Effective Jun 4, 2020
Welcome, and thank you for your interest in Otter.ai, Inc. (“Otter.ai,” “we,” or “us”) and our Otter Voice Meeting Notes tool, along with our website at otter.ai, along with our related networks, applications, mobile applications, and other services provided by us (collectively, the “Service”).These Terms of Service are a legally binding contract between you and Otter.ai regarding your use of the Service. As used herein, “you” or “your” means any entity, university, organization, or company accessing or using the Service (“Organization”) as well as any individual end user accessing and using the Service, as applicable and hereby agreeing to these Terms.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
1. Otter.ai Service Overview. The Service enables users to transform recorded voice conversations into transcribed notes that can be searched and shared. You may choose whether to use the free version of the Service (“Free Service”) or the subscription-based paid version of the Service for which you may be required to pay fees (the “Paid Service”).
2. Eligibility. You must be at least 13 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an Organization, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration.
3.1 General. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, phone number, or other contact information. If you wish to designate individual users to access and use the Service under your account (such users, “Authorized Users”), you may also be required to provide us with some information about such Authorized Users. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times, and that you have all necessary rights and approvals to provide such information. When you register, you will be asked to provide a password. You are responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at email@example.com.
3.2 Authorized Users.
a. You are responsible for: (i) identifying and authenticating all of your Authorized Users (ii) approving access by your Authorized Users to the Service and designating appropriate access controls in connection with your account, (iii) controlling against unauthorized access by your Authorized Users, and (iv) all activities that occur under your Authorized Users’ usernames, passwords or accounts as a result of your Authorized Users’ access and use of the Service.
b. If you received your credentials to access and use the Service (including certain features thereof) from your Organization or otherwise are accessing the Service under your Organization’s account, you acknowledge and agree that your access to the Service as provided by your Organization is subject to the agreement between Otter.ai and your Organization with respect to the Service. You also acknowledge that your Organization may terminate the access to the Service that they provide to you at any time. Otter.ai will have no liability to you in connection with any such removal or termination.
c. If the domain of the email address associated with your account is owned by an Organization and was assigned to you as an employee, contractor or member of the Organization (such as firstname.lastname@example.org), you acknowledge and agree that we may identify your account to the Organization, migrate your account to the Organization’s account, and/or restrict or terminate access to your account. Otter.ai will have no liability to you in connection with any such disclosure, restriction, or termination.
4. General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have the opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
4.1 Price. Otter.ai reserves the right to determine pricing for the Service. Otter.ai will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Otter.ai may change the fees for any feature of the Service, including additional fees or charges, if Otter.ai gives you advance notice of changes before they apply. Otter.ai, at its sole discretion, may make promotional offers with different features and different pricing to any of Otter.ai’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2 Authorization. You authorize Otter.ai and its third party payment processors to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Otter.ai, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Otter.ai or its third party payment processors may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. At its discretion Otter may allow an organization to purchase the Service by issuing an invoice for payment that must be settled within 30 days of issuance.
4.3 Subscription Service.
a. General. The Service may include automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize Otter.ai or its third party payment processors or Apple or Google if you subscribed directly through the mobile application to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums, including all accrued sums for your Authorized Users. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. For more information on the “Subscription Fee”, please see https://otter.ai/pricing. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period, which may be one month or one year depending on the selection you make on your account (such period, the “Initial Subscription Period”). At the end of the Initial Subscription Period, your subscription will automatically renew for a period equal to the Initial Subscription Period (such renewal period, the “Renewal Subscription Period”), unless you cancel your subscription or we terminate it. If you may add additional users to Teams accounts throughout the Subscription Period you will be charged a pro-rata fee for the time remaining to the renewal period. If you disable users to Teams or do not allocate users to a purchased Team user seat you will earn a corresponding pro-rata credit for the unused portion of the Subscription Period that may be applied to your fee for the subsequent Renewal Subscription Period. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Otter.ai or its third party payment processor will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service in the settings page for your account at Otter.ai if you signed up directly via our website, or through settings in the Apple App Store, or Google Play Store if you subscribed directly in the mobile application or contacting us at: email@example.com.
