TERMS OF USE

Last Updated: November 1, 2017

Introduction

These terms of use create an agreement (hereinafter as “Terms”) between any third party acting as principal or represented by its representatives, affiliates, employees or any other agents (hereinafter collectively as “You” or “Customer”), using the https://smartrecordapp.com website (hereinafter as “Website”) and/or the mobile application service Smart Record: Voice Recorder & Audio Transcription (hereinafter as “App”) (hereinafter collectively as “Application Services”), and Smart Record s.r.o. (hereinafter as “Provider”).
Please read and review the following Terms carefully before using and/or downloading the Application Services. If You disagree with any part of the Terms then You may not access or use our Application Services.
By clicking the download or install button, by downloading or installing the upgrade of the App, or by accessing or using our Application Services in any manner, You declare, that You have read and agree to be bound by the Terms. These Terms, entered into by You and Provider (hereinafter collectively as “Parties”), constitutes the entire understanding between Parties. Parties are mutually bound by the Terms from the date You use and/or download our Application Services.

The following Terms govern the entire use of our Application Services provided by Provider to Customer. These Terms were written in English. To the extent any translated version of these Terms conflicts with the English version, the English version shall prevail. The Terms shall be always interpreted in accordance with the rules of grammatical and legal interpretation and with its content.


I. General

  1. To use our Application Services, Customer needs compatible hardware, software (latest version recommended) and Internet access (fees may apply). Our Application Services’ performance may be affected by these factors.
  2. Customer must be 13 years or older to use our App. By accepting the Terms, Customer declares, that he is older than 13 years old, and is solely responsible for any damage or loss that Provider may suffer because of his untruthful declaration.
  3. Customer is further solely responsible for any activity that occurs under his Apple ID or e-mail and for the any content made available, submitted, published, transmitted or displayed by him on, through or with the Application Services, particularly for all information, audio, visual and audiovisual materials or works, even if they capture or record third parties (hereinafter as “Customer Data”).
  4. The Application Services are created to provide (i) Call Recording Service, (ii) Recording Service, (iii) Features (e.g. video caption, notes-making, formatting, export), (iv) Public Sharing of Recordings, (v) Human and Machine Transcription of Recordings into the written text and (vi) other functions and related services (hereinafter collectively as “Product” or “Products”).

II. License, Access Rights, Restrictions

  1. Provider grants to Customer and Customer accepts a personal, non-exclusive, non-transferable, non-sublicensable, and revocable license to use the Application Services for Customer’s internal use (hereinafter as “License”). Customer’s right to use the Application Services is limited by all terms and conditions herein. To avoid any doubts, Customer is aware of and agrees that except for this License granted to Customer, Provider and his Licensors retain all rights, titles and interests in and to the Application Services, including all related intellectual property rights.
  2. Customer shall (i) provide accurate, current, and complete information when asking by the Application Services for such information (ii) maintain and promptly update any provided information, (iii) maintain the security of unauthorized access into the App (e.g. by setting up password to get into his device) and accept all risks of unauthorized access to his device and/or the App, and/or (iv) promptly notify Provider if he discovers or otherwise suspects any security breaches into his device and/or the App. Customer is responsible and liable for the acts or omissions of any authorized or unauthorized third person who accesses the App.
  3. Customer shall not (i) rent, lease or sublicense access to the App to any third person, (ii) infringe any intellectual property or other proprietary right of any third person, while using the App, and/or (iii) violate any right or duty owed to any third person, while using the App. Customer hereby grants to Provider and Provider accepts a worldwide, timeless and non-exclusive license to access, copy, distribute, process, and use the Customer Data solely for the purpose of (i) providing the Product to Customer, and/or (ii) improving any component of the App.
  4. Provider hereby declares that the Customer Data (incl. audio recordings) may be provided to and processed by the third parties, who cooperate with Provider (hereinafter as “Suppliers”).
  5. Provider does not provide any equipment required to access the Application Services. Customer is responsible for all fees charged by third parties related to Customer’s access to the Application Services and Products (e.g. charges by Internet Service providers, by Cell Phone & Service providers).
  6. Provider reserves the right to restrict, suspend, or terminate access to the Application Services at any time in his sole discretion if in Provider’s determination Customer uses the Application Services in a manner that violates applicable laws or the Terms.
  7. Provider does not guarantee the continued functionality of, and at the same time Provider reserves the right to change, discontinue, delete and/or deprecate, at any time and in his sole discretion, the Application Services and all product features, that made be made available to or accessible by Customer, without any prior notice to Customer.
  8. From time to time, Provider may develop Beta Services (a product, service or functionality provided by Provider that may be available to Customer to try at Customer’s option at no additional charge) available to Customer at no charge. Customer may choose to utilize such Beta Services in Customer’s sole discretion. Beta Services are intended for evaluation purposes and not for production using, are not fully supported and are provided on an “as-is” and “as available” basis without any warranty, support or maintenance. Provider has no liability for any harm or damage arising out of or in connection with Beta Services.

