Last Updated: 11/15/2011
Table of Contents
- Custom Recording Service
- Intellectual Property
- Waiver and Indemnity
- Limited Warranty
- Limitation of Liability
- Third Party Software and Websites
- Use Outside the United States
- Safety Warning
- Arbitration and Dispute Resolution
SpeakinMotion, LLC ("SpeakinMotion" or "We") operates Speakinmotion.com (the "Site"). The services offered by SpeakinMotion include (but are not limited to) the Site, materials and tools related to speech training and rehabilitation, custom recording services (the "Custom Recording Service") and supporting educational materials (collectively the "SpeakinMotion Services"). The SpeakinMotion Services are hosted in the United States.
You are only authorized to use the SpeakinMotion Services if you agree to abide by all applicable laws and the terms of this Agreement. If you do not agree with these terms, your sole recourse is not to access the SpeakinMotion Services. You acknowledge that SpeakinMotion reserves the right to charge for any portion of the SpeakinMotion Services and to change its fees (if any) from time to time in its discretion. SpeakinMotion may, in its sole discretion, deny, restrict, suspend, or terminate your access to all or any part of the SpeakinMotion Services at any time if SpeakinMotion believes that you have violated this Agreement.
Use of the SpeakinMotion Services is void where prohibited. By using the SpeakinMotion services, you represent and warrant that (a) all registration information you submit as described in the Membership section, is truthful and accurate; (b) you are 18 years of age or older; and (c) your use of the SpeakinMotion Services does not violate and applicable law or regulation.
Membership is required to access many portions of the SpeakinMotion services, including but not limited to the Custom Recording Service. When you register to become a Member, you must establish an account by providing a valid email address and password. To ensure the validity of your email address and to help ensure its acceptance of SpeakinMotion email, you must confirm the email address before accessing certain components of the SpeakinMotion Services. You agree that after this confirmation process, SpeakinMotion is not responsible for any email not received by you for any reason, including but not limited to spam filters, firewalls, insufficient capacity or change of email address.
You are solely responsible for maintaining the confidentiality and security of your account and for all activities that occur on or in association with your account. You agree to notify SpeakinMotion immediately if you suspect any unauthorized use of your account, any security breach of your account or access to your password. SpeakinMotion shall not be responsible for any damages or liability arising out of the unauthorized use of your account.
4. Custom Recording Service
4.1 General. SpeakinMotion's Custom Recording Service is an "AS IS" service. The Custom Recording Service provides Members the ability to submit information to SpeakinMotion for the purpose of recording and producing a customized video file (the "VAST™ Video"). This information is collectively referred to as the "Submitted Material". A Member may request multiple VAST™ Videos as part of a single order. Each VAST™ Video request must contain its own Submitted Material and will result in the creation of a single VAST™ Video. The Submitted Material includes but is not limited to, a video title, an explicit transcript upon which the VAST™ Videos will be recorded (the "Script"), preferences such as speeds and types of video files produced and Special Instructions for SpeakinMotion's use during the recording (the "Special Instructions"), such as pronunciations of uncommon words. All Submitted Material that We require will be noted on our Custom Recording Service request page(s).
The VAST™ Video will contain close-up video of a trained model's mouth (along with synchronized audio) as the Script is spoken. SpeakinMotion has established screening mechanisms and training protocols to optimize the articulation, mouth movements, rate and rhythm of the model's speech in a fashion that We have found to best help speech-impaired individuals produce speech themselves. All VAST™ Videos will be delivered in a .mp4 movie container format with the video track encoded using a standard H.264 algorithm and the audio track encoded using the AAC encoding format.
