Ditech Networks, Inc. Terms of Service for Enterprises
Effective September 1, 2012
NOTICE TO ALL USERS/SUBSCRIBERS:
PLEASE READ THIS AGREEMENT CAREFULLY
We strongly recommend that, as you read these Terms of Service, You also access and read the linked information. Use of the Service also requires You to read and accept terms offered by third parties in conjunction with the Service, including the user agreement with Your credit card or debit card issuer that You may use to pay for the Service and any applicable terms and conditions offered by Your network operator, which facilitates Your access to Your voicemail.
YOUR ORDER OF, USE OF, AND/OR ACCESS TO, DITECH NETWORK’S PHONETAG® VOICE-TO-TEXT SERVICE AND RELATED ACCOUNT ON DITECH’S SITE IS SUBJECT TO ALL THE TERMS AND CONDITIONS CONTAINED HEREIN AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU ARE AN INDIVIDUAL, YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OLD OR HAVE ATTAINED THE AGE OF MAJORITY IN THE STATE, PROVINCE, OR COUNTRY WHERE YOU LIVE TO ENTER INTO THIS AGREEMENT. IF YOU ARE ACQUIRING THE SERVICE ON BEHALF OF AN ENTITY, THEN YOU MUST BE PROPERLY AUTHORIZED TO REPRESENT THAT ENTITY AND ACCEPT THIS AGREEMENT ON ITS BEHALF.
BY ORDERING, RESPONDING AFFIRMATIVELY WITH YOUR ACCEPTANCE OF DITECH’S QUOTATION AND OFFER FOR THE SERVICE VIA EMAIL TO DITECH NETWORK’S ACCOUNT REPRESENTATIVE, ACTIVATING, USE OF, OR ACCESS OF THE SERVICE, YOU AGREE THAT ANY SUCH ACTION ON YOUR PART CONSTITUTES YOUR ACCEPTANCE AND ASSENT OF EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IN ADDITION, YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY, REFERRED TO AS “YOU” OR “YOUR”) AGREE TO PROVIDE TRUE, ACCURATE, COMPLETE, AND CURRENT INFORMATION TO ENROLL OR HAVE ENROLLED IN THE SERVICE.
YOU AGREE THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS OR CONDITIONS, THEN SO INDICATE BY RESPONDING ACCORDINGLY TO THE EMAIL THAT WAS SENT AS PART OF DITECH’S QUOTATION TO YOU AND/OR DO NOT ORDER, USE, OR ACCESS THE SERVICE.
These Terms of Service constitute an agreement (these “Terms of Service” or “Agreement”) by and between Ditech Networks, Inc., (“Ditech”), and You for Ditech PhoneTag® Voice-to-Text Service (the “Service”). Subject to the terms and conditions of this Agreement, the Service enables You to have Your voicemail messages or audio files transcribed -to –text.
(a) “Account” or “Service Account” refers to the Service plans and features selected by You at the time of enrollment and accepted by Ditech, as such plans and features may change by mutual written consent of the parties.
(b) “Authorized Representative” refers to You if You are representing yourself as an individual or entering on behalf of an entity, or in the case of Ditech, its Chief Financial Officer or designee.
(c) “Credit Card” refers to the valid credit card(s) or debit card(s) which You hereby authorize and designate Ditech to use in paying for Your subscription of the Service.
(d) “Effective Date” refers to the date of commencement of the Service as listed in the Final quotation You received from Ditech’s Account Representative.
(e) “Final Quotation” is the final quotation You received from Ditech’s Account Representative (and which You’ve accepted) that details certain business terms relating to Your subscription of the Service.
(f) “Materials” refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Ditech or any other third party.
(g) “Customer Data” refers to data and information, including personally identifiable information, personal data in electronic form input or in any other form collected through the Service by or from You, your company, or any other end-users of your account, as the case may be. Customer Data excludes data or information that have been anonymized such that they are no longer personally identifying, or aggregated such that the data or information is no longer readily segregable.
(i) “Service” refers to Ditech’s audio transcription service marketed as the Ditech Phonetag® Voice-to-Text Service.
(j) “SLA” refers to Ditech’s service level agreement set forth in Exhibit_A hereto, as such service level agreement may change from time to time.