III. Products and Services

  1. Customer may download and/or use the basic version of the App or other trial versions of bellow defined services free of charge. Customer using the App or other trial services free of charge may particularly (i) record an unlimited number of recordings (except for call recordings), (ii) record an unlimited amount of call recordings upon reaching 10 minutes overall time limit, (iii) publicly share 1 recording, (iv) get first minute of machine transcription of any recording, and/or (iv) use the features in a basic version (hereinafter as “Free Service”).
  2. Free Service is offered at no charge, but its functionality and features are limited. Provider may modify Free Service at any time in his sole discretion or even discontinue it entirely. Customer using the Free Service is not entitled to claim on Provider any refunds for limited functionality of Free Service.
  3. Provider offers a premium version of the App and/or its selected functions, which is subject to charge (hereinafter as “Premium Service”). Customer purchasing Premium Service may (i) record an unlimited number of recordings, (ii) publicly share an unlimited number of recordings, (iii) use the features in a higher-quality, (iv) get more functions and/or (v) get special discounts or other benefits comparing to Free Service. Premium Service is billed in advance according to the Price List and Payments Terms (Article IV. of the Terms) and is provided to a submitted Apple ID for an unlimited period. Customer may cancel the Premium Service at any time, however Provider has in that case no duty to refund Customer already paid price.
  4. Provider offers a paid Call Recording Service. Customer purchasing Call Recording Service may record an unlimited amount of call recordings. Call Recording Service is billed in advance on pre-paid basis according to the Price List and Payments Terms (Article IV. of the Terms) and is provided to a submitted Apple ID for a monthly period. Call Recording Service is automatically renewed at the end of its respective term for an equivalent term, unless Customer chooses not to renew Call Recording Service upon canceling the Call Recording Service via the App. Customer may cancel the Call Recording Service at any time, however Provider has in that case no duty to refund Customer already paid price.
  5. Provider offers a paid Human Transcription of Recordings (hereinafter as “Human Transcription”) and a paid Machine Transcription of Recordings (hereinafter as “Machine Transcription”) (hereinafter collectively as “Transcription” or “Transcriptions”). By Transcriptions may be processed from any recordings made directly via the App, imported to the App or created and downloaded to the App through Provider’s Call Recording Service. Transcriptions are billed in advance on one-time basis or monthly on pre-paid basis (hereinafter as “Individual Plan”) according to the Price List and Payments Terms (Article IV. of the Terms). Individual Plan is automatically renewed at the end of its respective term for an equivalent term, unless Customer chooses not to renew Individual Plan upon canceling the Individual Plan via the App. Customer may cancel or downgrade the Individual Plan at any time, however Provider has in that case no duty to refund Customer already paid price.
  6. Human Transcription. Provider guarantees to deliver the Human Transcription to Customer up to 4 business days after its payment. Provider guarantees a quality and accuracy of the Human Transcription, but at the same time he reserves the right to refuse any refund for small or unimportant differences between Human Transcription and recording.
  7. Machine Transcription. Delivery time of Machine Transcription, since it is provided automatically, depends solely on the length of recording (e.g. 60 seconds of recording = approximately 75 seconds of transcription). Provider does not guarantee a quality and an accuracy of the Machine Transcription.
  8. If (i) technical problems prevent or unreasonably delay delivery of Transcription, (ii) the App is not accessible due to technical problems, or (iii) Transcription has essential defects despite the guarantee of Provider, an exclusive and sole Customer’s remedy is a reasonable price-reduction of the price paid, as determined by Provider, or a replacement of the Transcription. Provider may refuse a refund request if we find evidence of fraud, refund abuse, or other manipulative behavior that entitles Provider to a corresponding counterclaim. 
  9. Provider stores all recordings and/or Transcriptions usually no more than 30 days after they have been firstly created by or provided to Customer. After a period of 30 days Provider has the exclusive right to delete stored recordings and/or Transcriptions with any further notice to Customer.
  10. Provider may modify his Pricing List at any time and add new services for additional fees and charges, or amend fees and charges for the Products and/or the Application Services, at any time and in his sole discretion.