4.2 Video Production Disclaimers. You agree that your use of, or inability to use any VAST™ Videos produced by SpeakinMotion is at your sole risk. While we will do our best to adhere to any Special Instructions provided at the time of your request, SpeakinMotion is not responsible for unsuccessful presentations of the Script or for your dissatisfaction with the articulation or any other facet of the model's performance of the Script. SpeakinMotion has decided on parameters and margins of error relating to various elements in the recording and production of the VAST™ Videos. We will adhere to these parameters which include but are not limited to, the zoom level, centering of the model's mouth and the amount or time a portion of the mouth's model is out of frame. SpeakinMotion does not guarantee exact speed, rate, or rhythm, but has taken steps within our process to be as accurate as possible in conforming to our established guidelines. SpeakinMotion doesn't guarantee exact pronunciation, and is not obligated to redo a VAST™ Video due to mispronunciation or immaterial changes or omissions in the Submitted Material. SpeakinMotion will only be responsible to redo a VAST™ Video if the errors result in the video being unintelligible. SpeakinMotion may make manual edits to any VAST™ Video to remedy any issue and does not guarantee a video shot from a continuous stream. SpeakinMotion has multiple script readers/mouth models and does not make any guarantee for specific models or provide the option of requesting specific models as part of the Submitted Material. Decisions in regard to the production of VAST™ Videos, including use of model, are at the sole discretion of SpeakinMotion. You understand that the VAST™ Videos produced may not be playable by all devices or video players, but only those that conform to the encoding parameters stated above.
4.3 Text Subtitles. As part of the Submitted Material, We offer the option to include Text Subtitles with a VAST™ Video as an extra feature. Text Subtitles allow for the coordinated presentation of the Script text with the audio/video performance. While We have taken steps within our operation to optimize the Text Subtitle production, SpeakinMotion does not guarantee exact accuracy of the timing of the text (including the synchronization with the audio/video performance) or the nature by which the Script is parsed and presented in phrase segments. SpeakinMotion will attempt to use the exact Script submitted as the source for the Text Subtitles and is not obligated to redo a VAST™ Video due to immaterial spelling or grammatical errors in the text. The Text Subtitles will be built using a standard .srt format and incorporated into the VAST™ Video file as a foreign language subtitle track. The subtitle track is recognizable by most recent versions of the QuickTime player and the standard iOS video player. You understand that the subtitle track is not guaranteed to work with all devices or video players.
4.4 Other Graphics. Any other text title screens or video graphics can be requested in the Special Instructions for an additional charge. The acceptance and costs of any such requests are at SpeakinMotion's discretion.
4.5 Content Submission. You agree that the Submitted Materials shall be your sole responsibility, shall not infringe or violate the rights, including but not limited to copyright interests or other intellectual property rights of any other party, violate any laws, contribute to or encourage infringing the rights of others or are otherwise unlawful conduct. You also agree that you have obtained all necessary rights and licenses to the Submitted Material. You hereby grant SpeakinMotion a worldwide, royalty-free, nonexpiring, nonexclusive license to use such Submitted Material as part of other SpeakinMotion Services (including future services not yet in effect), without any compensation or obligation to you.
4.6 Personally Identifiable Information. Personally Identifiable Information refers to information contained in the Script that can be used to uniquely identify, contact, or locate a single person or can be used with other sources to uniquely identify a single individual. Examples include but are not limited to a person's name, social security number, date and place of birth, mailing address, email address, phone numbers, mother's maiden name, etc. As part of the Submitted Material, a check box is provided to indicate if Personally Identifiable Information is present in the Script. While SpeakinMotion will make every attempt to monitor Scripts for Personally Identifiable Information, you agree to mark this check box when Personally Identifiable Information is present in your Script. When this check box is marked and when Personally Identifiable Information is actually present in the Script, SpeakinMotion will keep all Submitted Material associated with the Script and the resulting VAST™ Video private. Regardless of whether this check box is marked, SpeakinMotion shall not be responsible for any damages or liability resulting from the disclosure of Personally Identifiable Information present in the Script.
4.7 Objectionable Material. SpeakinMotion reserves the right to refuse any Submitted Material that we may deem to be offensive, indecent, or objectionable, regardless of whether such content is deemed appropriate to you. SpeakinMotion will notify you if certain parts of the Submitted Material were rejected and may or may not give you the option to submit changes to the Submitted Material in order for it to be accepted. In the event of a rejected request, SpeakinMotion shall issue a full refund. Continued submissions of material deemed inappropriate and rejected can result in termination of your account.
