These Terms were last updated on 27 September 2022
Welcome to VoiceQ, a voice dubbing software solution owned and operated by Kiwa Digital Limited, a limited liability company registered in New Zealand with its registered office at Generator, 12 Madden St Auckland 1010 (“Kiwa”, “we”, “us” or “our”). In these Terms, any person who subscribes to any VoiceQ Services is referred to as “Subscriber”, “you” or “your”.
These Terms may be varied by us at any time, effective upon the posting of modified terms on the VoiceQ Website or as otherwise notified to you in writing (including by email). You will ensure that you have read, understood and agreed to the most recent version of the Terms.
|1.1||In consideration for payment of the monthly, annual or perpetual (as applicable) subscription fee set out on the VoiceQ Website or as otherwise agreed with you (Subscription Fee), we grant you a non-exclusive and non-transferable right to:
(a) in respect of our on-premise products, download, install and use those products;
(b) in respect of our cloud products, access and use those products;
(c) access and use the documentation (if any) we make available to you through the Subscription Services, which sets out a description of the Subscription Services and the user instructions for the Subscription Services (Documentation); and
(d) permit any authorised employee, contractor, officer or agent of yours (Authorised User) in respect of whom you have purchased a licence to use the Subscription Services (Subscription) to access and use the Subscription Services and the Documentation as set out in (a) – (c) above,
solely for your own internal business purposes and during the relevant Subscription Period, all on the terms and conditions set out in these Terms.
|1.2||You acknowledge and agree that:
(a) you will be responsible for determining which of your Authorised Users can access and use the Subscription Services, and you acknowledge that we will not be responsible for your use, or inability to use, the Subscription Services arising out of or in connection with any act or omission of your Authorised Users;
(b) you will ensure that Authorised Users comply with these Terms and such other terms and conditions as we may notify to you in writing from time to time; and
(c) any act or omission of Authorised Users relating to the use of the Subscription Services will be treated as your act or omission. We may terminate any Subscription you have purchased in respect of an Authorised User if we consider that that Authorised User is in breach of these Terms or has put you in breach of these Terms.
|1.3||You will, and will ensure that your Authorised Users:
(a) comply with all applicable laws with respect to your use of VoiceQ Services;
(b) keep secure and confidential logins and passwords for access to and use of the Subscription Services and Documentation;
(c) use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us;
(d) allow us at any time to audit your or your Authorised Users’ use of the Subscription Services in order to establish whether the Subscription Services are being used in accordance with these Terms;
(e) promptly disable any login account if we discover (through undertaking the audits referred to in clause 1.3(d)) that any login details have been provided to any third party;
(f) on demand, pay to us an amount of any underpayment of Subscription Fees discovered by us through undertaking the audits referred to in clause 1.3(d); and
(g) ensure that your network and systems comply with the relevant specifications as may be specified by us from time to time.
|1.4||You will be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.|
|1.5||You will not:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Subscription Services and/or Documentation (as applicable) in any form or media or by any means, except as expressly permitted under these Terms or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Subscription Services, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
(c) access all or any part of the Subscription Services and Documentation in order to build a product or service which competes with the Subscription Services and/or the Documentation;
(d) attempt to undermine the integrity or security of the Subscription Services or any systems, networks or resources used in the provision of the Subscription Services;
(e) attempt to gain unauthorised access to any information or materials other than those to which you have been given express permission to access as part of the Subscription Services;
(f) make the Subscription Services and/or Documentation available to any third party (other than to Authorised Users in accordance with these Terms);
(g) access, store, distribute or transmit any viruses, worms, trojan horses or other malicious code.
We may, immediately and without liability to you, disable your access to the Subscription Services if you are in breach of this clause 1.5.
