You may use SDT Services only if you can form a binding contract with SDT, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. If you are under 18, you are not eligible to use SDT Services. Additionally, transcription service providers or those working for or representing transcription service providers are prohibited from accessing SDT Services without first advising SDT of their status and obtaining the express written, including e-mail, permission of SDT.
SDT reserves all rights not expressly granted under this Agreement. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void.
2. SDT ACCOUNT
You must create an account through our website in order to gain access to the SDT Services and functionality. You may never use another User’s account without their express written permission. You are solely responsible for the activity that occurs within your account, and you must keep your account login credentials secure. You must notify SDT immediately of any breach of security or unauthorized use of your account. SDT will not be liable for any losses, damages, or liability of any nature, directly or indirectly, caused by or arising from the unauthorized use of your account.
3. SERVICE GUIDELINES
You agree not to engage or attempt to engage in any of the following prohibited activities in connection with or with your use of SDT Services: (i) copying, distributing, or disclosing any part of the SDT Services, other than the Product, in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access SDT Services in a manner that sends more request messages to the SDT servers than a human can reasonably produce in the same period of time by using a conventional online web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) making any effort to interfere with or compromise the system integrity or security or interfere with or decipher any transmissions to or from the servers running SDT Services; (v) taking any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, malware, ransomware, or other software agents through SDT Services; (vii) collecting or harvesting any personally identifiable information, including account names, from SDT servers; (viii) using SDT Services for any purpose other than solely for the purpose of securing transcription services; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of SDT Services; (xi) accessing any content on SDT Services through any technology or means other than those provided or authorized by SDT Services; (xii) bypassing the measures we may use to prevent or restrict access to SDT Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of SDT Services or the content therein; (xiii) decompiling, reverse engineering, or otherwise attempting to obtain the source code of any SDT Services; or (xiv) using the SDT Services for any illegal purpose or in any way that could lead to legal or regulatory action against SDT or its affiliates; or (xv) monitoring the performance or functionality of the SDT Services software, programs or processes or performing any type of benchmarking with respect to the foregoing.
4. DISCONTINUATION OF SERVICE
We may, without prior notice, change SDT Services, stop providing SDT Services or features of SDT Services (to you or generally), or create usage limits for SDT Services. You agree that SDT has no responsibility or liability for the deletion or failure to store any documents, data or other content maintained or uploaded by you to SDT Services. We may permanently or temporarily terminate or suspend your access to SDT Services without notice or liability to SDT, for any reason or for no reason, including if in our sole determination, we believe that you have violated or attempted to violate any provision of this Agreement. Upon termination of this Agreement or your access to SDT Services for any reason or no reason, you will continue to be bound by the terms of this Agreement which, by their nature, should be understood to survive termination, including without limitation ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
5. USER CONTENT
You are solely responsible for all audio and other data (“User Content”) that you upload to the SDT Service, whether through SDT’s website or through other methods. You are responsible for ensuring that all User Content uploaded to SDT is audible and decipherable. Additionally, you agree to provide any necessary collateral information and materials that will help with the transcription, which may include related websites, complimentary files, name identities and more.
You agree not to upload User Content that: (i) may constitute or contribute to a crime or tort; (ii) contains any information or content that a reasonable person would deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, pornographic, or otherwise objectionable; (iii) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); or (iv) contains any information or content that you do not have a right to make available under any law, e.g., copyrighted material, HIPAA, FERPA, etc., or under contractual or fiduciary relationships: provided, however, that such materials may be uploaded in the event they are being generated at the request of counsel for use in conjunction with a legal action or contemplated legal action.
In connection with your User Content, you affirm, represent and warrant that your User Content and SDT’s possession and use thereof as contemplated by this Agreement and SDT Services will not violate any law or infringe any rights of any third party, including but not limited to any copyrights, trade secret rights or any other intellectual property rights (“Intellectual Property Rights”) and privacy rights.
SDT takes no responsibility and assumes no liability for any User Content that you or any other person on your behalf uploads to SDT Services. You acknowledge and agree that SDT may preserve your User Content and may also disclose any content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) address any warranty claims or other claims with respect to the SDT Services and the Product. You understand that the technical processing and transmission of SDT Services, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices
6. DIGITAL MILLENNIUM COPYRIGHT ACT
DMCA Notification. We endeavor to comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If we become aware of or believe the User Content you upload to SDT Services contain materials that may infringe the Intellectual Property Rights of others, we may demand that you provide an electronic or physical signature of the owner or the person authorized to act on behalf of the owner of the copyright or other right being infringed or an affirmation from legal counsel that the materials are being used/to be used in legal action or contemplated legal action.
