Conditions générales d'utilisation

Last Updated: October 31, 2016

Transcense, Inc. (“Ava.me,” “Ava,” “we,” “us” or “our”) provides the Ava.me website (the “Site”), affiliated software and mobile applications (the “Apps”), and the services provided by or through the Site and the Apps (collectively, the “Services”) subject to these terms and conditions of use, and all policies and guidelines referenced herein (as amended from time to time, the “Terms”).

Services Description

The Services capture audio input through Devices (as defined below) to provide real-time transcription, translation, captions and editing capabilities to empower deaf and hard of hearing individuals to better participate in conversations. A “Device” is any computer used to access the Services, including, without limitation, a desktop, laptop, mobile phone, tablet, or other consumer electronic device. Subject to the terms, conditions and limitations set forth in the Terms, we grant you a nonexclusive, non-transferable and revocable license to use the Services on any compatible Device.

Privacy

Please refer to our Privacy Policy for information on how Ava collects, uses and discloses your information when you use the Services. The Privacy Policy is incorporated into and subject to these Terms, and by agreeing to these Terms, you are acknowledging and accepting the Privacy Policy.

Registration and Creation of an Account

You may be required to register and subscribe with us in order to access and use certain features of the Services. If you are under 13 years of age, you are not authorized to use the Services, with or without registering. In addition, if you are under the age of majority in your jurisdiction (e.g., under 18 in the United States), you may only use the Services, with or without registering, with the approval of your parent or guardian. You agree to provide accurate, current and complete information about you as may be prompted by any registration forms (“Registration Data”) and promptly update the Registration Data, and any other information you provide to us, to keep it accurate, current and complete. You are responsible for maintaining the confidentiality of your login credentials and account, and are fully responsible for any and all activities that occur under your account. You agree to (i) immediately notify us of any unauthorized use of your login credentials or account or any other breach of security; and (ii) ensure that you exit from your account at the end of each session when accessing the Services.

General Practices and Modifications to Services

You acknowledge that Ava may establish general practices and limits concerning use of the Services, including, without limitation, the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on Ava’s servers on your behalf. The Services may evolve over time as we refine and add more features. We reserve the right to modify, limit, suspend or discontinue, temporarily or permanently, the Services (or any part thereof) at any time with or without notice. We may also remove any content from the Services at our discretion. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.

Types of Users, Pricing and Billing

The different categories of users, the types of Services accessible to the different categories of users, the pricing associated to each category of user, and the billing process are described on the Site, and may change from time to time in our discretion. We will provide notice of any such changes on the Site. Your continued use of the Services after any such changes constitutes your agreement to the changes.

If you are sponsoring another user’s account by paying for such user’s access and use of the Services (a “Sponsor”), you also agree to be bound by these Terms (and the Privacy Policy as incorporated herein).

To use the Services, you may be required to make one or more payments and provide Ava information regarding your credit card or other payment instrument. You represent and warrant to us that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay us the amount that is specified in the Services in accordance with the terms therein and these Terms.

IF YOUR ACCOUNT IS IN A TRIAL PERIOD OR SET TO AUTO RENEWAL, WE MAY AUTOMATICALLY CHARGE AT THE END OF THE TRIAL, OR FOR THE RENEWAL, UNLESS YOU NOTIFY US THAT YOU WANT TO CANCEL YOUR SUBSCRIPTION TO THE SERVICES.

You agree that Ava may collect and use technical data, personal information and related information in connection with your use of the Services, including, but not limited to, contact information and technical information about your Device, system and the Apps, and peripherals, that are gathered periodically to facilitate the features and functionality of the Services and software updates, product support and other services. You also consent to our communicating with you about the Services or in connection with the features, functions and activities contained in the Services. Please see our Privacy Policy for more information about how Ava collects, uses, stores and discloses personal information collected through our Services, and how to opt-out of communications.