2. Service. Subject to the terms and conditions of this Agreement, Ditech will provide the Service to You pursuant to its standard policies and procedures then in effect.
(a) In order to activate and use an Account for the Service, You must follow the instructions set forth in the final quotation from Ditech.
(b) If You would like to make changes to Your Account information, You may update Your Account by contacting Ditech’s Customer Service team and that information will be updated. If You have any questions about Your Account, You can also contact Ditech’s Customer Service team at email@example.com unless otherwise changed by Ditech.
(c) You agree that Your (or any user’s) failure to use Your account (or sub-accounts, as the case may be for multiple users under one main Account) will not be deemed as basis for refusing to pay any associated Fees or applicable Additional Charges, if any, for having an active Service account.
4. Customer’s Responsibilities.
In furtherance of this Agreement, and as conditions precedent to Ditech’s obligations hereunder, You shall:
(a) Be solely responsible for all messages and content You post or transmit using the Service. You are also solely responsible for the conduct and content of anyone using Your Account.
(b) Be responsible for fully complying with all user content and conduct rules set forth in these Terms of Service and related policies mentioned and incorporated herein.
(c) Be responsible for providing and maintaining true, accurate, complete, and current information about Yourself and Your Credit Card with Ditech to enable Ditech to verify your identity, Account, and billing information, as well as to facilitate the Service appropriately.
(d) Be responsible for establishing an automatic billing payment method through use of a Credit Card in connection with Your Service Account, unless otherwise agreed to by Ditech in writing. You further agree that that, notwithstanding the foregoing requirement and irrespective of the automatic bill pay method established in connection with Your Service Account, You shall continue to be liable for payment for the Service to the extent that Ditech fails to timely receive payment from Your Credit Card issuer or bank.
(e) Be responsible for any and all third party charges, materials, equipment, and labor necessary to connect Your network(s) to the Service , including, where necessary, Ditech’s systems used in connection with the Service;
(f) Be responsible for payment of the total, undisputed, invoiced amount from Ditech and, irrespective of the reason given by You for any non-payment, including claims of fraud, theft, or the like, unless the reason for non-payment is due to Ditech’s failure to deliver the Service;
(g) Be responsible for payment of all local, county, state, or federal taxes or other applicable charges, including any late payment service charge, if any (individually and collectively“ “Additional Charges”); and
(h) Be responsible for not using the Service in any manner not otherwise permitted, including applicable Service restrictions regarding Your Account as set forth herein or other documents which are incorporated herein by reference.
(i) Be responsible for Your network operator’s or carrier’s normal, messaging, data and other rates and fees that apply to the communications services You use in utilizing the Service.
5. Prices and Payment
(a) Your monthly subscription fees for the Service (“Fees”) shall be as set forth in Ditech’s Final Quotation. (The “Pricing Terms” section (only) of such Final Quotation is hereby incorporated herein and made a part of this Agreement). You will pay Ditech such monthly Service Fees (“Fees”) and such Additional Charges as are required in connection with Your Account, which amount will be due on the first day of each month (“Due Date”) of Service.
(b) All payments must be made in U.S. currency. Ditech will charge Your Credit Card in paying for Your subscription of the Service and any such related transactions in connection with Your payment obligation. You acknowledge and agree that Your Credit Card issuer’s agreement with You governs Your use of the designated Credit Card for Your Account with Ditech, and You must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder. You are responsible for overdraft fees and all other fees charged by Your Credit Card issuer.
(c) Ditech shall submit, on a monthly basis, charges to Your Credit Card issuer for payment of the monthly Service Fee plus any applicable Additional Charges, the aggregate amount of which shall be charged on the Due Date, unless otherwise changed by Ditech at its sole discretion. Notwithstanding the preceding, You agree that, Ditech, at its sole discretion, may choose to forego submitting applicable monthly billing amounts to Your Credit Card incurred for any given one or more monthly billing periods and, instead, aggregate such Service Fees and any applicable Additional Charges incurred during period, provided such amounts have not yet been previously paid by You or Your Credit Card issuer. You acknowledge that, among other reasons, Ditech may exercise the foregoing right to avoid submitting nominal charges to Your Credit Card issuer.