4.8 Delivery/Download. SpeakinMotion will deliver all VAST™ Videos via electronic download. You will be notified by email when your script is ready with instructions on how to download your VAST™ Video file. SpeakinMotion does not guarantee the delivery or availability of your download within the stated estimated timeframe. You agree SpeakinMotion will not be responsible for any damages or loss incurred due to the late delivery of any VAST™ Videos. If a VAST™ Video is not delivered or not available for download within 30 business days from the acceptance of payment, you may cancel your order and be fully reimbursed for the associated request. If you erase or lose your VAST™ Video after 30 days from your original download, you may be subject to a service charge for delivering the VAST™ Video again. SpeakinMotion will make reasonable attempts to contact you to download your completed VAST™ Video. SpeakinMotion does not guarantee your VAST™ Video will still be available after 120 days from the date of the original download or 120 days from the date SpeakinMotion made it available for download.
As part of the Submitted Material, we may offer various options relating to the size, format and speed of the resulting VAST™ Video. After the original request has been processed and made available for download, any future processing of the same VAST™ Video due to requested changes in the size(s), format(s) or speed(s) or requests to create a different video format not typically offered by SpeakinMotion is at SpeakinMotion's discretion and subject to a service charge. Any requested alterations or edits that require additional video footage to modify a delivered VAST™ Video will be charged at the current rate plus an additional service charge for the edit and is at SpeakinMotion's sole discretion.
4.9 Usage Regulations. You agree that each VAST™ Videos produced from your Submitted Material is for the sole purpose of your personal use. You agree not to lease, modify, rent, loan, sell, distribute, nor post any of the VAST™ Videos without the expressed written consent of SpeakinMotion. You agree that violation of these usage obligations shall be a material breach of this Agreement and shall entitle SpeakinMotion to all appropriate damages and remedies, including but not limited to compensatory, contractual, punitive and injunctive relief. You further agree that violation of these usage obligations shall result in irreparable harm to SpeakinMotion in the event SpeakinMotion seeks injunctive relief. In addition, separate from SpeakinMotion's right to damages and remedies for breach of this Agreement, SpeakinMotion shall be entitled to pursue any and all rights it has under copyright law, the Digital Millenium Copyright Act, trademark law, other intellectual property law, federal or state law, common law, and applicable international law.
4.10 DISCLAIMER OF WARRANTIES; LIABILITY LIMITATION.
YOU EXPRESSLY AGREE THAT THE VAST™ VIDEOS DELIVERED TO YOU ARE (EXCEPT AS EXPRESSLY STATED BY SPEAKINMOTION) PROVIDED "AS IS" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
In no case shall SpeakinMotion, its directors, officers, employees, affiliates, agents, contractors, or licensees be liable for any direct, indirect, incidental, punitive, special, or consequential damages resulting from your use of the Custom Recording Service or for any other claim related in any way to your use of the Custom Recording Service. This includes but is not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of your use of the VAST™ Videos, even if advised of their possibility.
5. Intellectual Property
You agree that SpeakinMotion's Services, including but not limited to graphics, audio clips, video clips, VAST™ Videos and software used to process the videos contains proprietary information and material that is owned by SpeakinMotion ("Intellectual Property"), and is protected by applicable intellectual property and other laws. You agree you do not hold any interest in any Intellectual Property that SpeakinMotion may presently hold or hold in the future and that you will not use such proprietary information or materials in any way whatsoever except for personal use in compliance with this Agreement.
SpeakinMotion trademarks, service marks, graphics, and logos (e.g. SpeakinMotion™, VAST™) used in connection with SpeakinMotion Services are trademarks or registered trademarks of SpeakinMotion. You are granted no right or license with respect to the use of any of the marks.
