Last Updated: June 30, 2018
third party acting as principal or represented by its
representatives, affiliates, employees or any other agents
(hereinafter collectively as “You”
using the https://www.smartrecordapp.com
website (hereinafter as “Website”),
the mobile application service Smart Record: Audio Recorder
(hereinafter as “App”)
and/or affiliated services provided via the App or Website
(hereinafter as “Affiliated
(hereinafter collectively as “Application
ID No.: 06454097; with its represented seat at Viktora Huga 377/4, Smichov, 150 00 Prague 5, Czech Republic; the company incorporated under the laws of Czech Republic and registered by the Municipal Court in Prague under No. C 282461 (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, by accessing Website 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.
Other used general terms:
Apple means company Apple Inc.
the App Store platform means online distribution platform, developed and maintained by the company Apple Inc., for mobile apps on its iOS operating systém
Apple ID account represents an account required for accessing Apple Inc. ecosystem and its services, content and products.
To use our Application Services, Customer needs compatible hardware, software (latest version recommended), Internet access (fees may apply) and fulfill other technical or requested requirements stated by the Provider in these Terms, via the Application Services or other tools. Our Application Services’ performance may be affected by these factors.
Customer must be 13 years or older to use our App or purchase services via the Website. 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.
Customer is further solely responsible for any activity that occurs under his Apple ID, e-mail or telephone number 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”).
The Application Services are created to provide particularly (i) Call Recording Service, (ii) Recording Service, (iii) Human and Machine Transcription of Recordings into the written text, (iv) Features stated on the App´s App Store board here: https://itunes.apple.com/us/app/smart-record-audio-recorder/id1008197697?mt=8 (e.g. photo caption, notes-making, formatting, export, public sharing of recordings, editing of transcribed text), and (v) other functions and related services (hereinafter collectively as “Product” or “Products”).
II. License, Access Rights, Restrictions
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.
Customer shall (i) provide accurate, current, and complete information when asked 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 or uses the Application Services.
Customer shall not (i) rent, lease or sublicense access to the App or Website to any third person, (ii) infringe any intellectual property or other proprietary right of any third person, while using the App or the Website, and/or (iii) violate any right or duty owed to any third person, while using the App or the Website.
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 and the Website.
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”).
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).
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.
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.
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
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) get first minute of machine transcription of any recording, and/or (iv) use the features in a basic version (hereinafter as “Free Service”).
Free Service is offered via third party (Apple) 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.
Provider offers via third party (Apple) 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) use the features in a higher-quality, (ii) get more functions and/or (iii) get special discounts or other benefits comparing to Free Service. Premium Service is billed in advance via the App Store platform according to the price stated on the App Store platform´s page and Payments Terms (Article IV. of the Terms) and is provided to a purchasing Apple ID for an unlimited period. Customer may cancel the Premium Service at any time via his Apple ID account, however Provider has in that case no duty and possibility to refund Customer already paid price, since the payment is handled by the third party (Apple) and its App Store platform.
Provider offers via third party (Apple) a paid Call Recording Service. Customer purchasing Call Recording Service may record an unlimited amount of call recordings for a specified period of time. Call Recording Service is billed in advance on pre-paid basis via the App Store platform according to the price stated on the App´s platform page and Payments Terms (Article IV. of the Terms) and is provided to a purchasing Apple ID and assigned phone number for a chosen period of time (weekly, monthly, yearly). 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 via canceling the Call Recording Service via his Apple ID account. Customer may cancel the Call Recording Service at any time, however Provider has in that case no duty and possibility to refund Customer already paid price, since the payment is handled by the third party (Apple) and its the App Store platform.
Customer acknowledges that recording of other individuals may require a clearly expressed consent of participating parties, depending on the local legislation. Customer acknowledges the responsibility to use Call Recording Service in accordance with his or her local legislation. Smart Record is not responsible for any damages caused in this regard.
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”). Transcriptions may be processed from any recordings made directly via the App, imported to the App, created and downloaded to the App through Provider’s Call Recording Service or recordings uploaded via Website. Transcriptions are billed in advance on one-time basis or monthly on pre-paid basis (hereinafter as “Individual Plan”) according to the Price List available on the Website or in the App 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.
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 reject submitted recording and/or to refuse any refund for small or unimportant differences between Human Transcription and recording.
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.
Warranty & Refunds. If (i) technical problems prevent or unreasonably delay delivery of Transcription, (ii) the App or Website 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 concerning the provided Services may be a reimbursement of the price paid, as determined by Provider or the third party (Apple), or a replacement of the Transcription. Provider may refuse a refund request if he finds evidence of fraud, refund abuse, or other manipulative behavior that entitles Provider to a corresponding counterclaim. If You have any request or claim concerning the Warranty & Refunds, please contact us at any time via e-mail firstname.lastname@example.org, via chat in the App or on the Website. Other rules are governed by the relevant law regulation. All claims arising out the Application Services provided to Customer via Apple shall be applied to Apple as the agent of Provider based on contact information in an issued invoice.