(d) You acknowledge and agree that each time You use the Service (or allow or cause the Service to be used by others), You are agreeing and re-affirming that Ditech is automatically authorized to charge Your Credit Card during each billing period, in each case, without further or additional authorization from You. Until You notify or instruct Ditech otherwise in writing, Ditech will continue to use such Credit Card to automatically charge or deduct any payments due to Ditech. In the case where You request a different payment method (and such alternative method is agreed to by Ditech in writing), You agree that any such notification from You will not affect any charges that may have already been submitted by Ditech for payment prior to Ditech’s receipt of Your notification or instruction, or affect any charges that have already been processed before Ditech has had reasonable time to act in accordance with Your notification or instruction.
(e) NOTHWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND THE ESTABLISHMENT OF AN AUTOMATIC BILL PAYMENT METHOD BY YOU WITH DITECH OR YOUR AUTHORIZATION FOR DITECH TO USE ANY PARTICULAR DESIGNATED CREDIT CARD (AS DEFINED HEREIN) FOR PAYMENT OF ANY SERVICE FEES AND/OR ADDITIONAL CHARGES IN CONNECTION WITH YOUR ACCOUNT, YOU ARE SOLELY RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL SERVICE FEES AND RELATED ADDITIONAL CHARGES IN CONNECTION WITH YOUR ACCOUNT.
(f) If the Credit Card payment is not received by Ditech from the Credit Card issuer (or its agent or affiliate) for whatever reason, You agree to pay all amounts due upon demand by Ditech. Any sum not received by Ditech shall be subject to a late payment service charge of one and a half percent (1½%) per month, or the maximum charge permitted by law, whichever is greater.
(g) You agree to promptly notify Ditech of any changes to your billing account information or with the designated Credit Card, including any changes to your Credit Card account number or expiration date thereof, your billing address or any information reasonably necessary to timely invoice and charge You for Your subscription of the Service.
(h) If you have any questions regarding any charges that have been applied to your Service account, You must contact Ditech within thirty (30) days of the charge date. You agree that billing disputes do not constitute ground for delay in payment. Any request from You for a billing adjustment must be made in good faith and in writing no later than thirty (30) days after the invoice date for the affected billing period, otherwise, such ability to dispute in connection therewith is waived by You. Any billing adjustment request shall include detailed documentation to establish the basis for any adjustment. Ditech may make billing adjustments for Services for a period of one hundred twenty (120) calendar days after the Due Date of the affected billing period.
(i) Any amounts that are determined to be in error, or any credits to which Ditech agrees, will be credited against the next month’s invoice following such determination. Such request for adjustment shall not be cause for delay in payment of the undisputed balance due.
(j) If Your Service Account is established to have sub-accounts (i.e., for use by additional users), the first payment for any such additional sub-accounts may be prorated to coincide with the monthly anniversary Due Date of your main Service Account (i.e., first Service account number activated by the parties.)
6. Service Level Agreement.
In the event of any mutually confirmed “Service Failure,” as that term is referred in the attached SLA (“Exhibit A”), which Exhibit A is incorporated herein and made a part hereof, You may be entitled to such credits as set forth in Exhibit A pursuant to the terms therein. Credits issued pursuant to the SLA apply to outstanding or future payments only and are forfeited in accordance with the terms of Exhibit A. Ditech is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation termination of this Agreement. Credits issued pursuant to the SLA are Your sole remedy for the Service Failure in question.
7. Materials, Software, & IP.
(a) Materials. You recognize and agree that: (i) the Materials are the property of Ditech or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) You do not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Your use of the Service.
(b) IP in General. Ditech and its licensors retain all right, title, and interest in and to the Service, including without limitation all software and technology used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant You any intellectual property rights in or to the Service or any of its components.
(c) Restriction. You may not reproduce, duplicate, copy, sell, resell, or exploit for any commercial purposes, any portion of the Service.
(d) API License: Subject to the terms and conditions of Agreement, where applicable and deemed necessary by Ditech, Ditech will deliver to you an application interface (“API”) so that You can use the Service. In such instance, Ditech hereby grants you a non-exclusive, non-transferable license to use Ditech’s API solely for your use in utilizing the Service. The terms of the license will also govern any upgrades provided by Ditech that replace and/or supplement the original API, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern. You agree not to do, or authorize or permit any third party to do, (i) use the API except as set forth herein, (ii) copy (except as expressly permitted by this Agreement), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the API, any updates, or any part thereof (except as and only to the extent any foregoing restrictions are prohibited by applicable law); (iii) modify, alter, or create any derivative works of the API; or (iv) remove, alter, or obscure any copyright, trademark or other proprietary rights notice on or in the API. Ditech reserves all rights not expressly granted to You herein.