IV. Payments Terms

  1. When Customer purchases any Product, Customer agrees to pay to Provider all amounts specified in the order. Provider will charge Customer via credit card or debit card (hereinafter as “Transaction”). Customer must submit his e-mail before his first Transaction.
  2. Customer is not obliged to enter further billing information by Transaction below 100 USD (hereinafter as “Basic Transaction”) (or an appropriate sum in a different currency acc. to the conversion rate at the day of Transaction), if Customer does not require to issue an invoice, which is by Basic Transaction issued only at the request of Customer.
  3. Customer is obliged to enter further billing information by Transaction in amount of or over 100 USD (or an appropriate sum in a different currency acc. to the conversion rate at the day of Transaction) or by paying for an Individual Plan (hereinafter collectively as “Qualified Transaction”). By Qualified Transaction Customer automatically receives an invoice.

V. Privacy Policy

  1. Provider provides this Privacy Policy (hereinafter as “Privacy Policy”) to help Customer to understand, what information Provider collects, how Provider uses the information and the choices Provider offers, including how to access and update collected information. Provider may update this Privacy Policy from time to time, so please check them back periodically. This Privacy Policy applies to the Application Services, Beta Services and any other related services.
  2. This Privacy Policy particularly explains and regulates (i) a definition of how Provider uses the personal data that Customer shares with Provider and what Provider learns about Customer, (ii) what of the personal data, if any, Provider may share, (iii) the conditions Provider uses to protect Customer’s information, if it must be shared, and (iv) other things Customer should know about the protection sand processing of the personal data and Provider.
  3. The personal data means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic mental, economic, cultural or social identity of that natural person. When Customer installs or downloads the App, Provider may collect variety of information including these categories: (i) contact information (e.g. e-mail address, credit card), (ii) device information (e.g. unique device identifier, iOS identifier), (iii) location information (about actual location). Provider also collects non-personal data such as technical data of the Application Services or Products (audio quality or a number of recordings). (hereinafter collectively as “Personal Data”).
  4. Provider uses the Personal Data (i) to provide the Application Services, (ii) to maintain and/or (iii) to develop the Application Services. In cases prescribed by law, Provider requires for processing the Personal Data Customer’s consent.
  5. The Personal Data are proceeded both in an automated and a manual way and are stored for 10 years.
  6. Provider provides the Personal Data that he collects to trusted persons (hereinafter also as “Processors”) to process it for Provider based on his instructions and with compliance to this Privacy Policy (the list of these persons is available on request and on the Website). Provider uses only Processors providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that processing will meet the requirements of the Customer’s right protection.
  7. Customer hereby further agrees not to use the Application Services to send sensitive data about him or third person where unauthorized disclosure could cause material damage, severe harm or impact to Provider, any data subjects or thirds parties. Sensitive data includes, but is not limited to: health data, genetic data, biometric data, data revealing racial or ethnic origin, political opinion, religious or philosophical beliefs, data concerning sexual orientation. Customer hereby further agrees to not use Services for personally identifiable information knowingly collected from children under the age of 13 of from online services designated for children.
  8. The App is not designated for children. By downloading or installing the App, Customer declares that he is older than 13 years old, and is solely responsible for any damage or loss that Provider may suffer because of his untruthful declaration.
  9. Access to the Personal Data. Customer has the right to obtain from Provider confirmation as to whether or not the Personal Data concerning him are being processed, and where that is the case, access to the Personal Data and the following information: the purposes of the processing, the categories of the Personal Data concerned, the recipient to whom Personal Data have been or will be disclosed, the envisage period for which the Personal Data will be stored (if not possible the criteria used to determine that period), the existence of automated decision-making, including profiling, and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the Personal Data subject. Customer has the right to request from Provider rectification or erasure of the Personal Data (right to be forgotten) or restriction of processing of the Personal Data concerning Customer or to object to such processing. Customer has also the right to lodge a complaint with supervisory authority (in European Union) and the right to the Personal Data portability. Right to rectification. Customer shall have the right to obtain from Provider without undue delay the rectification of inaccurate the Personal Data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete Personal Data completed, including by means of providing a supplementary statement. Right to be forgotten. Customer shall have the right to obtain from the Provider the erasure of the Personal Data concerning him or her without undue delay and Provider shall have the obligation to erase the Personal Data without undue delay where one of the following grounds applies: (i) the Personal Data are no longer necessary in relation to the purposes for which they were collected or otherwise processed, (ii) the Personal Data have been unlawfully processed, (iii) the Personal Data have to be erased for compliance with a legal obligation in the European Union or Member State law to which the controller is subject, (iv) Customer withdraws consent on which the processing is based where there is no other legal ground for the processing, (v) Customer objects to the processing and there are no overriding legitimate grounds for the processing, or (vi) Customer objects to the processing. Provider will not erase the Personal Data, if the processing of the Personal Data is necessary for (i) exercising the right of freedom of expression and information, (ii) compliance with a legal obligation which requires processing by the European Union or Member State law to which Provider is subject, (iii) the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, (iv) reasons of public interest in the area of public health, (v) archiving purposes in the public interest, scientific or historical research purposes or statistical purpose in so far as the right to be forgotten is likely to render impossible or seriously impair the achievement of the objectives of that processing, or (vi) the establishment, exercise or defense of legal claims. Right to the Personal Data portability. Customer shall have the right to receive the Personal Data concerning him, which Customer has provided to Provider, in a structured, commonly used and machine-readable format and have the right to transmit those data to another controller without hindrance from the controller to which the Personal Data have been provided. In exercising Customer’s right to the Personal Data portability, Customer shall have the right to have the Personal Data transmitted directly from one controller to another, where technically feasible.
  10. Customer hereby agrees to comply with all applicable Privacy Policy and the Personal Data protection regulations. Provider may ask Customer to verify Customer’s identity before action to Customer’s request.
  11. If You have any request or question concerning the Privacy Policy or the Personal Data protection/processing, please contact us at any time via e-mail data.protection.officer@smartrecordapp.com.