6. Waiver and Indemnity
By using the SpeakinMotion Services, you agree to indemnify and hold harmless SpeakinMotion, its directors, officers, employees, affiliates, agents, contractors, and licensees with respect to any claims arising out of your breach of this Agreement, your use of any VAST™ Video, or any action taken by SpeakinMotion in fulfillment of its obligations under this Agreement. You may not sue or recover any damages from SpeakinMotion, its directors, officers, employees, affiliates, agents, contractors, and licensees as a result of SpeakinMotion's decision to refuse to process of your Submitted Material as part of the Custom Recording Service or to suspend or terminate your Membership or ability to use any SpeakinMotion Service. This waiver and indemnity provision applies to all violations described in this Agreement.
7. Limited Warranty
IN NO EVENT WILL SPEAKINMOTION OR SPEAKINMOTION AFFILIATES BE LIABLE FOR ANY CLAIM OF ANY NATURE, WHETHER DIRECT OR INDIRECT, ARISING FROM OR RELATED TO CONTENT MADE AVAILABLE ON OR THROUGH ALL SPEAKINMOTION SERVICES, INCLUDING BUT NOT LIMITED TO ANY LOSS OR DAMAGE INCURRED AS A RESULT OF USING SPEAKINMOTION SERVICES. ANY PRODUCT OR SERVICE MADE AVAILABLE THROUGH SPEAKINMOTION IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. SPEAKINMOTION AND SPEAKINMOTION AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SPEAKINMOTION MAKES NO WARRANTY THAT THE SERVICES OFFERED WILL BE PROVIDED IN A MANNER THAT IS UNINTERRUPTED, TIMELY OR ERROR FREE, THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THE SERVICE WILL MEET YOUR REQUIREMENTS. SPEAKINMOTION MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO SERVICES THAT ARE PURCHASED, ACCESSED, OR OBTAINED THROUGH THE SPEAKINMOTION SERVICES. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. TO THE FULLEST EXTENT PERMITTED UNDER LAW, THE REMEDIES SET FORTH IN THESE TERMS ARE YOUR SOLE AND EXCLUSIVE REMEDIES.
8. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER LAW, SPEAKINMOTION WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN COMMON LAW, CONTRACT, WARRANTY, STATUTE, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LIABILITIES ARISING WITH RESPECT TO YOUR USE OF ANY SPEAKINMOTION SERVICE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO DAMAGES ARISING FROM USE OR INABILITY TO USE ANY SPEAKINMOTION SERVICE, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR ACCOUNT, CONTENT MADE AVAILABLE TO YOU ANY OTHER MATTER RELATING TO THE SERVICE.
To the extent some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, SpeakinMotion's liability shall be limited to the extent permitted by law.
9. Third Party Software and Websites
SpeakinMotion may utilize third-party software or services as part of SpeakinMotion's Services, or provide links to third-party websites. Your use of such third-party software or websites will be subject to the terms and conditions imposed by the third party provider. The agreement to use such software or websites will be solely between you and the third party provider. SpeakinMotion makes no representations or warranties concerning, and is not liable or responsible in any manner, for any performance, effectiveness or other aspect of such software or websites.
You may provide feedback to SpeakinMotion with respect to the SpeakinMotion Services. SpeakinMotion may use feedback for any purpose without obligation of any kind. If a license is required under your Intellectual Property to make use of your feedback, you hereby grant SpeakinMotion an irrevocable, non-exclusive, perpetual, royalty free license to use your feedback in connection with SpeakinMotion's products and services.
Notwithstanding any other provision of this Agreement, SpeakinMotion and its licensees reserve the right to change, suspend, remove, or disable access to any SpeakinMotion Services, content, or other materials comprising a part of SpeakinMotion's Service at any time without notice. In no event will SpeakinMotion be liable for making these changes. SpeakinMotion may also impose limits on the use of or access to certain features or portions of the SpeakinMotion Service, in any case and without notice or liability.