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 without any further notice to Customer.
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
When Customer purchases any Product, Customer agrees to pay directly to Provider or via its Supplier all amounts specified in the order. Customer will be charged via credit card, debit card or via the App Store platform (hereinafter as “Transaction”).
If needed, customer must submit his e-mail before his first Transaction.
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.
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.
Here are general clarifying statements briefly outlining Smart Record´s attitude towards data collection:
If you are using the App without making purchases, you are an anonymous user to us and we collect only technical information necessary for running and improving the app (iOS version, device model, app usage, crash reports, device location) – some of this data has been requalified as personal data as well.
When you are purchasing services, you are required to fill in personal data such as phone number for Call Recording service or email for Transcription Service. This data is required so that we can deliver the service to you and to fulfil legal obligations (invoices).
We don´t share any information concerning you or your device with any 3rd parties, unless it is necessary for running the App or Website, delivering services, our own marketing activities or fulfilling legal obligations.
Technical 3rd parties are f.e. Apple (app), Microsoft (servers), Intercom (chat), Mixpanel (app analytics & push-notification).
Legal 3rd parties are f.e. accounting company processing invoices for services that contain your email or billing information.
We don´t have an access to recordings on your device, unless you decide to use a service or feature that requires them to be uploaded to our servers (Transcription, Call Recording, Public Sharing).
All your recordings are your intellectual property and we don´t have any rights or responsibilities in relation to that property.
Under recent legislation concerning data privacy (General Data Protection Regulation), many types of data have been designated as personal data to catch up with the nature of digital age. 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 a name and surname, 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 or uploads a recording and purchases Transcription via the Website, Provider may collect variety of non-personal data of technical nature (version of the operating system, device model, number of recordings, etc.). This data allows Provider f.e. to improve the App´s and Website´s performance and resolve potential technical issues. Provider may collect also other kinds of data that are considered as Personal Data f.e.: contact information (e-mail address, billing information, phone number), device information (unique device identifier, iOS identifier), location (device´s city location) (hereinafter collectively as “Personal Data”), etc. These are used primarily for delivery of Services purchased via the App or via the Wesbite and optimization of Provider´s marketing activities.
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.
The Personal Data are proceeded both in an automated and a manual way and are stored for 10 years.
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 or immaterial damage, severe harm or impact to Provider, any data subjects and/or thirds parties. Sensitive data includes, but is not limited to: health data, genetic data, biometric data, data revealing racial or ethnic origin, political opinions, 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.
The App and the Website is not designated for children. By downloading or installing the App, or uploading a recording and purchasing Transcription via the Website, 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.
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 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 Provider is subject, (iv) Customer withdraws consent on which the processing is based and there is no other legal ground for the processing, and/or (v) Customer objects to the processing and there are no overriding legitimate grounds for the processing. . Provider will not erase the Personal Data, if the processing of the Personal Data is necessary for (i) the exercising the right of freedom of expression and information, (ii) the 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 Provider, (iv) the reasons of public interest in the area of public health, (v) the 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, and 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 Provider 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.
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”).
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.
Parties further agree that the duty of confidentiality shall not apply to any information that (i) is or becomes (through no improper or illegal 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.
Provider only warrants to Customer that the Application Services will perform materially in accordance with the documentation that accompanies or is available via the Application Services. In that case, 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.
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.
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 of Provider not expressly stated in the Terms.
VIII. Limitation of Liability, Indemnification
In no event will Provider, his Suppliers, Processors and Licensors be liable for any direct, indirect, special, incidental, exemplary, and/or punitive 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.
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.
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.
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.
The Terms are governed by the laws of the Czech Republic, especially by the Civil Code Nr. 89/2012 Coll.
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) via the App, or (iii) at e-mail address that Customer provided to Provider. If Customer does not agree to the modified terms, Customer shall discontinue using the Application Services and uninstall the App from his device, not accept the modified terms by not-clicking the notifying button, or 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.
All request, questions or notices upon the Terms shall be delivered at the e-mail of Provider email@example.com, unless otherwise agreed herein.
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.
If a consumer dispute between Provider and Customer-Consumer, that cannot be settled by agreement, arises out of or regarding the Terms, the Customer-Consumer may submit a proposal for an out-of-court settlement of such a dispute to a designated extrajudicial dispute resolution body, which is Czech Trade Inspection, Central Inspectorate - ADR Unit, with ites represented seat at Stepanska 15, 120 00 Prague 2, email: firstname.lastname@example.org, web: adr.coi.cz.
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.
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.