Any materials or data that you provide to SDT for the purpose of providing SDT Services will be your “Confidential Information,” except to the extent that such materials or data or the contents thereof (a) are known to SDT prior to receipt from you from a source other than one having an obligation of confidentiality to you; (b) become known (independently of disclosure by you) to SDT directly or indirectly from a source other than one having an obligation of confidentiality to you; or (c) become publicly known or otherwise cease to be secret or confidential, except through a breach of this Section by SDT. SDT will use the Confidential Information solely for the purpose of providing SDT Services to you (the “Permitted Purpose”). SDT will not, without your prior consent, disclose to any third party your Confidential Information, other than furnishing such Confidential Information to our directors, officers, employees, agents, consultants, contractors, representatives or affiliated entities who need to have access to such Confidential Information in connection with the Permitted Purpose. SDT will use at least reasonable care to protect the confidentiality of your Confidential Information. In the event that SDT is required by law to make any disclosure of any of your Confidential Information, by subpoena, judicial or administrative order or otherwise, SDT will use commercially reasonable efforts to give you notice of such requirement (to the extent legally permissible) and will permit you to intervene in any relevant proceedings to protect your interests in your Confidential Information
The use of SDT Services is subject to the payment of certain fees. The fees and the terms of payment are as set forth in the TSA: unless set forth in the TSA, the fees are based upon verbally clear, clean and concise audio files of a conversational speech rate of approximately 160 words per minute. Poor audio and/or higher rates of speech may require additional and/or higher fees. Fees for special requests and services, especially as set forth in these Terms, if not specified in the TSA, will be assessed at SDT’s then current rate for such special requests and services. You represent and warrant to SDT that the information you provide for the payment method is true and accurate and that you are the account holder or authorized by the account holder to use and conduct transactions with/under the payment method provided. You will promptly update any account information regarding the payment method with any changes (for example, a change in your billing address, credit card expiration date, financial institution, etc.) that may occur. SDT reserves the right to change our standard prices at any time upon thirty (30) days prior written or e-mail notice. Your continued use of SDT Services after the price change becomes effective constitutes your agreement to pay the changed amount. Similarly, SDT reserves the right to demand a change in the payment method at its option.
9. SDT PROPRIETARY RIGHTS
SDT Services, SDT’s website and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, (the “SDT Content”), and all Intellectual Property Rights related thereto, are the exclusive property of SDT and its licensors. Nothing in this Agreement shall be deemed to create a license to you in or under any such SDT Content and related Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on SDT Services. Use of the SDT Content or materials on or through the SDT Services for any purpose not expressly permitted by this Agreement is strictly prohibited.
10. PRIVACY & HIPAA COMPLIANCE
11. DELIVERY OF PRODUCT AND SUPPORT
SDT will endeavor to complete the assigned work in the shortest amount of time possible, as resources and commercial feasibility allow. Should you require a specific time commitment for any given work, you are to contact SDT directly and you and SDT will agree upon the delivery date(s) and time frame(s) which will be reflected in an email from SDT to you, with the e-mail forming an addendum to this Agreement upon your acknowledgement thereof. Certain “rush” orders may be subject to additional fees, which will likewise be reflected in the aforementioned e-mail. Our US-based support is available by phone between 8 am – 7 pm Monday-Friday, Eastern Time, with extended support provided through email after hours and on weekends.
12. TRANSCRIPTION OUTPUT STYLE
SDT offers transcription output (“Product”), as “Strict Verbatim,” “Light Edit,” and other customized formats as may be agreed upon between SDT and you. “Light Edit” is the default style choice, wherein SDT removes repetitive utterances such as “uhh,” “umm,” “like,” “you-know,” and other words and phrases that are not pertinent to the content of the material. With “Light Edit,” the objective is to produce a transcription of easy readability without changing the content. In the “Strict Verbatim” method, the intention is to include every word and utterance that is voiced in the recording, regardless of grammatical correctness or readability. There shall be no editing of a transcription from one output style to the other; if the alternate output is desired after the transcription is delivered, it will be treated as a new job and incur the full fee for said work. “Strict Verbatim” carries an additional fee per audio minute as set forth in the TSA.