If you fail, or SpeakinMotion suspects that you have failed to comply with any of the provisions of this Agreement, SpeakinMotion, at its sole discretion, without notice to you, may terminate this Agreement and/or your Membership, and you will remain liable for all amounts due under your account up to and including at the date of termination.
12. Use Outside the United States
This Agreement and the Terms you agree to herein shall apply with full force and effect regardless of whether the SpeakinMotion Services are used within the United States.
13. Safety Warning
To avoid muscle, joint, or eye strain during your use of any SpeakinMotion Services, you should always take frequent breaks, and take a longer rest if you experience any soreness, fatigue, or discomfort. Consult a doctor before using SpeakinMotion Services if you have ever suffered any such symptoms and stop using such products immediately and see a doctor if they occur during your use of such services. Parents should monitor their children's use of SpeakinMotion Services for any health concerns due to watching videos on any device.
14. Arbitration and Dispute Resolution
You and SpeakinMotion agree that any dispute, claim or controversy arising out of or relating in any way to the SpeakinMotion Services, this Agreement and this Arbitration Agreement shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration uses a neutral arbitrator instead of a judge or jury and allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that, by agreeing to this Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to a trial by jury or to participate in a class or representative action. This arbitration provision shall survive termination of this Agreement and your continued use of the SpeakinMotion Service shall be deemed as your full consent.
Upon the bringing of a dispute, claim or controversy in arbitration, the arbitration will be conducted as an individual arbitration. Neither you nor we consent or agree to any arbitration on a class or representative basis, and the arbitrator shall have no authority to proceed with an arbitration on a class or representative basis. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. This arbitration provision applies to and includes any Claims made and remedies sought as part of any class action, private attorney general action (including but not limited to the California Private Attorney General Act of 2004, Cal. Lab. Code § 2698, et seq ("PAGA"), or any other representative action. By consenting to submit your Claims to arbitration, you may be forfeiting your right to share in any class action awards, including class claims where a class has not yet been certified, even if the facts and circumstances upon which the Claims are based already occurred or existed. The parties shall attempt to agree to either the National Arbitration Forum ("NAF") or the American Arbitration Association ("AAA") to administer the arbitration within 14 days of receipt by SpeakinMotion of a request to arbitrate. If the parties cannot reach a mutual agreement on an arbitration organization within this time period, National Arbitration and Mediation ("NAM") shall administer the arbitration. The arbitration organization that is selected will apply its rules, codes, or procedures in effect at the time the arbitration is filed, unless any portion of those rules, codes, or procedures is inconsistent with any specific terms of this arbitration provision or this Agreement, in which case the terms of this arbitration provision and this Agreement will govern. These rules and procedures may limit the amount of discovery available to you or SpeakinMotion. The arbitration shall be before a single arbitrator. The arbitrator will apply applicable substantive law, including the applicable statute of limitations, and will honor claims of privilege recognized at law. The arbitrator will have the power to award to a party any damages provided for under applicable law, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. Rules and forms may be obtained from, and any Claims filed with, either: the NAF at P.O. Box 50191, Minneapolis, Minnesota 55405, web site at www.arb-forum.com; or the AAA at 335 Madison Avenue, Floor 10, New York, New York 10017, website at www.adr.org; or NAM at 990 Stewart Avenue, 1st Floor, Garden City, NY 11530, website at www.namadr.com.
The Federal Arbitration Act, and not state law, shall govern the arbitrability of all Claims between you and SpeakinMotion, including any and all claims or disputes concerning the validity, construction, and performance of this arbitration provision. Any Claim or dispute as to the enforceability of this arbitration provision shall be decided by a court and not an arbitrator, and shall be brought only in the United States District Court for the Northern District of California, Oakland Branch or the Superior Court of California, County of Alameda.
SpeakinMotion reserves the right to alter the terms of this Agreement at any time, with or without notice. Such changes in terms shall apply prospectively to any disputes arising after the change in terms, and will not apply to any current dispute arising under the arbitration provision of this Agreement. Your continued use of the SpeakinMotion Services shall be deemed full consent to any change in terms.