4.4 Delinquent Accounts. Otter.ai may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any sums are due but unpaid. Without limiting the generality of the foregoing, if you have been provided access to the Service (including certain features thereof) via your Organization and your Organization has not paid all sums due, we may suspend or terminate your access to the Service. In addition to the amount due for the Service, a delinquent account may be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Otter.ai grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace on a mobile device that you own or control; and (b) access and use the Service.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism; (d) access or use the Service in violation of any usage restrictions or other limitations associated with the level of Service you (or your Organization) have selected to access and purchased, if applicable. If you are prohibited under applicable law from using the Service, you may not use it.
5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Otter.ai an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights. The Service is owned and operated by Otter.ai. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Otter.ai are protected by intellectual property and other laws. All Materials included in the Service are the property of Otter.ai or its third party licensors. Except as expressly authorized by Otter.ai, you may not make use of the Materials. Otter.ai reserves all rights to the Materials not granted expressly in these Terms.
7. Government Rights. Otter.ai provides the Service, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The government hereby agrees that the Service qualify as “commercial” computer software. Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these Terms, it must negotiate with Otter.ai to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
8. Third Party Terms
8.1 Third Party Services and Linked Websites. Otter.ai may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that may allow you to link your account on Otter.ai with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Otter.ai may transfer that information to the applicable third party service. Third party services are not under Otter.ai’s control, and, to the fullest extent permitted by law, Otter.ai is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Otter.ai’s control, and Otter.ai is not responsible for their content.
9. User Content
9.1 User Content Generally. Certain features of the Service may permit users to upload content to the Service (including by syncing your account with Third Party Accounts as further described in Section 9.1), including voice recordings, audio recordings, data, text, photographs, and other types of works (“User Content”), and to otherwise publish User Content on the Service. To the extent you desire to use the Service in connection with materials or information located on your Zoom, Dropbox, or other third-party accounts (collectively, “Third Party Accounts”), you hereby grant Otter.ai permission to access the Third Party Accounts in connection with Otter.ai’s provision of the Service. As between you and Otter.ai, you retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
9.2 Voice Recordings. The Service may provide a feature that allows you to record individual conversations and/or upload recorded conversations. The laws regarding the notice and notification requirements of such recorded conversations vary by location. You acknowledge and agree that you are solely responsible for providing any notices to, and obtaining consent from, individuals in connection with any recordings as required under applicable law.
9.3 Limited License Grant to Otter.ai. Customer retains all ownership rights to the User Content processed using the service. You grant Otter.ai a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, export, process, transform, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed in a manner that is under your control. Customer may delete User Content from their account where it may be stored in a separate trash folder provided with the service for a specified period unless they choose to delete it from the trash folder. Once it has been permanently deleted from the user account either by direct action by the user or on expiration of the specified retention period in the trash folder, no record of the User Content is retained and the User Content cannot be recreated by the service.
9.4 License Grant to Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access, use, modify, and distribute that User Content as permitted by these Terms and the functionality of the Service.
9.5 Access to User Content and Results. Otter.ai may permit you to share certain User Content or the results of processing User Content with other users of the Service, share User Content or the results of processing User Content outside of the Service, or even make certain User Content or the results of processing User Content public for all (even non-Service users) to view. You acknowledge and agree that, although Otter.ai may provide certain features intended to allow you to restrict access of some User Content you create from others, Otter.ai does not guarantee that such User Content or any results of processing User Content will never be accessible by others. To the fullest extent permitted by law, Otter.ai is not responsible for the use of any User Content or results of processing User Content by users or non-users of the Service or any third parties.
9.6 User Content Representations and Warranties. Otter.ai disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Otter.ai and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Otter.ai, the Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Otter.ai to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
9.7 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Otter.ai may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Otter.ai with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Otter.ai does not permit copyright-infringing activities on the Service.
9.8 Monitoring Content. Otter.ai does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. Otter.ai is not responsible for the use of any User Content by users or any third parties. You acknowledge and agree that Otter.ai reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Otter.ai chooses to monitor the content, Otter.ai still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content.
9.9 Machine Learning. Otter.ai shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (“Usage Data”). The Service may be implemented using machine learning systems with features and implementations designed to generate statistics, calibrate data models, and improve algorithms in the course of processing User Content and Usage Data (“Machine Learning”). Nothing in these Terms prohibits Company from using such Machine Learning for testing, tuning, optimizing, validating, or otherwise enhancing the analytics, models, or algorithms underlying the Service. Nothing in these Terms gives you any rights in or to any part of the Service or the Machine Learning generated by Company or the Machine Learning generated in the course of providing the Service.
