General. This Agreement establishes the terms and conditions under which Licensee shall use, and Sprex shall provide, the Lip Synch Machine Service (henceforth, "LSM Service").
The LSM Service may be used only by a legitimate Licensee, under the terms and conditions of this Agreement.
Difference between demonstration accounts and user accounts. If this Agreement is entered into in connection with registration for a demonstration account, then:
Validity and Authority. Whereas this Agreement is included by reference in the electronic application form used to establish a demonstration or regular user account, as follows (HTML source text is substantially given here):
I have read, understand, and accept the terms of the (A href="lsm.license.php">LSM service agreement(/A>, incorporated herein by reference, on behalf of myself and the payer.(BR> (INPUT TYPE="radio" NAME="accept" VALUE="yes">Yes (INPUT CHECKED TYPE="radio" NAME="accept" VALUE="no">NoAnd, whereas the "No" radio button is checked by default, so that the submitting individual must explicitly change the checked radio button selection from "No" to "Yes", indicating acceptance;
Therefore, electronic submission of such application, on which is indicated acceptance of this Agreement and, if applicable, authority to accept this agreement on behalf of the institution named in the registration application, shall be legally valid and binding on the individual and the named institution, as if this Agreement were printed on paper and signed by the submitting individual. Electronic records of such submission shall be sufficient evidence of the execution of this Agreement. The electronic form of this Agreement shall be legally valid and the same as if printed on paper.
A user falsely submitting an application in another's name or incurring charges on behalf of an institution which does not authorize this usage shall be personally liable for the charges incurred in addition to all legal remedies.
The Parties hereto represent and warrant that they possess the full and complete authority to covenant and agree as provided in this Agreement. If any Party hereto is not a natural person, the submitting individual or signatory for any such non-natural person represents and warrants that he or she possesses the authority and has been authorized by the entity to enter into this Agreement on the entity's behalf. No Party to this Agreement will be required to determine the authority of the individual signing this Agreement to make any commitment or undertaking on behalf of such entity.
Anyone who operates the LSM Service, by so doing, expresses acknowledgement of and agreement to the terms of this Agreement.
Licensee expressly consents to the monitoring and recording of all activity.
Grant of LSM Service License and Permitted Uses. In consideration of Licensee's timely payment of LSM Service fees, if applicable, Sprex grants Licensee a non-transferable and non-exclusive right to use the licensed LSM Service for Licensee's internal business purposes.
Copies of electronic text files which are the output of the LSM Service's operation, whether delivered by electronic mail, electronic file transfer (ftp), or other means, shall, upon transfer to Licensee, become and remain the exclusive property of Licensee.
Licensee represents to Sprex that when Licensee transfers audio recordings and text transcriptions thereof (collectively referred to hereafter as "Data") to the LSM Service for processing, Licensee has the right to do so, and that Sprex is authorized under applicable law to utilize the Data for the purpose of carrying out the LSM Service,
Further Licensee represents that Sprex is authorized under applicable law to utilize the Data for research and development purposes (including scientific and educational purposes) directly related to improving the LSM Service and the technology that it is based on, but not for other any other use.
It is expressly understood and agreed that the software, documentation, HTML pages, interface, and all intellectual property rights embodied therein (collectively, "Software") are the confidential property of Sprex and its suppliers, that no ownership interest in the LSM Service or the software it is based on is transferred to Licensee hereunder, but remains exclusively with Sprex and its suppliers, that the Software and LSM Service are valuable trade secrets of Sprex and its suppliers, and that the Software and the LSM Service are also protected by United States Copyright Law and International Treaty provisions. Any unlicensed use, reproduction, or transfer of the Software or the LSM Service, in any medium, or incorporation of the Software or the LSM Service into any system or publication, is strictly prohibited. Licensee may not not rent, lease, or sublicense the Software or LSM Service. Licensee agrees not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. Licensee will not use any copies of documentation and WWW interface pages for commercial purposes.
Except as stated above, this Agreement does not grant Licensee any intellectual property rights in the Software.
Credits. Licensee shall display an acknowledgement of its use of the LSM Service in any credits of any audio/visual media works which make use of the output of the LSM Service. The acknowledgement shall include the following: a) either "Track Reading" or "Lip Synch" or "Lip Synching", and b) "www.SPREX.com". The acknowledgement shall represent Sprex and the LSM service in a respectful and positive manner, and be equal in prominence to other acknowledgements of technical contributions to the work.
Non-disclosure. Sprex regards the LSM Service and technical information supplied to Licensee under this Agreement to be of a proprietary and confidential nature. Licensee shall use the same degree of care to avoid unauthorised disclosure of such confidential information as Licensee employs with respect to its own products and information of confidential nature that it does not desire to have disclosed, but in no event less than reasonable care. This obligation of non-disclosure of confidential information shall not apply to any information previously known to Licensee or generally available to the public or that corresponds in substance to information furnished to Licensee by any third party having a bona fide right to do so or is developed independently by Licensee or is disclosed by Sprex to a third party without restriction.
Trademarks. "Sprex", the Sprex logo, "Lip-Synch Machine", "LSM", and "www.SPREX.com" are trade and/or service marks of Sprex, Inc., which may be registered in certain jurisdictions. Licensee may use trademarks only in giving credit to the LSM Service for the use of its output in media or in identifying printed output produced by the Software, in accordance with accepted trademark practice, including identification of trademark owner's name. Such use of any trademark does not give Licensee any rights of ownership in that trademark.