|1.6||If you pay for the Subscription Services on a monthly or annual basis (or we otherwise agree to provide you with upgrades or updates), you acknowledge that we may regularly upgrade and update the Subscription Services and that the Subscription Services may continually evolve. Some of these changes will occur automatically, while others may require you to schedule and implement the changes. You will, where required, upgrade your software and/or devices in order to make efficient use of the Subscription Services. We will provide you with reasonable notice of any such changes.|
|2.1||If you pay for the Subscription Services on a monthly or annual basis (or we otherwise agree to provide you with Support Services), we will provide you with reasonable remote technical support and assistance during normal business hours in respect of any support requests made by an Authorised User via email to email@example.com or via the online form at https://www.voiceq.com/contact (Support Services). We will endeavour to respond to support requests submitted in accordance with this clause within 48 business hours of receiving that support request. Unless expressly stated otherwise or where you have purchased a perpetual licence, the fee for the Support Services is included in the Subscription Fees.|
|3.1||We may agree to provide you with training, implementation or consultancy services in respect of your use of the Subscription Services (Consultancy Services). The specific terms and pricing applicable to our provision of Consultancy Services will be agreed in a separate agreement between you and Kiwa (Statement of Work). Any Statement of Work will form part of and be governed by these Terms.|
|4.1||You will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the data inputted or provided by you or your Authorised Users for the purpose of using the Subscription Services or Support Services, or facilitating your use of the Subscription Services or Support Services (Your Data).|
|4.2||Each party will take appropriate technical and organisational measures against unauthorised or unlawful processing of Your Data or its accidental loss, destruction or damage. In respect of our cloud services, we will use reasonable endeavours to back-up Your Data. You acknowledge that if there is any loss or damage to Your Data, your sole and exclusive remedy will be for us to use reasonable commercial endeavours to restore such lost or damaged data from the latest back-up of Your Data maintained by us. We will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party.|
|4.3||You acknowledge and agree that we may use Your Data for the purpose of:
(a) performing our obligations under these Terms;
(b) ensuring that you are complying with these Terms;
(c) improving or enhancing the Subscription Services;
(d) performing data analysis on an aggregated and anonymous basis,
provided that we comply with our confidentiality obligations under clause 10.
|5.1||You will pay the Subscription Fees, in advance, on a monthly, annual or one-off basis as specified on the VoiceQ Website in respect of the Subscription Services. You will pay any fees for Consultancy Services set out in a Statement of Work on the 20th of the month following the date of an invoice from us. Unless otherwise agreed in writing, all fees will be charged to your nominated debit or credit card on the due date for payment and are non-refundable.|
|5.2||If you fail to pay any fees when due, then (without prejudice to any of our other rights and remedies) we may, without liability to you, disable access to all or part of the Subscription Services, cease providing any Support Services or Consultancy Services, and will be under no obligation to provide any or all of the VoiceQ Services while the outstanding fees remain unpaid.|
|5.3||All amounts stated or referred to in these Terms are exclusive of value added or goods and services tax (if any), and unless otherwise stated, are in United States dollars. If you are required by law to deduct or withhold taxes or charges from the amounts due to us under these Terms, you will ensure that the amount due to us is increased so that the payment actually made to us equals the amount due to us as if no such taxes or charges had been imposed.|
|5.4||We may change the Subscription Fees by giving you at least 30 days’ written notice prior to the end of your then current Subscription Period.|
|5.5||5.5 If you are carrying out a free trial of the Subscription Services (as offered on the VoiceQ Website), the free trial will begin on the day that subscribe for the trial and end 10 days later. If you wish to continue to use the Subscription Services at the end of the free trial period, you will need to provide us valid credit card details and pay the relevant Subscription Fees.|
|6.1||In these Terms, Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide.|
|6.2||We and/or our licensors own all Intellectual Property Rights in the:
(a) VoiceQ Services (except Your Data); and
together with all modifications, enhancements and other developments to the VoiceQ Services and the Documentation (whether or not recommended or suggested by you). Except as expressly stated in these Terms, these Terms do not grant you any rights to, or in, the Intellectual Property Rights, or any other rights or licences, in respect of the VoiceQ Services or the Documentation.
|6.3||You own the Intellectual Property Rights in Your Data. You grant to us a non-exclusive right to use Your Data to perform our obligations and exercise our rights under these Terms.|
|7.1||Except as expressly permitted in these Terms, you and we both agree to:
(a) not use the other party’s confidential information for any purpose other than complying with these Terms; and
(b) take reasonable steps to protect the other party’s confidential information from being accessed by unauthorised individuals.
|7.2||If required by law or any regulatory authority, you or we may share each other’s confidential information as required. We may also publicly refer to or publicise your use of the Subscription Services to promote the VoiceQ Services, including:
(a) your business name;
(b) the names of Authorised Users who used the Subscription Services;
(c) the Subscription Services that you or your Authorised Users use, and how the specific Subscription Services that you subscribe to have been used by you;
(d) the name of projects in respect of which you have used the Subscription Services;
(e) the specific parts or aspects of your projects that have used or relied on the Subscription Services;
(f) the quantitative and qualitative value our Subscription Services have added to your project(s); and
(g) by resharing on our website or social media any social media posts you make relating to your use of the Subscription Services or any project in respect of which you have used the Subscription Services.
|8.1||The VoiceQ Services and the Documentation are provided on an “as is” basis. To the maximum extent permitted by law, we exclude all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) in respect of the VoiceQ Services and Documentation.|
|8.2||We do not warrant:
(a) that your use of the VoiceQ Services will be uninterrupted or error-free;
(b) that the VoiceQ Services, Documentation and/or the information obtained by you through the VoiceQ Services will:
(i) always be available, either in its current form or at all; or
(ii) meet your requirements; or
(c) that we will support, maintain or continue to offer the VoiceQ Services.