10.1 Text Messaging. Otter.ai and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may be used for two factor authentication.. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier and Otter.ai is not responsible for these charges.
10.2 Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
10.3 Email. We may send you emails in the course of delivering the service to notify when User Content has been processed, shared with you or for other operational purposes. We may also send emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
11. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. use the Service or any portion thereof for the direct or indirect benefit of any third parties;
c. use the Service in connection with any direct or indirect commercial purposes, including in connection with any paid transcription workflow or as a value-added component of a commercial product or service;
d. harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
e. violate, or encourage others to violate, any right of a third party (including by act or omission), including by infringing or misappropriating any third party intellectual property or proprietary right;
f. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
g. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
h. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
i. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
j. attempt to do any of the acts described in this Section 11 or assist or permit any person in engaging in any of the acts described in this Section 11.
12. Digital Millennium Copyright Act
12.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
5150 W El Camino Real, A22
Los Altos, CA 94022
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
12.2 Repeat Infringers. Otter.ai will promptly terminate the accounts of users that are determined by Otter.ai to be repeat infringers.
13. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 13, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
14. Term, Termination and Modification of the Service
14.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 14.2.
14.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Otter.ai may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at firstname.lastname@example.org.
14.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Otter.ai any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections [5.3, 6, 7, 10, 14.3, 16, 16, 17, 18, 19, and 20] will survive.
14.4 Modification of the Service. Otter.ai reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Otter.ai will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
15. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Otter.ai and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Otter.ai Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) the nature of content of Data processed by the Service; or (e) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
16. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AND TRANSCRIPTIONS AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. OTTER.AI DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AND TRANSCRIPTIONS AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. OTTER.AI DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE (OR YOUR ACCESS THERETO), OR ANY DATA, MATERIALS OR CONTENT OFFERED THROUGH OR PROCESSED BY THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND OTTER.AI DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. OTTER.AI IS NOT RESPONSIBLE FOR THE FAILURE TO STORE OR MAINTAIN ANY USER DATA, CONTENT OR TRANSCRIPTIONS, USER COMMUNCIATIONS, ACCOUNT INFORMATION, OR PERSONAL SETTINGS. OTTER.AI MAKES NO WARRANTY ABOUT THE COMPLETENESS OR ACCURACY OF THE TRANSCRIPTION.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR OTTER.AI ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE OTTER.AI ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF, USE OR DISCLOSURE OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Otter.ai does not disclaim any warranty or other right that Otter.ai is prohibited from disclaiming under applicable law.
17. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE OTTER.AI ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY OTTER.AI ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 19.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE OTTER.AI ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO OTTER.AI FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18. Privacy and Information Security
18.2 Data Processing. To the extent Data falls within the scope of the General Data Protection Regulation or the United Kingdom General Data Protection Regulation, the terms of the Data Processing Attachment in Appendix 1 of these Terms (“DPA”) apply to the processing of any Customer Personal Data (as defined in the DPA).
18.4 Use of Aggregated Data. You acknowledge and agree that Otter.ai may collect, create, process, transmit, store, use, and disclose aggregated and/or deidentified data derived from Data or use of the Services (“Aggregated Data”) for its business purposes, including for machine learning and training, industry analysis, benchmarking, and analytics. All Aggregated Data will be in an aggregated and/or deidentified form only and will not identify you. Nothing in these Terms gives you any rights in or to any part of the Service or Aggregated Data.
18.5 Compliance. You are solely responsible (a) for Data as entered into, supplied, accessed, or used by you and (b) for complying with any privacy and data protection laws and regulations applicable to Data or your use of the Service. You represent and warrant that you have obtained and will maintain all rights, consents, and authorizations required to grant Otter.ai the rights and licenses set forth in Section 18 and to enable Otter.ai to exercise its rights under the same without violation or infringement of the rights of any third party.
18.6 Information Security. Otter.ai will employ commercially reasonable security measures that are designed to protect Data in its possession or control against unlawful or unauthorized access, use, alteration, or disclosure.