No Warranty. The LSM Service is provided to you AS IS. SPREX AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE USE, PERFORMANCE, OR RESULTS YOU MAY OBTAIN BY USING THE LSM SERVICE OR THE SOFTWARE. THEREFORE SPREX AND ITS SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTEES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NOR DOES SPREX WARRANT THAT THE FUNCTIONS OF THIS SOFTWARE WILL BE ERROR FREE, NOR THAT THE DOCUMENTATION WILL BE FREE OF DEFECTS.
Because the LSM Service uses statistical methods to model speech, because speech is a random process, and because these methods depend on the type of speech audio it was trained on, the performance of the LSM Service on any given speech segment has a significant degree of unpredictability, and a significant likelihood of being incorrect -- a likelihood which rapidly increases as the statistical characteristics of the speech segment are different from the statistical models in the LSM Service; indeed as the number of segments processed increases, the likelihood of errors occurring will approach 100%. THEREFORE SPREX AND ITS SUPPLIERS DISCLAIM RESPONSIBILITY, SPECIFICALLY, BUT WITHOUT LIMITATION, FOR ANY AND ALL ERRORS IN THE OUTPUT OF THE LSM SERVICE; LICENSEE IS SOLELY RESPONSIBLE FOR SATISFACTORILY CHECKING, CORRECTING, AND USING THE OUTPUT OF THE LSM SERVICE. The user of the LSM Service must ascertain, by means of ongoing practical demonstrations using the user's own speech audio data (especially when the speaker or recording characteristics are changed), whether its performance is appropriate to the user's needs. Initial as well as ongoing use of the LSM Service assumes and implies the user's ongoing assessment that its output is satisfactory for the user's own purposes.
IN NO EVENT WILL SPREX OR ITS SUPPLIERS BE LIABLE TO LICENSEE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A SPREX REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you.
In no event shall Sprex' liability to Licensee, whether in contract, tort (including negligence), or otherwise, exceed the License fee charged by Sprex and paid by Licensee for the particular cases on which liability is determined. If liability is demonstrated in one case, that will not imply like liability in any other case, and fees paid for such cases for which liability is not demonstrated are not included in this maximum liability amount.
Indemnification. Sprex shall indemnify Licensee against any third party claim for violation of intellectual or other property rights specifically derived from use of the LSM Service.
Arbitration. Any controversy or claim arising out of this Agreement, the interpretation of any of the provisions hereof, or the action, inaction, or breach of any Party hereunder shall be settled by arbitration in Seattle, Washington. Any award or decision obtained from any such arbitration proceeding shall be final and binding on the Parties, and judgement upon any award thus obtained may be entered in any court having jurisdiction thereof. There shall be one arbitrator, mutually agreeable to the Parties, or if the Parties cannot agree on an arbitrator, then an arbitrator shall be appointed by a court of competent jurisdiction. The losing Party shall pay all the expenses of the arbitration. No action at law or in equity based upon any claim arising out of or related to this Agreement shall be instituted in any court by any Party except: (a) an action to compel arbitration pursuant to this Agreement, or (b) an action to enforce an award obtained in an arbitration proceeding in accordance with this Agreement.
Attorney's Fees. In the event that any dispute between the Parties should result in litigation or arbitration, the prevailing Party in such dispute shall be entitled to recover from the other Party all reasonable fees, costs, and expenses of enforcing any right of the prevailing Party, including, without limitation, reasonable attorney's fees, expert witness fees, and expenses. Attorney's fees and costs include without limitation costs for such items for any appeals. This paragraph shall remain independent from any judgement entered to enforce its terms, shall not merge therewith, and shall entitle the prevailing Party to attorney's fees and costs incurred in connection with post-judgement collection and enforcement efforts.
Force Majeure. Any Party shall be released from its obligations under this Agreement in the event that an act of God, war, riot, fire, strike or other labor dispute, epidemic, or other causes beyond the control of that Party, render performance by that Party impossible.
Notices. Any notice or other document to be given or to be served upon any Party hereto in connection with this Agreement must be in writing (which may include facsimile and electronic mail) and will be deemed to have been given and received when delivered to Sprex, Inc., at 1210 NE 124th St., Seattle, WA 98125 or to the Licensee's address specified in the electronic registration submission form, in which this Agreement is included by reference; and if no such address is specified, to the last known address of the Party to recieve the notice. Any Party may, at any time by giving five (5) days prior written notice to the other Parties, designate any other address in substitution of the foregoing address to which such notice wil be given.
Notice to Government End Users. If the LSM Service is used under the terms of a: GSA contract- Use, reproduction or disclosure is subject to the restrictions set forth in the applicable ADP Schedule contract; DoD contract- Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of 252.227-7013; Civilian agency contract- Use, reproduction, or disclosure is subject to 52.227-19 (a) through (d) and restrictions set forth in the accompanying end user agreement.
Termination. Each party shall have the right to terminate this Agreement by written notice to the other if a party has materially breached any obligation herein and such breach remains uncured for a period of thirty (30) days after written notice of such breach is sent to the other party. Specifically, in the event of a breach of any obligation herein by Licensee, the right granted by Sprex to Licensee to use the licensed LSM Service shall immediately terminate. However, all other rights and obligations under this Agreement shall continue to bind the parties.
Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their heirs, successors and assigns.
Any violation or threatened violation of this Agreement by one party will cause irreparable injury to the other party, entitling the injured party to injunctive relief as well as all legal remedies.
This Agreement will be governed by the laws of the State of Washington, without reference to conflict of laws principles.
If any part of this Agreement or its application to any person or circumstance shall be held invalid for any reason, the remainder of this Agreement, or that part's application to other persons or circumstances, shall be unaffected by such holding. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof.
This Agreement may not be amended or any obligation waived, except by a writing signed by both parties hereto.