13. SPECIAL CIRCUMSTANCES
The TSA sets forth the default terms of pricing, timing, transcription type and the like. As certain specific projects may require different terms and/or additional features, e.g., time stamping, speaker ID, etc., you and SDT shall agree upon those terms. SDT shall memorialize the same in an email to you in which the email shall constitute an amendment to this Agreement for that/those specific project(s) upon your acknowledgement thereof. Absent your acknowledgement, any work will be performed in accordance with the TSA.
Similarly, if, in the course of transcription work, you desire to change the terms or specifications of work, you must promptly contact SDT and request the same. SDT will, if applicable, requote the pricing on the work and memorialize the same in an email which will be deemed an amendment to this Agreement for that work upon your acknowledgement thereof: otherwise, the revised terms and features will not be implemented and the work will continue in accordance with the TSA. You will be responsible for the fees for the work done to that point and for all fees for the rework and completion thereof.
Finally, as transcription work begins on a specific project, it may become apparent to the transcription staff that the terms sought for that work are not possible due to poor audio or lack of clarity. SDT shall cease further efforts with that project and advise you of the concern and request authorization for any necessary changes in the terms, e.g., poor audio may require a higher rate. If you choose to proceed, the complete work will be billed at the higher rate. If not, you will be responsible for the fees associated with the work to that point at the agreed upon rate.
SDT defines accuracy in accordance with the industry standard metric of the Word Error Rate. The Word Error Rate is a measure of the average number of word errors taking into account three error types: substitution (the reference word is replaced by another word), insertion (a word is hypothesized that was not in the reference) and deletion (a word in the reference transcription is missed). The Word Error Rate is defined as the sum of these errors divided by the number of reference words, which will determine the overall accuracy. Accuracy is contingent on audio quality. If, in SDT’s sole and reasonable determination, audio quality is deemed partially or wholly inaudible, SDT will perform transcription to the best of its abilities, but does not guarantee to meet accuracy rate requirements. Inaudible, poor quality audio, timestamping, and speaker identification will not be included in the calculation of the Word Error Rate. You will have five (5) business days from the date of delivery of the Product to review the same and request revisions, if applicable. Such request must specify the issues of concerns and, if, in the sole opinion of SDT, such concerns or issues are warranted, e.g. transcriptionist error or work quality, SDT will correct the same free of additional charge; otherwise, additional rework shall be at the same fee as the original work for those portions reworked. The latter is especially applicable in the case of poor audio files.
Because intonation, clarity, speed of speech, background noise, etc. can affect the transcriptionist’s ability to decipher the verbiage, particularly with words that are very close in sound, you are solely responsible for reviewing any Product to ensure accuracy and acceptability before making the same public or making any use thereof: SDT shall have no liability of any nature or indemnity obligation to you based on the Product if you fail to conduct this review.
15. TIMESTAMPING & SPEAKER IDENTIFICATION
Time stamps may be inserted at your discretion. For insertions at time intervals shorter than three minutes, there is an additional fee per audio minute as set forth in the TSA. Speaker Identification is defined as a tag that designates the speaking participants within an audio file. Speakers within the file will be labeled using names or labels that you provide. Speaker Identification for recordings that contain more than two people requires video in addition to audio and carries an additional fee per audio minute as set forth in the TSA. SDT reserves the right to forego speaker identification if the audio and video do not support accurate identification: SDT will endeavor to notify you as soon as such issues arise. If you require a specific timestamping and speaker identification formatting, please include this information in the open text box when you upload your files.
SDT cares about the integrity and security of your personal information and User Content. To that end, SDT will endeavor to employ best practices and current technology to protect the same; however, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information or User Content for improper purposes. Accordingly, you acknowledge that you provide your personal information and User Content at your own risk.
Each Party and its respective affiliates, directors, officers, employees, representatives, agents and independent contractors (collectively, as applicable, the “Indemnifying Parties”) will indemnify, defend, and hold harmless the other Party and its respective affiliates, directors, officers, employees, representatives, agents and independent contractors (collectively, as applicable, the “Indemnified Parties”) from and against all claims, liabilities, damages, losses and expenses (including, without limitation, reasonable attorneys’ fees and expenses and costs of suit), and any settlement costs or expenses agreed to in advance in writing by the Parties (altogether “Claims”), arising out of or relating to the disclosure of or making accessible personal information of individuals in breach of HIPPA and any other laws specifically authorizing a claim for a breach in the confidence and security of the personal information of individuals where and to the extent said breach is directly caused by the Gross Negligence, Intentional Misconduct, or Violation of Law by the Indemnifying Parties. Additionally, SDT will defend, indemnify and hold harmless you and your Indemnified Parties for any Claims arising from: (i) your use of the SDT Services where said Claim is based upon an allegation or finding that the SDT Services infringe any third party Intellectual Property Rights. Similarly, you will defend, indemnify and hold harmless SDT and the SDT Indemnified Parties for any Claims arising from or relating to (i) their receipt, possession, transcription and/or, in the course of providing SDT Services, transmission of User Content and Product associated therewith; (ii) your violation of any term of this Agreement, including, without limitation, a breach of any of your obligations, representations and warranties set forth in this Agreement; or (iii) any unauthorized and/or other party’s access and use of SDT Services with your username, password or other appropriate security code.