19. Dispute Resolution and Arbitration
19.1 Generally. In the interest of resolving disputes between you and Otter.ai in the most expedient and cost effective manner, and except as described in Section 19.2 and 19.3, you and Otter.ai agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND OTTER.AI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
19.2 Exceptions. Despite the provisions of Section 19.1, nothing in these Terms 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 in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
19.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 19 within 30 days after the date that you agree to these Terms by sending a letter to Otter.ai, Inc., Attention: Legal Department -Arbitration Opt-Out, 5150 W El Camino Real, A22, Los Altos, CA 94022 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Otter.ai receives your Opt-Out Notice, this Section 19 will be void and any action arising out of these Terms will be resolved as set forth in Section 20.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
19.4 Arbitrator. Any arbitration between you and Otter.ai will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Otter.ai. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
19.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Otter.ai’s address for Notice is: Otter.ai, Inc., 5150 W El Camino Real, A22, Los Altos, CA 94022. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set 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 of Arbitration is received, you or Otter.ai may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Otter.ai must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Otter.ai in settlement of the dispute prior to the award, Otter.ai will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
19.6 Fees. If you commence arbitration in accordance with these Terms, Otter.ai will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Otter.ai for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
19.7 No Class Actions. YOU AND OTTER.AI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Otter.ai agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
19.8 Modifications to this Arbitration Provision. If Otter.ai makes any future change to this arbitration provision, other than a change to Otter.ai’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Otter.ai’s address for Notice of Arbitration, in which case your account with Otter.ai will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
19.9 Enforceability. If Section 19.7 or the entirety of this Section 19 is found to be unenforceable, or if Otter.ai receives an Opt-Out Notice from you, then the entirety of this Section 19 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 20.2 will govern any action arising out of or related to these Terms.
20.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Otter.ai submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
20.3 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
20.5 Contact Information. The Service is offered by Otter.ai, Inc., located at 5150 W El Camino Real, A22, Los Altos, CA 94022. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
20.6 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
20.7 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
21. Notice Regarding Apple. This Section 21 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Otter.ai only not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Data Processing Attachment
This Data Processing Attachment (“DPA”) is incorporated into and made part of the Terms of Service (“Terms”) between you (“Customer”) and Otter.ai, Inc. (“Company”). Unless otherwise defined in this DPA, capitalized terms will have the meaning given to them in the Terms. This DPA prevails over any conflicting term of the Terms, but does not otherwise modify the Terms.
1.1 In this DPA:
a. ““Controller,” “Data Subject,” “Personal Data,” “Personal Data Breach,” “Processing,” “Processor,” and “Supervisory Authority,” have the meaning given to them in the GDPR.
b. “Customer Personal Data” means any Data that constitutes Personal Data, the Processing of which is subject to Data Protection Law, for which Customer or Customer’s customers are the Controller, and which is Processed by Company to provide the Service;
c. “Data Protection Law” means Data Protection Directive 95/46/EC, General Data Protection Regulation (EU) 2016/679 (“GDPR”), the United Kingdom General Data Protection Regulation, and e-Privacy Directive 2002/58/EC (as amended by Directive 2009/136/EC), and their national implementations in the European Economic Area (“EEA”), Switzerland and the United Kingdom, each as applicable, and as may be amended or replaced from time to time;
d. “Data Subject Rights” means Data Subjects’ rights to information, access, rectification, erasure, restriction, portability, objection, and not to be subject to automated individual decision-making in accordance with Data Protection Law;
e. “International Data Transfer” means any transfer of Customer Personal Data from the EEA, Switzerland or the United Kingdom to an international organization or to a country outside of the EEA, Switzerland and the United Kingdom;
f. “Privacy Shield” means the self-regulatory framework administered by the U.S. Department of Commerce in accordance with EU Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-U.S. Privacy Shield (OJ L 207, 1.8.2016, p. 1-112) and as approved by the Swiss Federal Council on January 11, 2017, each as applicable, and may be amended or replaced from time to time;
g. “Subprocessor” means a Processor engaged by Company to Process Customer Personal Data; and
h. “Standard Contractual Clauses” means the clauses annexed to EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (OJ L 39, 12.2.2010, p. 5-18).
2. Scope and applicability
2.1 This DPA applies to Processing of Customer Personal Data by Company to provide the Service.
2.2 The subject matter, nature and purpose of the Processing, the types of Customer Personal Data and categories of Data Subjects are set out in Appendix 2.
2.3 Customer is a Controller and appoints Company as a Processor on behalf of Customer in relation to the purposes set out in Appendix 2. Customer is responsible for compliance with the requirements of Data Protection Law applicable to Controllers.