VI. Confidentiality

  1. Confidential information means, unless otherwise agreed herein, any information, knowledge, data, documentation (particularly technical documentation, drawing documentation, software documentation, hardware documentation), know how, technical, economic, financial, business, strategic information, or any kind of information derived therefrom, in any form, tangible, or intangible, oral, or written, which was specified as a confidential or which represents a trade secret (hereinafter as “Confidential Information”).
  2. In consideration of the disclosure of Confidential Information Parties agree as follows (i) to hold the Confidential Information in strict confidence and to take all reasonable precautions to protect such Confidential Information, (ii) not to disclose any such Confidential Information to any third person, (iii) not to make any use whatsoever at any time of such Confidential Information except to evaluate internally its relationship with the disclosing party, (iv) not to use any such Confidential Information to the different purpose than allowed by the disclosing party, (v) not to create any derivate work from Confidential Information, (vi) to restrict access to the Confidential Information of its personnel, agents, and or consultants, if any, who have a need to have access and who have been advised of, and have agreed in writing to treat such Confidential Information in accordance with the Terms.
  3. Parties further agree that the duty of confidentiality shall not apply to any information that (i) is or becomes (through no improper action or inaction by the receiving party or with its cooperation) generally available to the public, (ii) was rightfully and in good faith disclosed to the receiving party by a third party, (iii) was independently developed by the receiving party without use of any Confidential Information of the disclosing party; or (iv) was required by law or a court order.