(a) Right to Modify or Discontinue the Service: Ditech reserves the right, at any time, to modify or discontinue, temporarily (or where it deems reasonably necessary, permanently), any or all parts or features of the Service with or without reasonable notice.
9. Each Party’s Warranties.
(a) Your Identity. You warrant : (i) that if You are entering into this Agreement either as an individual or as a Representative of an Entity, You have accurately identified Yourself (and the respective legal entity for whose behalf You are representing, as the case may be) through Your Account and will maintain the accuracy of such identification; (ii) that, in the case of being a Representative of a legal entity, such legal entity is a corporation or other business entity authorized to do business pursuant to applicable law, and (iii) that You are an individual 18 years or older.
(b) Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement.
(c) Inability to Transcribe. You acknowledge and agree that some messages cannot be transcribed due to various factors, including poor dictation, noisy environment, poor phone connection or drop-outs, language enunciation, or poor audio quality.
(d) Disclaimers. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS SECTION 9, DITECH MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO ANY SERVICES OR PRODUCTS PROVIDED HEREIN, AND DITECH EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT AND BREACH OF WARRANTY. YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION 9. THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE. DITECH DOES NOT WARRANT THAT THE SERVICE WILL PERFORM WITHOUT ERROR OR INTERRUPTION. DITECH EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE VOICE-TO-TEXT TRANSLATION AND TRANSCRIPTION OF MESSAGES IS 100% ACCURATE. YOU ACKNOWLEDGE AND AGREE THAT VOICE-TO-TEXT TRANSCRIPTION AND TRANSLATION ARE INHERENTLY IMPERFECT AND AS A RESULT, MESSAGES MAY CONTAIN INACCURACIES, TYPOGRAPHIC ERRORS AND/OR MAY CONTAIN CONTENT THAT IS INCORRECT, CONFUSING, OR THAT COULD REASONABLY BE BELIEVED TO BE OFFENSIVE OR OBSCENE. DITECH SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE CONDUCT OF ANY USER OR ANY CONTENT SENT OR PROVIDED AS A RESULT OF THE DITECH SERVICES, INCLUDING THOSE THAT YOU MAY ENCOUNTER AS A RESULT OF USING THE SERVICE.
10. Limitation of Liability.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, DITECH SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY LOST PROFITS, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM YOUR USE OF THE SERVICE, EVEN IF DITECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL DITECH’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE AMOUNTS PAID BY YOU TO DITECH DURING THE SIX (6) MONTHS PRECEDING THE MOST RECENT EVENT GIVING RISE TO SUCH LIABILITY, REGARDLESS OF THE CAUSE OR FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF DITECH IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 10, DITECH’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
11. Confidential Information.
All confidential information related to the Service hereunder, including but not limited to, any software, releases, Customer Data, and/or non-public information regarding a party or the business of a party, provided by the disclosing party to the receiving party where such information is marked or otherwise communicated as being “proprietary” or “confidential” constitutes the confidential and proprietary information (“Confidential Information”) of the disclosing party. The receiving party shall retain such Confidential Information in strict confidence and not disclose it to any third party (except as authorized by this Agreement, including Section 12(c) below without the disclosing party’s written consent. Each party agrees to use Confidential Information only for the purposes of this Agreement or as otherwise expressly permitted by this Agreement. Notwithstanding the preceding, You expressly agree that Ditech may disclose Your Confidential Information to its affiliates, suppliers, and contractors for purposes of facilitating the Service and parts thereof. Notwithstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information which: (i) is already known to the receiving party; (ii) becomes publicly available without fault of the receiving party; (iii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure; (iv) is shown by written record to be developed independently by either party without use of the other party’s proprietary information; (v) is shown by written record to have been known or available to either party without restriction as to disclosure at the time of either party’s receipt of such information; or (vi) is required to be disclosed by law. The parties also agree and stipulate that the potential damage from a breach of this provision would result in irreparable injury and that monetary damages would be difficult or impossible to calculate and would not provide full relief to the aggrieved party. Therefore, both parties agree that the aggrieved party may apply to a court of competent jurisdiction in the State of California, County of Santa Clara, for injunctive relief, including the issuance of mandatory permanent injunction.