2.4 If Customer is a Processor on behalf of other Controller(s), then Customer is the single point of contact for Company; must obtain all necessary authorizations from such other Controller(s); undertakes to issue all instructions and exercise all rights on behalf of such other Controller(s); and is responsible for compliance with the requirements of Data Protection Law applicable to Processors.
2.5 Customer acknowledges that Company may Process Personal Data relating to the operation, support, or use of the Service for its own business purposes, such as billing, account management, data analysis, benchmarking, technical support, product development, and compliance with law. Company is the Controller for such Processing and will Process such data in accordance with Data Protection Law. Such Processing shall not be subject to the terms of this DPA.
3.1 Company will Process Customer Personal Data to provide the Service and in accordance with Customer’s documented instructions.
3.2 The Controller’s instructions are documented in this DPA, the Terms, and any applicable statement of work.
3.3 Customer may reasonably issue additional instructions as necessary to comply with Data Protection Law. Company may charge a reasonable fee to comply with any additional instructions.
3.4 Unless prohibited by applicable law, Company will inform Customer if Company is subject to a legal obligation that requires Company to Process Customer Personal Data in contravention of Customer’s documented instructions.
4.1 Company will ensure that all personnel authorized to Process Customer Personal Data are subject to an obligation of confidentiality.
5. Security and Personal Data Breaches
5.1 Taking into account the state-of-the-art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Company will implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including the measures listed in Appendix 3.
5.2 Customer acknowledges that the security measures in Appendix 3 are appropriate in relation to the risks associated with Customer’s intended Processing, and will notify Company prior to any intended Processing for which Company’s security measures may not be appropriate.
5.3 Company will notify Customer without undue delay after becoming aware of a Personal Data Breach involving Customer Personal Data. If Company’s notification is delayed, it will be accompanied by reasons for the delay.
6.1 Customer hereby authorizes Company to engage Subprocessors. A list of Company’s current Subprocessors is available here.
6.2 Company will enter into a written agreement with Subprocessors which imposes the same obligations as required by Data Protection Law.
6.3 Customer may object to the addition of a Subprocessor based on reasonable grounds relating to a potential or actual violation of Data Protection Law by providing written notice detailing the grounds of such objection within thirty (30) days following Company’s notification of the intended change. Customer and Company will work together in good faith to address Customer’s objection. If Company chooses to retain the Subprocessor, Company will inform Customer at least thirty (30) days before authorizing the Subprocessor to Process Customer Personal Data, and Customer may immediately discontinue using the relevant part of the Service, and may terminate the relevant part of the Service within thirty (30) days.
7.1 Taking into account the nature of the Processing, and the information available to Company, Company will assist Customer, including, as appropriate, by implementing technical and organizational measures, with the fulfillment of Customer’s own obligations under Data Protection Law to: comply with requests to exercise Data Subject Rights; conduct data protection impact assessments, and prior consultations with Supervisory Authorities; and notify a Personal Data Breach.
7.2 Company will maintain records of Processing of Customer Personal Data in accordance with Data Protection Law.
7.3 Company may charge a reasonable fee for assistance under this Section 7. If Company is at fault, Company and Customer shall each bear their own costs related to assistance.
8.1 Upon reasonable request, Company must make available to Customer all information necessary to demonstrate compliance with the obligations of this DPA and allow for and contribute to audits, including inspections, as mandated by a Supervisory Authority or reasonably requested no more than once a year by Customer and performed by an independent auditor as agreed upon by Customer and Company. The foregoing shall only extend to those documents and facilities relevant and material to the processing of Customer Personal Data, and shall be conducted during normal business hours and in a manner that causes minimal disruption.
8.2 Company will inform Customer if Company believes that Customer’s instruction under Section 8.1 infringes Data Protection Law. Company may suspend the audit or inspection, or withhold requested information until Company has modified or confirmed the lawfulness of the instructions in writing.
8.3 Company and Customer each bear their own costs related to an audit.
9. International Data Transfers
9.1 Customer hereby authorizes Company to perform International Data Transfers to any country deemed adequate by the EU Commission; on the basis of appropriate safeguards in accordance with Data Protection Law and Company’s Privacy Shield certification.
10.1 Customer will send all notifications, requests and instructions under this DPA to Company’s legal department via email to firstname.lastname@example.org. Company will send all notifications under this DPA to Customer’s contact email address.