User Conduct

You acknowledge and agree that when you and others interact with Ava, Ava may capture audio recordings of such interactions (the “Recordings”) in order to transcribe, translate and create captions for you (the “Captions”). You agree that Ava and its licensees and contractors may use and store any such Captions and/or Recordings, and any speech data contained therein (the “Speech Data”), including your voice and likeness (and others’ voices and likenesses) as may be captured therein, to provide, maintain and improve the Services, including for research and development purposes, and for other purposes as set forth in the Privacy Policy. To the extent that others’ voices and likenesses have been captured by you using the Services, you agree that you have obtained the requisite consent required in your jurisdiction from such individuals sufficient to grant a license to Ava as required by these Terms.

You are solely responsible for all information, data, text, audio, sound, Recordings, Captions, Speech Data, images, graphics, messages or other materials that you receive, send, post, publish, display or email or otherwise use via the Services (“Subscriber Content”). You, and not Ava, are responsible for maintaining and protecting all Subscriber Content that you receive, caption, send or store on the Services. If you authorize third parties to access your Subscriber Content through the Services, you agree that we are permitted to provide to them the Subscriber Content, and that we have no responsibility or liability for their use of such Subscriber Content. Ava will not be liable for any loss or corruption of Subscriber Content, or for any costs or expenses associated with backing up or restoring any Subscriber Content. Although we do not pre-screen Subscriber Content, Ava and its designees will have the right (but not the obligation), in our sole discretion, to refuse, remove, screen or edit without notice any Subscriber Content transcribed, stored or available on the Services that we believe violates these Terms or is otherwise objectionable.

The capture of Recordings and the real-time transcription and translation of such Recordings into Captions are not always accurate or error-free, and may not reflect the words or intent of the speaker. You acknowledge and agree that you must evaluate, and bear all risks associated with, the use of any Subscriber Content, including any reliance on the accuracy, completeness, or usefulness of such Subscriber Content.

User Restrictions

You agree not to do, or authorize or permit any third party to do, any of the following: (i) eavesdrop on conversations without disclosing that Ava and the Services are being used and obtaining consent from such conversers; (ii) use the Services in any jurisdictions where such use would be illegal (e.g., without obtaining the requisite consent from participants, as required in such jurisdiction); (iii) use the Apps and Services for purposes other than for accessibility to or transcription of conversations; (iv) create an API for the Apps or Services for purposes other than for accessibility to or transcription of conversations; (v) knowingly leave the Apps in the “on” mode so that the Services are being accessed and used on a non-stop, continuous basis; (vi) use the Services to capture, transcribe or caption conversations from the television, radio, video, or other broadcast mediums; (vii) use the Services in high-stakes situations where accurate transcription is important; (viii) copy, reproduce or distribute the Services; (ix) sell, license, rent, assign, lease, lend, redistribute or sublicense the Services; (x) modify, port, translate, or create derivative works of the Services; (xi) decompile, disassemble, reverse engineer or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Services by any means (except as and only to the extent any of these restrictions are prohibited by applicable law); (xii) use the Services for commercial use; (xiii) knowingly take any action that would cause the Services to be placed in the public domain; (xiv) remove, alter or obscure any copyright, trademark or other proprietary rights notice or labels on or in the Services; (xv) interfere with or disrupt the Services or servers or networks connected to the Services; (xvi) breach or otherwise circumvent any security or authentication measures; (xvii) violate any requirements, procedures, guidelines, policies or regulations of networks connected to the Services; (xviii) violate any applicable local, state, national or international law, or any regulations having the force of law; (xix) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (xx) solicit personal information from anyone under the age of majority in your jurisdiction (e.g., under 18 in the United States); (xxi) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; (xxii) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services; (xxiii) publish anything misleading that is fraudulent, misleading, or infringes another’s rights; or (xxiv) promote or advertise products or services other than your own without appropriate authorization.

If you violate any of the restrictions set forth in the Terms, you may incur additional charges, your right to use the Services may be restricted and/or we may terminate your right to use the Services in our discretion. If you have infringed the copyright and other rights of Ava, you may be subject to prosecution and damages. Ava reserves all rights not expressly granted in the Terms, and no licenses are granted by Ava to you under the Terms, whether by implication, estoppel or otherwise, except as expressly set forth in the Terms.