12. Data Management.
(a) Audio Recordings. Ditech understands and agrees that the audio recordings or audio files distributed to it under this Agreement may contain sensitive, private, Confidential Information belonging to You. In accordance with Section 11 (Confidentiality), Ditech agrees that it will not disclose any of Your audio recordings, information contained therein, or transcriptions thereof, to any third party other than Ditech’s employees, contractors, and authorized suppliers who have a direct need to know for the purposes of this Agreement and the Service provided hereunder. You agree that Ditech has the right to retain Your audio recordings or audio files and associated transcribed data indefinitely for troubleshooting, product development, and Service optimization purposes only.
(b) Access, Use, & Legal Compulsion. Ditech shall not collect any personally identifying information from You, unless necessary in connection with facilitating the Service, including the billing, support, maintenance, and optimization thereof. Ditech shall use commercially reasonable measures, no less stringent than those it uses to protect its own confidential information to protect and keep secure the content of Your voicemails/audio files and e-mails/transcription texts, whether transcribed or not, and any personally identifying information about You contained within such audio files/voicemails or emails/transcription texts while the audio files/voicemails, transcription texts/e-mails or information is in the control or possession of Ditech or its suppliers. If Ditech becomes aware of a security breach affecting the aforementioned audio files/voicemails, e-mails/transcription texts or information, Ditech will notify You in writing and will take all reasonably necessary actions to ensure that the breach is contained and the damages are mitigated. Ditech shall provide You with a written detailed report explaining how the breach occurred and Ditech will provide You with a written plan to prevent any similar security breach in the future.
(c) Data Transmission. You hereby expressly consent and agree that in connection with facilitating the Service, Your Confidential Information and Customer Data, may be made available to Ditech, its employees, its suppliers, and/or contractors, who may be located outside your country and elsewhere, including countries or jurisdictions that may not offer an equivalent level of protection to that applicable in your own country. You hereby confirm You (and any users of Your account, including users of sub-accounts, as the case may be) have been made aware of the preceding and hereby expressly consent to Ditech storing, transmitting, and transferring (where necessary) and using Your Confidential Information and Customer Data in connection with facilitating the Service, including for purposes of billing, support, maintenance, and optimization thereof.
You agree to indemnify and hold Ditech, its subsidiaries, affiliates, officers, agents, and other suppliers and their employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of or relating to: (a) Your use of the Service, or (b) arising from Your breach of this Agreement.
14. Term & Termination.
(a) Term. Unless earlier terminated as provided herein, this Agreement will continue for a period of one (1) year following the Effective Date (“Initial Term”). Thereafter, this Agreement will automatically renew for subsequent one (1) month periods (“Renewal Term(s)”), unless either party notifies the other, in writing, of its intent not to renew at least thirty (30) days before the beginning of the respective Renewal Term.
(b) Termination for Cause. Either party may terminate this Agreement by written notice if the other party (i) fails to pay any amount due under this Agreement within five (5) business days after written notice of such non payment, or (ii) commits a material non-monetary breach of this Agreement, and such breach, if capable of being cured, is not cured within thirty (30) days of a written notice of termination.
(c) Effects of Termination. Upon termination of the Agreement hereunder, You agree to promptly discontinue use of all Services and erase or destroy all copies of Ditech Confidential Information in Your possession or control. The following provisions will survive termination of this Agreement: (i) any obligation to pay for Service rendered before termination; (ii) Sections 7, 9(c), 10, 11, 12, 13, and 14 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
(a) Notices. Ditech may send notices pursuant to this Agreement to Your contact details and address listed in Your Account. You may send notices pursuant to this Agreement to the address set forth below. Any notice required by a party to the other shall be in writing and shall be delivered by hand, facsimile, nationally recognized courier by overnight delivery or by certified or registered address below (or such other address as may from time to time be designated in writing). Any such notice from one party to another shall be deemed to have been given, (i) if delivered by hand, upon receipt with proof of delivery, (ii) if by mail, three (3) days after deposit in the United States mail with postage prepaid and proof of delivery to the respective parties at the addresses set forth below or, in the case of a nationally recognized courier, upon receipt with proof of successful delivery (iii) if by facsimile, upon receipt, which receipt shall be established by the delivery receipt printed from the facsimile machine used by the transmitting party to send notice.
