TERMS OF USE
Last updated: December 5, 2018
YOUR USE OF THIS APP, THE SERVICES IT ENABLES, RELATED WEBSITES AND/OR THE CONTENT CONTAINED THEREIN CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS OF USE. IF YOU ARE UNDER AGE 18 YOU REPRESENT AND WARRANT THAT YOU HAVE YOUR PARENT OR GUARDIAN’S PERMISSION.
SpeechMatch (“SM”) provides software applications and related websites (collectively, the “App”) that allow users to hear phrases containing various emotional content (happy, sad, neutral, funny, sarcastic) and to see the sound waves generated by those phrases. The user then repeats the phrase and receives immediate feedback about their percentage match of pitch, rhythm, and volume. The App, including all of its features and content, and the Services are made available by SM or its present or future affiliates and all content, information, text, photographs, video, audio, graphics and software provided on or through the App (the “Content”) and Services may be used solely under the following terms and conditions of use (“Terms of Use”).
1. Limited App License
The App, the Content and the Services are protected by copyrights, trademarks, patents (patent pending), service marks and/or other proprietary rights and laws of the U.S. and other applicable countries. As a user of the App you are granted a nonexclusive, nontransferable, revocable, limited license to access and use the App, the Content and the Services in accordance with these Terms of Use. SM may terminate this license at any time for any reason or no reason. The program requires you to provide consent to these stipulations.
2. Fees and Payments
SM may charge fees for access to certain parts of the App, the Content and the Services. In order to access these areas and use the Services, you must become a Member. Any specific arrangement you may make with SM regarding payment of fees shall not affect in any way your other obligations under these Terms of Use, except as provided otherwise herein. You shall pay all fees and charges incurred through your account at the rates in effect for the pay period in which such fees and charges are incurred, including but not limited to charges for any products or services offered for sale through the App. All fees and charges shall be billed to you, and you shall be solely responsible for their payment. You shall pay all applicable taxes relating to the use of the App, Content, Services and other products or services through your account. Certain portions of the App, or the App as a whole, may require a subscription and a prepaid fee which may be modified from time to time in SM’s sole discretion. The prepaid fee, and all taxes and other fees related thereto will be paid by you in advance. In no event will you be allowed access to any portion of the App, the Content or the Services for which a prepaid fee is required unless and until MP-CSM receives all fees and charges payable by you.
3. Limitations on Use; Third Party Communications
3.1. Limitations on Use
(a) You may not decompile, recompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicense, or create derivative works from the App or the Content. You may not use any network monitoring or discovery software to determine the App’s architecture, or extract information about usage, individual identities or users. You may not use any robot, spider, crawler, scraper or any other automatic software or a camera or other device, or manual process to monitor or copy the App or the Content. Unless permitted by law or license, you may not copy, modify, reproduce, republish, distribute, display, or transmit for commercial, noncommercial or public purposes all or any portion of the App or the Content. You may not use, transfer, distribute or dispose of the App, the Content or the Services in any manner that could compete with the business of SM. You may not use or otherwise export or re-export the App or any portion thereof, or the Content in violation of the export control law and regulations of the United States of America. Any unauthorized use of the App, the Services or the Content is prohibited.
(b) You may only use SpeechMatch Scores for individual, non-commercial, educational purposes. You may not use the App, Services or Content in a way that violates the copyright or any other intellectual property right of any third party.. You may not use the App or Service: (i) to circumvent any digital rights management or any other copyright rights protection measures; (ii) to remove or falsify any copyright notices or other copyright management information; (iii) to take any photographs of subject matter falling outside the scope of the Services as described herein (iiiv) for any illegal purpose, in any illegal manner or in any manner inconsistent with these Terms of Use.
(c) You hereby represent and warrant that (i)) you will not make any other use of the App, Services or Content in violation of these Terms of Use; (ii) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (iii) you are not listed on any U.S. Government list of prohibited or restricted parties.
3.2. Third Party Communications
SM disclaims all liability for any Third Party Communications, as defined below, that you may receive and any actions you may take or refrain from taking as a result of any Third Party Communications. You are solely responsible for assessing and verifying the identity and trustworthiness of the source and content of any Third Party Communications. SM assumes no responsibility for verifying, and makes no representations or warranties regarding, the identity or trustworthiness of the source or content of any Third Party Communications. As used herein, “Third Party Communications” means any communications directed to you from any third party directly or indirectly in connection with the App, the Content or the Services.
4. Intellectual Property Rights
Except as expressly provided in these Terms of Use, nothing contained herein shall be construed as conferring on you or any third party any license or right, by implication, estoppel or otherwise, under any law (whether common law or statutory law), rule or regulation including, without limitation, those related to copyright or other intellectual property rights. You agree that the App, the Content and the Services are protected by copyrights, trademarks, service marks, patents and/or other proprietary rights and laws.