VII. Warranties, Disclaimer of Warranties

  1. Provider only warrants to Customer that the Application Services will perform materially in accordance with the documentation that accompanies or is available for the Application Services. Provider’s sole liability and Customer’s only exclusive right and remedy for a breach of the foregoing warranty is for Provider to correct or re-perform the nonconforming Application Service, unless otherwise agreed herein.
  2. Customer warrants that he owns and has obtained all necessary rights, titles and consents to transfer the Customer Data to Provider and his Suppliers or Processors (e.g. data center providers) to process such Customer Data in accordance with the Terms.
  3. Use of the Application Services and Products provided by Provider, including the Beta Services and all other related services (hereinafter as “Services”), is at Customer’s sole risk. The Services are provided “as is” and “as available” basis with all faults and without any warranty of any kind. Provider, his Suppliers, Processors and Licensors expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied indemnities and warranties of merchantability, fitness for a set purpose, title and non-infringement. Unless otherwise agreed herein, Provider does not guarantee an accuracy, completeness, or usefulness of his Services, and Customer relies on such Services at Customer’s own risk. Any material that Customer accesses or obtains through Provider’s Services, including the Customer Data, is done in Customer’s own discretion and risk and only Customer will be solely responsible for any damage caused to him or any third persons during the usage of the Services. No advice or information, whether oral or written, obtained by Customer from Provider or through or from the Services will create any warranty not expressly stated in the Terms.

VIII. Limitation of Liability, Indemnification

  1. In no event will Provider, his Suppliers, Processors and Licensors be liable for any direct, indirect, special, incidental, exemplary, punitive or exemplary damages arising out of or regarding the Terms or/and Customer’s use of the Services, or for any damages associated with any loss of use, business, profits, or goodwill or other intangible losses of Customer.
  2. Under no circumstances will Provider’s aggregate liability for any and all claims hereunder exceed the amounts that Customer has paid to Provider for Customer’s usage of the Products in 12 months prior to Customer’s claim.
  3. Insofar as some states do not allow the exclusion or limitation of incidental or consequential damages, Parties hereby agree, that in case that applicable law prohibits any limitation of liability herein, such limitation will be automatically modified, but only to the extent to make the limitation compliant with applicable law.
  4. Customer will defend Provider, his Suppliers, Processors and Licensors from all third person claims, actions, suits, any costs, damages, expenses, and liability caused by Customer’s usage of the Services, Customer’s violation of any rights of a third person through usage of the Services.

IX. Termination

  1. Parties may terminate the Terms with or without cause immediately upon providing an e-mail notice to the other Party. Upon any termination of the Terms, (i) Customer must discontinue accessing and using and delete the Application Services, (ii) the Article II. (Licenses), Article V. (Privacy Policy), Article VI. (Confidentiality), Article VII. (Warranties, Disclaimer of Warranties) and Article VIII. (Limitation of Liability, Indemnification) shall survive, (iii) all obligations or liabilities that accrued prior to the effective date of termination and all remedies for breach of the Terms shall survive, and (iv) all other rights, obligations, and licenses of the parties under the Terms shall terminate.

X. Miscellaneous

  1. The Terms are governed by the laws of the Czech Republic, especially by the Civil Code Nr. 89/2012 Coll.
  2. Provider may amend the Terms from time to time. If Provider makes a change to the Terms, Provider will notify Customer by providing notice of the change (i) on the Website, (ii) through the App, or (iii) at e-mail address that Customer provided to Provider. If Customer does not agree to the modified terms, Customer shall notify Provider upon providing an e-mail notice within 30 days, after which the Terms will immediately terminate in relation to this Customer and the Provider shall have no further responsibility or liability to such Customer.
  3. All request, questions or notices upon the Terms shall be delivered at the e-mail of Provider support@smartrecordapp.com, unless otherwise agreed herein.
  4. Any dispute arising out of or regarding the Terms, including any question regarding its existence, validity, or termination, shall be finally decided (i) between Provider and Customer-non-Consumer by the Arbitration Court attached to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic by three arbitrators appointed by the President of the Arbitration Court in accordance with the Rules of the Arbitration Court, (ii) between Provider and Customer-Consumer by the court of competent jurisdiction.
  5. Provider’s failure to enforce any right or provision in the Terms will not constitute a waiver of such right or provision unless acknowledged and agreed by Provider in writing.
  6. If any provision of the Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent so the Terms will otherwise remain in full force and effect and enforceable.