Notices to Ditech shall be to:
Ditech Networks, Inc.
3099 North First Street
San Jose, CA, 95134
(c) Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
(d) No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
(e) Force Majeure. To the extent caused by force majeure other than with respect to Your payment obligation, no delay, failure, or default will constitute a breach of this Agreement.
(f) Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
(g) Choice of Law & Jurisdiction. This Agreement shall be governed by the laws of the State of California and the United States, without regard to conflict of laws provisions that would require the application of the laws of any other jurisdiction. The parties hereto agree to submit to the exclusive jurisdiction of the state and federal courts within the State of California. The U.N. Conventions of Contracts for the International Sales of Goods shall not apply.
(h) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
(i) Certain Notices. Pursuant to 47 U.S.C. Section 230(d), Ditech hereby notifies You that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information regarding providers of such protections may be found on the Internet by searching “parental control protection” or similar terms.
(k) Interpretation/English Language. The divisions and headings in this Agreement have been included for convenience only and will not affect its construction or interpretation. This Agreement is in the English language only, which language shall be controlling in all respect. All communications and notices hereunder shall be in the English language. You waive any right it may have under the law of Your country to have this Agreement written in the language of Your country or in the language of any country in which the Services, any products, or any services are provided. As used herein, “including” means “including but not limited to.” The headings of sections to this Agreement are for convenience and will not be used in interpreting this Agreement.
(l) Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
Monthly Service Level Agreement
Ditech shall provide transcription services as outlined in the Agreement twenty-four (24) hours a day, every day of the year (excluding and subject to scheduled maintenance, in a manner consistent with industry standards).
Additionally, Ditech shall operate according to the following performance targets, as measured and applied at Ditech’s IP address where transcription files are received via Ditech’s interface and subsequently dispatched to each separate originating message source identified in the transcription file:
1. Services Up Time
Services Up Time measures the percentage of time that access to the Services are available. Ditech targets to maintain a 99.5% Services Up Time, measured monthly.
Services Up Time shall be calculated as follows:
Services Up Time = (Total Available Time – Outage Time)/Total Available Time
Total Available Time equals the total clock time for which the Services are potentially available during a calendar month, less any actual time for mutually agreed upon Services outages or interruptions caused by Your operations.
The Services Up Time does not apply to any unavailability, suspension, or termination of Services, or any Services’ performance issues: (i) that result from Your scheduled maintenance service suspensions (ii) that result from Ditech’s scheduled maintenance service suspensions but only if You agreed in advance to such scheduled maintenance service suspension; (iii) caused by factors outside of Ditech’s reasonable control, including any force majeure event or Internet access or related problems; (iv) that result from any actions or inactions by You or any third party; (v) that result from Your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Ditech’s direct control); or (vi) arising from our suspension and termination of Your right to use the Services in accordance with the Agreement.
Service Failure due to Uptime Failure: If Ditech fails to meet the Transcription Services Up Time service level requirement, You shall be entitled to, for each 0.5% below the Transcription Services Up Time, a one percent (1%) credit against the monthly billing Service Fee (only) for the respective billing period, up to a maximum of ten percent (10%) of the monthly Service Fee for that billing period.
You Must Request Credit. In order to receive any of the Credits described above, You must notify Ditech within thirty days from the beginning of the calendar month following the month of the incident Failure to comply with this requirement will forfeit Your right to receive a Credit.
2. Ramp up / Ramp down
(a) SLA shall not be applicable if you ramp up/down traffic more than ten percent (10%) +/- per week from Your Account or sub-account’s, as the case may be, average traffic of last one month on any Service involving human interaction in the message review or transcription process.
(b) SLA shall not be applicable if you ramp up/down traffic more than thirty percent (30%) +/- per week from the average traffic Your respective Account or sub-account, as the case may be) of last one month on any Service involving 100% automated interaction in the message review or transcription process.
3. Use of SMS
(a) When the transcription of Your audio file is sent back to You via SMS, You may receive multiple SMS messages for a given audio file based on its original length and the maximum number of characters per SMS message set by Your own SMS provider. The character limits per SMS message is determined by Your carrier and not by Ditech.