5. Registration
Certain sections of the App require you to register. If registration is required, you agree to provide accurate and complete registration information. It is your responsibility to inform MP-CSM of any changes to that information. Each registration is for a single individual only unless otherwise specifically agreed between you and SM. SM does not permit i) anyone other than you to use or access the Content or sections of the App requiring registration or to make use of the Services by using your name or password; or ii) access through a single name that is made available to multiple users on a network or otherwise. You are responsible for preventing such unauthorized use. If you believe there has been unauthorized use, you must notify SM immediately by emailing us via the Contact page at www.speechmatch.com.
6. Errors and Corrections
SM does not represent or warrant that the App, the Content or the Services will be error-free, free of viruses or other harmful components, or that defects will be corrected or that they will always be accessible. SM does not warrant or represent that the Content or the Services available on or through the App will be correct, accurate, timely, or otherwise reliable. SM may make improvements and/or changes to its features, functionality, the App, the Content or the Services at any time.
7. Assumption of Risk
You are solely responsible for ensuring that your use of the App and the Services complies with applicable law and does not violate the rights of any third party, including, without limitation, copyright rights. You assume all liability for any claims, suits or grievances filed against you, including, but not limited to, all damages related to your use of the App and/or Services.
8. DISCLAIMER
THE APP, THE CONTENT, AND THE SERVICES ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. SM EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SM DISCLAIMS ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, AND/OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO (A) ANY ERRORS IN OR OMISSIONS FROM THE APP, THE CONTENT, OR THE SERVICES INCLUDING, BUT NOT LIMITED TO, TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS, (B) THIRD PARTY COMMUNICATIONS, (C) ANY THIRD PARTY APPS OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS IN THE APP, INCLUDING BUT NOT LIMITED TO ANY ERRORS IN OR OMISSIONS THEREFROM, (D) THE UNAVAILABILITY OF THE APP, THE CONTENT, THE SERVICES OR ANY PORTION THEREOF, (E) YOUR USE OF THE APP, THE CONTENT OR THE SERVICES, AND (F) YOUR USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE APP, THE CONTENT OR THE SERVICES.
9. LIMITATION OF LIABILITY, DISPUTE RESOLUTION AND ARBITRATION
(a) TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, SM SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM YOUR USE OF THE APP, THE CONTENT, THE SERVICES, ANY FACTS OR OPINIONS APPEARING ON OR THROUGH ANY THIRD PARTY COMMUNICATIONS. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, SM SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE APP, THE CONTENT, THE SERVICES OR ANY THIRD PARTY COMMUNICATIONS. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, SM SHALL NOT BE LIABLE TO ANY PARTY FOR CLAIMS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE APP OR SERVICES, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR COPYRIGHT INFRINGEMENT. TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, MP-CSM’S SOLE OBLIGATION TO YOU FOR DAMAGES SHALL BE LIMITED TO $100.00, UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW.
(b) YOU AND SM AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE ARISING HEREUNDER WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT YOU WILL NOT SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU ACT OR PROPOSE TO ACT IN A REPRESENTATIVE CAPACITY. YOU FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF SM AND ALL PARTIES TO ANY SUCH PROCEEDING.
(c) It is SM’s goal that the App and the Service meet your expectations, However, there may be instances when you have a problem or dispute that needs special attention. In those instances, MP-CSM is committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your issue. Therefore, for any problem or dispute that you may have with SM, you acknowledge and agree that you will first give SM an opportunity to resolve your problem or dispute. This includes you first sending a written description of your problem or dispute using the Contact page at www.speechmatch.com.
(d) You then agree to negotiate with SM in good faith about your problem or dispute, This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within sixty (60) days after SM’s receipt of your written description of it, you agree to the further dispute resolution provisions below.
(e) You agree that the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of the App, the Service or these Terms and Conditions, shall be final and binding arbitration, excel to the extent that you have in any manner infringed upon or violated or threatened to infringe upon or violate SM’s or any third party patent, copyright, trademark, trade secret, privacy or publicity rights, in which case you acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought by SM and/or the applicable third party(ies). You and we acknowledge that the Agreement affects interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under the Agreement (despite any other choice of law provision).
(f) Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA”). For claims of less than (75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for claims over )75,000, the AAA's Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Upon your filing of the arbitration demand, the costs of arbitration shall be shared equally between the parties and subject to later apportioned by the arbitrator. You and we agree to pay our own other fees, costs, and expenses, including those for any attorneys, experts, and witnesses. An arbitrator may award on an individual basis any relief that would be available In a court, including injunctive or declaratory relief and attorneys’ fees. As a limited exception to the agreement to arbitrate, you and we agree that you may take claims to small claims court, if your claims qualify for hearing by such court.