Limited License of Subscriber Content

We do not claim any ownership interest in your Subscriber Content, but we do need the right to use your Subscriber Content to the extent necessary to operate the Site and the Apps and provide and improve the Services, now and in the future. Therefore, by sending, modifying, or distributing Subscriber Content to or through the Services, you (a) represent and warrant that (i) you own and control all the right, title and interest to the Subscriber Content that you send, receive, modify or otherwise distribute, or you otherwise have the lawful right to send, receive, modify and distribute that Subscriber Content, to or through the Services and (ii) the use and transmission of such Subscriber Content does not violate these Terms and will not violate any rights of, or cause injury to, any person or entity; (b) grant Ava and its affiliates and subsidiaries a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicenseable, perpetual, irrevocable license to use, copy, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such Subscriber Content in connection with the operation and development of the Services, in any form, medium or technology now known or later developed, in all cases as consistent with the Privacy Policy; and (c) are able to satisfy your other obligations pursuant to these Terms.

You acknowledge and agree that we may preserve Subscriber Content and may also disclose Subscriber Content under certain limited circumstances as set forth in the Privacy Policy. You understand that the technical processing and transmission of the Services, including your Subscriber Content, may involve (a) transmissions over various computer networks; and (b) changes to conform and adapt to technical requirements or limitations of connecting networks or Devices.

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (the “Submissions”), provided by you to us are non-confidential and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

Trademarks and Third Party Trademarks

Ava’s brand, name, logos and any other product, service name or slogan included in the Site, the Apps and the Services are trademarks of Ava and may not be copied, imitated or used, in whole or in part, without the prior written permission of Ava. In addition, the look and feel of the Services, including all custom graphics, button icons and scripts are the service marks, trademarks and/or trade dress of Ava and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services (the “Third Party Trademarks”) are the property of their respective owners, and the use of such Third Party Trademarks will inure to the benefit of each trademark owner. The use of such Third Party Trademarks is intended to denote interoperability and does not constitute: (i) an affiliation by Ava and its licensees with such company; or (ii) an endorsement or approval by such company of Ava and its licensees and its products or services.

We respect others’ intellectual property and we ask that you do too. We will respond to notices of alleged copyright infringement if they comply with the law and are properly provided to us. We reserve the right to delete or disable content alleged to be infringing and to terminate repeat infringers. Our designated agent for notice of alleged copyright infringement on the Services is:

Copyright Agent Transcense, Inc. 60 Spear Street, 94105 San Francisco, CA legal@ava.me

Other Content

The Services and the Subscriber Content may contain links to third-party websites or resources. Ava does not endorse and is not responsible or liable for their availability, accuracy, content, products, or services. You are solely responsible for your use of any such websites or resources.

User Disputes

You agree that you are solely responsible for your interactions with any other user in connection with the Services and we will have no liability or responsibility with respect thereto. We reserve the right, but have no obligation, to become involved in any way with disputes between you and any other user of the Services.

Suspension and Termination

Ava may suspend and/or terminate your rights with respect to the Services for any reason or for no reason at all and with or without notice at our sole discretion. Suspension and/or termination may include restricting access to and use of the Services. Termination may also include immediate deactivation or deletion of your account and all related information and files in your account. If your rights with respect to the Services are suspended and/or terminated, you agree to make no further use of the Services during suspension or after termination. Further, you agree that we will not be liable to you or any third party for any suspension or termination of your access to the Service. Ava reserves the right, but does not undertake any duty, to take appropriate legal action including, but not limited to, the pursuit of civil, criminal and/or injunctive redress against you for continuing to use the Services during suspension or after termination, and you agree that Ava may recover its reasonable attorney’s fees and court costs from you for such actions.

Although it is Ava’s intention for our Services to be as available as much as possible, there may be occasions when our Services may be suspended or interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.