11.1 To the extent permitted by applicable law, where Company has paid damages or fines, Company is entitled to claim back from Customer that part of the compensation, damages or fines, corresponding to Customer’s part of responsibility for the damages or fines.
12. Termination and return or deletion
12.1 This DPA is terminated upon the termination of the Terms.
12.2 Customer may request return of Customer Personal Data up to ninety (90) days after termination of the Terms. Unless required or permitted by applicable law, Company will delete all remaining copies of Customer Personal Data within one hundred eighty (180) days after returning Customer Personal Data to Customer.
13. Modification of this DPA
13.1 This DPA may only be modified by a written amendment signed by both Company and Customer.
14. Invalidity and severability
14.1 If any provision of this DPA is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability of such provision does not affect any other provision of this DPA and all provisions not affected by such invalidity or unenforceability will remain in full force and effect.
Description of the Processing
1. Data Subjects
The Customer Personal Data Processed concern the following categories of Data Subjects (please specify):
1 Employees of customers who use the services
2 Students of institutions that subscribe to service
2. Categories of Customer Personal Data
The Customer Personal Data Processed concern the following categories of data (please specify):
1 Registration information including email address and volunteered first and last name
2 Audio recordings stored by the user that may include personal data
3. Sensitive data
The Customer Personal Data Processed concern the following special categories of data (please specify):
1 The Service are not intended to Process special categories of data.
4. Processing operations
The Customer Personal Data will be subject to the following basic Processing activities (please specify):
1 The Otter services create legible notes from recorded voice conversations using proprietary technologies for automated speech recognition (ASR), keyword extraction and voice to text synchronization. Data may be ingested directly via recording using a mobile or web application, upload of audio files or synchronization with other applications including cloud storage or online video conferencing that store or capture recorded audio. Audio is processed in cloud infrastructure and delivered to the Otter application where it may be consumed or downloaded in a variety of formats.
The Service is provisioned using a cloud-based platform and we employ best practices regarding security services. A summary of security measures includes:
Physical Access Controls
All User Content is processed and stored in leading commercial cloud services infrastructure in the United States. We work with cloud services that comply with security standards regarding managing physical access.
System Access Controls
We maintain separate production and development/staging environments. Access to production environments is limited to system administrators and all access is logged.
Data Access Controls
Only selected support personnel may access User Content directly with the users explicit permission. Any requests to access User Content is approved by the system administrator. All requests are logged.
All User Content is encrypted in transit and at rest. We use HTTPS for all communication. We use the industry standard encryption algorithms for stored User Content and passwords.
User is authenticated by password or using Google, Microsoft, or Apple login. Two factor authentication may be enabled by account administrator for Teams accounts. We use web cookies to validate signed in users.
We have daily backup of databases and all User Content is stored in persistent storage.
All User Content is associated with their user ID and stored in a manner that there is no way for users to access another’s content.
California Data Processing Attachment
This California Data Processing Attachment (“CCPA DPA”) is incorporated into and made part of the Terms of Service (“Terms”) between you (“Customer”) and AISense, Inc. (“Company”) if you are an Organization. Unless otherwise defined in this CCPA DPA, capitalized terms will have the meaning given to them in the Terms. In the event of any conflict between the terms of the Terms and this CCPA DPA, this CCPA DPA shall prevail to the extent of such conflict.
- Definitions. “Business Purpose,” “Consumer,” “Personal Information,” “Selling,” and “Service Provider” shall have the respective meanings given to them in the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time (“CCPA”).
- Scope. The terms of this CCPA DPA shall apply only to Company’s collection, retention, use, disclosure, and sale of Personal Information governed by the CCPA that Customer provides to Company as a Service Provider, or Company collects from or on behalf of Customer as a Service Provider, in connection with the Services or to perform a Business Purpose (“Customer Personal Information”).
- Role. The parties acknowledge and agree that Customer appoints Company as a Service Provider to process Customer Personal Information on behalf of Customer.
- Restrictions on Processing. Company is prohibited from (i) retaining, using, or disclosing Customer Personal Information for any purpose other than for the specific purpose of performing the Services or as otherwise permitted by the CCPA or the Terms and (ii) further collecting, Selling, or using the Customer Personal Information, except as necessary to perform the Services.
- Assistance. Company will provide reasonable assistance to Customer for the fulfillment of Customer’s obligations to respond to CCPA data-rights requests of Consumers.