(g) YOU HAVE A RIGHT TO OPT-OUT OF THIS ARBITRATION AGREEMËNT. IF YOU DO NOT AGREE TO THIS MANDATORY ARBITRATION PROVISION WITH REGARD TO ANY PARTICULAR INTERACTION WITH THE APP OR THE SERV|CE, THEN WITHIN THTRTY (30) DAYS FROM THE DATE OF SUCH INTERACTION, YOU MAY OPT-OUT OF THIS PART OF THE AGREEMENT BY SENDING AN EMAIL via the Contact page at www.speechmatch.com. Any opt-out received after the thirty (30) day time period will not be valid and you must pursue your claim via arbitration pursuant to these Terms.
(h) To the fullest extent permitted by applicable law, NO ARBITRATION OR OTHER CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CI.AIM. INCLUDING ANYARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SITE OR THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN the EVENT that this CLASS ACTION WAIVER is deemed unenforceable, then any putative class action may only proceed in a court of competent jurisdiction and not in arbitration.
(i) WE BOTH AGREE THAT, WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT, YOU AND SM BOTH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN US. In no event shall any claim, action or proceeding by you related in any way to the Site, the Service, or these Terms and Conditions, be instituted more than one (1) year after the cause of action arose.
10. Indemnification
You agree to indemnify, defend and hold harmless SM, its present and future officers, directors, employees, agents, licensors, suppliers and any third party information providers to the App from and against all claims, losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of these Terms of Use by you or arising from or related to your use or misuse of the App or Services (including, without limitation, use in contravention of copyright and other intellectual property law).
11. Third Party Rights
The provisions of paragraphs 8 (Disclaimer), 9 (Limitation of Liability, Dispute Resolution and Arbitration) and 10 (Indemnification) are for the benefit of SM and its present and future officers, directors, employees, agents, licensors, suppliers, and any third party providers to the App. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.
12. Unlawful Activity; Termination of Access
SM reserves the right to investigate complaints or reported violations of the Terms of Use and to take any action SM deems appropriate including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to Member profiles, e-mail addresses, usage history, posted materials, IP addresses and traffic information. SM may discontinue any party’s participation in the Services and/or the App at any time for any reason or no reason.
13. Remedies for Violations
SM reserves the right to seek all remedies available at law and in equity for violations of these Terms of Use, including but not limited to the right to block access from a particular IP address or other user identifier to the App, the Services and any other MP-CSM apps and their features.
15. Privacy
Your use of the App is subject to SM’s Privacy Policy posted on www.speechmatch.com.
16. Severability of Provisions
These Terms of Use incorporate by reference any notices contained on the App and the Privacy Policy and constitute the entire agreement with respect to access to and use of the App, the Services and the Content. If any provision of these Terms of Use is deemed unlawful, void or unenforceable by a court of law exercising proper jurisdiction, that provision shall be deemed severed from the remaining provisions and shall not affect their validity and enforceability. No waiver of any provision hereof shall be valid unless in writing signed by the parties. No failure to enforce any right or remedy hereunder shall operate as a waiver of the right to enforce such right or remedy in the future or of any other right or remedy.
17. Apple-Specific Provisions
These Terms of Use are between you and SM only and Apple Inc. (“Apple”) is not a party hereto. These Terms of Use are not intended to provide for usage rules that are less restrictive than those provided in Apple’s usage rules for licensed applications, or to otherwise conflict with the Apple App Store Terms of Service. You may only use the App on an iPhone or iPad that you own or control and only as permitted by the usage rules set forth in Apple’s App Store Terms of Service. Only SM is responsible for providing maintenance and support services related to the App as specified herein and under applicable law, and you and SM acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App, if one is ever charged, to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be SM’s sole responsibility. You and SM acknowledge that SM, not Apple, is responsible for addressing any claims of end-users or any third party relating to the App or your possession and/or use of that App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and SM acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, SM and you (as provided for herein), not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Apple and its subsidiaries are third party beneficiaries to these Terms of Use and upon your acceptance of these Terms of Use Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against end-users as a third party beneficiary hereof.
18. Modifications to Terms of Use
SM reserves the right to change these Terms of Use at any time. Updated versions of the Terms of Use will appear on the App and are effective immediately. You are responsible for regularly reviewing the Terms of Use. Continued use of the App after any such changes constitutes your consent to such changes. Please direct any questions, complaints or claims regarding the App or the Service via the Contact page at www.speechmatch.com.