Indemnification

You agree to release, indemnify, defend, and hold harmless Ava and its affiliates and their officers, employees, directors and agent from and against all liabilities, losses, damages, expenses (including, but not limited to, settlement costs, reasonable attorneys’ fees, penalties, interest and disbursements), rights, claims, suits, actions or proceedings of any kind (whether actual or threatened) and injury (including death) arising out of or relating to your use of the Apps, the Services, Subscriber Content, your connection to the Services, your violation of these Terms or your violation of any rights of another.

Disclaimer of Warranties

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AVA DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE TERMS, THE APPS, THE SERVICES, ANY AVA MATERIALS, ANY AVA PRODUCTS AND OTHER SERVICES, THE SUBSCRIBER CONTENT, THIRD PARTY SITES AND THIRD PARTY TRADEMARKS WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT AVA KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. AVA DOES NOT WARRANT THAT: (A) THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE ACCURATE OR MEET YOUR REQUIREMENTS; (B) THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; OR (C) ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY AVA OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.

Limitation of Liability

You acknowledge and agree that Ava is not liable to you for any of your use of the Services or for any faulty capture of audio and errors or omissions in transcriptions, translations, or captions. You agree that we have no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services, and you agree not to treat the Services as providing reliable storage of data or other content. You agree that we will not be liable to you or to any third party for any modification, limitation, suspension or discontinuance of the Services. In addition, under no circumstances will Ava be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content.

WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL AVA OR ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSEES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, PROFITS OR OTHER INTANGIBLE LOSSES) DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE, MISUSE OR THE INABILITY TO USE THE SERVICES; (II) INACCURATE CAPTIONS OR TRANSCRIPTIONS PROVIDED BY THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (V) ANY BREACH OF THESE TERMS BY YOU; OR (VI) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL AVA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID AVA IN THE LAST THREE MONTHS.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.

You represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

Jurisdiction

With respect to any disputes or claims not subject to arbitration, as set forth below, you and Ava agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California.

Dispute Resolution and Arbitration

You and Ava agree to arbitrate any dispute arising from the Terms or relating to the Services, except that you and Ava are not required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.

You and Ava agree that you will notify each other of any dispute within 30 days of when it arises, that you will attempt informal resolution prior to any demand for arbitration, that any arbitration will occur in San Francisco County, California and that arbitration will be conducted confidentially by a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in the Terms. The arbitration must commence within 45 days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within 60 days of the conclusion of the arbitration and within 6 months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction. You and Ava also agree that the state or federal courts in San Francisco County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND AVA WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.

Time Limitation on Claims

You must bring any claim related to these Terms or our Services within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it is not filed in time, the claim is permanently barred.

Entire Agreement

These Terms constitute the entire and exclusive agreement between you and Ava with respect to the Services, and supersede and replace any other agreements, terms and conditions applicable to the Services. These Terms create no third party beneficiary rights. These Terms will also govern any upgrades or supplements to the original Services, unless such upgrade or supplement is accompanied by separate terms, in which case those terms will govern.

Modifications to Terms

We may revise these Terms from time to time and the most current version will always be posted on our Site. If a revision, in our sole discretion, is material we will notify you. Other changes may be posted to our terms page, so please check that page regularly. By continuing to use the Services after changes to the Terms have been posted, you are agreeing to be bound by the new Terms. If you do not agree to the new Terms, you must stop using the Services.

Assignment

You may not assign any of your rights in these Terms, and any such attempt is void. We may assign its rights, with or without notice to you, to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.

Force Majeure

WE WILL NOT BE LIABLE FOR FAILURE OR DELAY IN PERFORMANCE TO THE EXTENT CAUSED BY CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF OUR SERVICES.

Severability

These Terms apply to the maximum extent permitted by relevant law. If a provision is found unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible.

Waiver

Ava’s failure to enforce a provision is not a waiver of our right to do so later.

Notice for California Users

Under California Civil Code Section 1789.3, users of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Transcense, Inc. 60 Spear Street, San Francisco CA, 94105 or 4158677230.

Questions? Concerns? Suggestions?

Please contact us at legal@ava.me to report any violations of these Terms or to pose any questions regarding these Terms, the Site, the Apps or the Services.