SDT warrants that its SDT Services will be performed in a professional workman-like manner, consistent with industry standards for transcription services. Additionally, SDT warrants that the Product will have a Word Error Rate of no more than 2%, provided that SDT is provided with a verbally clear, clean and concise audio file of a conversational speech rate of 160 words per minute or less. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SDT DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, CUSTOMARY, STATUTORY OR OTHERWISE, OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, WITH RESPECT TO THE SDT SERVICES AND PRODUCTS. SDT ASSUMES NO RISK WHATSOEVER AS TO THE YOUR RELIANCE UPON OR USE OF THE PRODUCTS. THIS CONSTITUTES SDT’s FULL AND COMPLETE WARRANTY WITH RESPECT TO THE SDT SERVICES AND PRODUCT.
19. LIMITATION OF LIABILITY
Except as otherwise specifically noted, SDT’s sole liability and your sole remedy for a breach of this Agreement by SDT, including the above-mentioned warranty, is the rework of any Product or a refund of those fees paid for the Services/Product which is the subject of the concern or the Claim, if applicable. IN FOLLOWING, SDT WILL NOT BE LIABLE FOR (I) ANY LOSS OF USE, LOSS FROM BUSINESS INTERRUPTION, LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF GOODWILL OR REPUTATION, OR WASTED EXPENDITURE HOWEVER ARISING, INCLUDING, BUT NOT LIMITED TO INACCESSIBILITY, INOPERABILITY, ETC. OF THE SDT SERVERS, OR (II) ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE COST, EXPENSE, LOSS OR DAMAGE OF ANY KIND, ARISING IN CONNECTION WITH THE SDT SERVICES OR PRODUCT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE.
20. GOVERNING LAW AND JURISDICTION
21. Dispute Resolution and Arbitration
In the event of any dispute or breach of this Agreement, the aggrieved party shall provide notice thereof to the other party (a) describing the nature and basis of the claim or dispute; and (b) setting forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, the aggrieved party may commence an arbitration proceeding. In this respect, notwithstanding Section 20 above, except as specifically set forth herein, you and SDT agree that every dispute, regardless of the nature thereof, e.g., tort, contract, fraud, etc., arising from or in relation to this Agreement and the services to be provided hereunder, including the Product, will be resolved by binding arbitration. Arbitration shall be conducted in the State of Florida pursuant to the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), before a single AAA arbitrator mutually agreed upon. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SDT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION LAWSUIT.
Notwithstanding the previous paragraph, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; (d) to file suit in a court of law to address an intellectual property infringement claim; or (e) seek court enforcement of the arbitrator’s decision, including any decision on attorney’s fees and arbitration costs.
22. ENTIRE AGREEMENT / SEVERABILITY
This Agreement, including all documents referenced herein and made a part hereof, constitutes the entire agreement between you and SDT concerning SDT Services and supersedes any pre-existing agreements or understandings, written or verbal, relating to SDT Services. To the extent that you provide SDT with a purchase order or other document containing other terms and conditions, such shall be void and of no force or effect as this Agreement and any authorized amendments hereto shall control. This Agreement may not be modified, amended or supplemented or the like except by written mutual agreement, which may be in electronic form: e-mail amendments must be acknowledged and accepted by the recipient to be deemed in force. If any provision of this Agreement is deemed invalid or unenforceable, the parties shall endeavor to provide language that is valid and enforceable which preserves, as best possible, the intent of the original language. In any event, the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
23. NO WAIVER
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and SDT’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, except in the event you or that portion of your business to which this Agreement pertains is sold, merged, or separated, in which case it may be assigned upon acceptance of the assignment by the new party. SDT may assign this Agreement without restriction or notice.
25. CONTACT US
Should you wish to contact us with any questions, complaints or claims with respect to SDT Services, you should visit the SDT website at www.samedaytranscriptions.com, by mail at 11523 Palmbrush Trail, #102, Lakewood Ranch, FL 34202 USA or email at [email protected].