use, reproduce, modify, distribute, display, perform, and create derivative works of the Customer Content as necessary for VoiceBrain to perform its obligations under this Agreement, including to provide, maintain, support, and improve the Services.

4.3 Feedback. Customer may provide suggestions, comments, feedback, or other information to VoiceBrain with respect to the Services (“Feedback”). Feedback is voluntary and VoiceBrain is not required to hold it in confidence. VoiceBrain may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s Intellectual Property Rights to make use of the Feedback, Customer grants to VoiceBrain an irrevocable, non-exclusive, perpetual, fully-paid, royalty-free license to use the Feedback in connection with VoiceBrain’s business, including the enhancement of the Services.

4.4 Updates. VoiceBrain may make updates or changes to the Services from time to time, including to reflect changes in technology, industry practices, patterns of system use, and availability of third-party data. Any such updates or changes will not materially reduce the level of performance, functionality, security, or availability of the Services during the applicable Order Term.

5. CONFIDENTIALITY

5.1 Confidential Information. As used in this Agreement, “Confidential Information” means all information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes the terms and conditions of this Agreement, Customer Content, VoiceBrain Property, and each party’s business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by either party.

5.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and will not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s permission. The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations at least as restrictive as those in this Agreement. The Receiving Party may disclose Confidential Information if required to do so under Applicable Law, provided the Receiving Party gives the Disclosing Party prior notice (to the extent legally permissible) and reasonable opportunity to seek a protective order or otherwise prevent or limit such disclosure.

5.3 Exclusions. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

6. TERM AND TERMINATION

6.1 Term. This Agreement begins on the date the initial Order Form is executed by both parties and continues until terminated in accordance with this Agreement or all Order Forms have expired or been terminated (the “Term”).

6.2 Order Term. The term of each Order Form (the “Order Term”) begins on the effective date specified in the applicable Order Form and continues for the period specified therein, unless terminated earlier in accordance with this Agreement or the applicable Order Form. Unless otherwise specified in an Order Form, each Order Form will automatically renew for additional periods of one year unless either party gives the other party written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current Order Term.

6.3 Termination for Cause. Either party may terminate this Agreement or any Order Form for cause: (a) if the other party materially breaches this Agreement or such Order Form and does not cure such breach within thirty (30) days after its receipt of written notice thereof; or (b) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

6.4 Effect of Termination. Upon any expiration or termination of this Agreement or any Order Form, (a) all rights and licenses granted by VoiceBrain to Customer under this Agreement or such Order Form will immediately terminate; (b) Customer will immediately cease all access to and use of the Services; (c) Customer will immediately pay all outstanding Fees and other amounts due to VoiceBrain under this Agreement or such Order Form; and (d) each party will, upon request, return or destroy all Confidential Information of the other party in its possession or control, except as required by Applicable Law.

7. WARRANTY AND DISCLAIMER

7.1 Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. VoiceBrain represents and warrants that the Services will perform in all material respects in accordance with the applicable Documentation during the applicable Order Term.

7.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND ANY RELATED MATERIALS OR SERVICES PROVIDED BY VOICEBRAIN ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND VOICEBRAIN DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ACCURACY. VOICEBRAIN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS.

8. INDEMNIFICATION

8.1 Indemnification by Customer. Customer will indemnify, defend, and hold harmless VoiceBrain and its Affiliates, and their respective officers, directors, employees, agents, contractors, and representatives from and against any and all claims, demands, causes of action, liabilities, damages, losses, and expenses (including attorneys’ fees) arising out of or in connection with (a) Customer Content; (b) Customer’s or any Permitted User’s use of the Services in violation of this Agreement or Applicable Law; or (c) Customer’s or any Permitted User’s gross negligence, willful misconduct, or fraud.

8.2 Indemnification by VoiceBrain. VoiceBrain will indemnify, defend, and hold harmless Customer and its Affiliates, and their respective officers, directors, employees, agents, contractors, and representatives from and against any and all claims, demands, causes of action, liabilities, damages, losses, and expenses (including attorneys’ fees) arising out of or in connection with any claim that the Services, as provided by VoiceBrain to Customer under this Agreement, infringe any Intellectual Property Rights of a third party. This indemnification obligation will not apply to the extent that any such claim arises out of or is based on (a) Customer Content; (b) Customer’s use of the Services in combination with any products, services, technology, or other materials not provided by VoiceBrain; (c) any modifications to the Services not made by or on behalf of VoiceBrain; or (d) Customer’s breach of this Agreement or any Applicable Law.

9. LIMITATION OF LIABILITY

9.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF DATA, OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 Cap on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO VOICEBRAIN UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. GENERAL PROVISIONS

10.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco, California, and the parties irrevocably consent to the personal jurisdiction and venue therein.

10.2 Notices. All notices required or permitted under this Agreement will be in writing and will be sent to the addresses specified in the Order Form or such other addresses as the parties may designate in writing from time to time. Notices will be deemed given (a) when delivered personally; (b) one business day after being sent by a nationally recognized overnight courier; or (c) three business days after being sent by registered or certified mail, postage prepaid, return receipt requested.

10.3 Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except for payment obligations) due to causes beyond its reasonable control, including acts of God, war, terrorism, civil disturbance, strikes, labor disputes, pandemics, natural disasters, and governmental action.

10.4 Assignment. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of VoiceBrain. Any attempted assignment or transfer in violation of this Section will be null and void. VoiceBrain may freely assign or transfer this Agreement or any of its rights or obligations hereunder without Customer’s consent.

10.5 Waiver. No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver is to be asserted. No waiver of any provision of this Agreement will be deemed a waiver of any other provision, nor will any waiver constitute a continuing waiver.

10.6 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect. The parties agree to replace any invalid or unenforceable provision with a valid provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision.

10.7 Entire Agreement. This Agreement, together with the Order Forms and any Additional Terms, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements, representations, and warranties, whether oral or written, with respect to such subject matter.

10.8 Amendments. Except as otherwise expressly provided herein, this Agreement may be amended or modified only by a written instrument signed by duly authorized representatives of both parties.