|8.3||You acknowledge that the Subscription Services may include data, services or applications from third parties (Third Party Products), which may be subject to terms and conditions and privacy notices of their providers. We will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or in connection with any Third Party Products including any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.|
|8.4||You will indemnify us against all costs, losses, expenses and damages that we incur arising out of or in connection with any claims against us resulting from:
(a) your, and Authorised Users’, use of the VoiceQ Services, the Documentation or any Third Party Products; or
(b) any breach by you or your Authorised Users of these Terms.
|8.5||To the maximum extent permitted by law and subject to clause 8.6:
(a) you and we will not be liable to the other party under the law of tort, contract or otherwise for any loss of profits, loss of revenue, loss of data, or any indirect, consequential or special loss or damage suffered or incurred by you, however caused, arising out of or in connection with these Terms; and
(b) subject to paragraph (a) above, your and our liability under or in connection with these Terms will not exceed in aggregate an amount equal to the Subscription Fees actually paid by you to us in the three months prior to time the liability arises.
|8.6||Nothing in clause 8.5 limits:
(a) your liability under the indemnity in clause 8.4;
(b) your liability for a breach of clauses 1.3 or 1.5;
(c) your liability for a breach of our Intellectual Property Rights; or
(d) either your or our liability for negligence, wilful breach of these Terms or fraud.
|9.1||Each Subscription continues for the period covered by the Subscription Fee paid or payable in respect of that Subscription as set out on the VoiceQ Website or as otherwise agreed with us (Subscription Period). At the end of a Subscription Period, the Subscription will continue for a further period of the same duration provided you pay the applicable Subscription Fee in respect of that further period. You can terminate a Subscription at any time by submitting a request via our cancellation form at https://www.app.voiceq.com/cancel and providing us with at least 10 days’ prior written notice.|
|9.2||We may terminate the Subscription Services or Consultancy Services:
(a) at the end of your then current Subscription Period by providing you with written notice at least 30 days prior to the expiry of your then current Subscription Period;
(b) at any time on 60 days’ prior written notice to you, in which case we will refund any Subscription Fees pre-paid to us for unused Subscription Services; and
(c) immediately, along with your access to all or any of Your Data, if you fail to pay the Subscription Fees when due.
|9.3||9.3 Either party may terminate the Subscription Services or Consultancy Services if the other party:
(a) is in material breach of these Terms or a Statement of Work and, where the breach is capable of remedy, fails to remedy such breach within 14 days of receiving notice from the other party specifying the breach and requiring it to be remedied; or
(b) goes into liquidation or has a receiver or statutory manager appointed of any of its assets, becomes insolvent or makes any arrangement with creditors.
|9.4||On termination of the Subscription Services or the Consultancy Services for any reason:
(a) you will pay all Subscription Fees up to and including the effective date of termination;
(b) all licences granted under these Terms will immediately terminate and you must cease, and must ensure that your Authorised Users cease, using the VoiceQ Services and the Documentation;
(c) each party will return, and make no further use of property, software, Documentation and other items (and all copies of them) belonging to the other party;
(d) we may delete any of Your Data in our possession unless we receive, no later than 10 days after the effective date of the termination, a written request for access to the most recent version of Your Data in our possession. We will use reasonable commercial endeavours to allow you to export Your Data in a format specified by us within 30 days of your receipt of such a written request, provided all Subscription Fees and other fees outstanding at and resulting from termination (whether or not due at the date of termination) have been paid. Following this 30 day period we may then delete any of Your Data in our possession; and
(e) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, will not be affected or prejudiced.
|10.1||If a dispute arises out of or relates to these Terms (Dispute), a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.|
|10.2||A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.|
|10.3||On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.|
|10.4||If the Dispute is not resolved within 15 business days of the notice being given pursuant to clause 10.2 (or within such further period agreed in writing by the parties), either party may, by giving written notice to the other party, require the Dispute to be determined by the arbitration of a single arbitrator. The arbitrator will be appointed by the parties or, failing agreement within five Business Days of the notice requiring arbitration, by the President of the New Zealand Law Society on application of either party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.|
|11.1||In these Terms:
(a) “include” and “including” do not imply any limitation;
(b) “business day” means a day other than a Saturday, Sunday or public holiday in Auckland, New Zealand;
(c) “business hours” means 8.00 am to 8.00 pm New Zealand Standard Time on each day that is a business day;
(d) “Subscription Services” means the VoiceQ cloud services, and the on-premise software product, that you elect to subscribe to via the VoiceQ Website or by contacting us directly, and any features, technologies or functionality provided by those products or services, offered by us from time to time;
(e) “VoiceQ Services” means the Subscription Services, the Support Services and the Consultancy Services, as well as any access to or use of the VoiceQ Website; and
(f) “VoiceQ Website” means https://www.voiceq.com or any other URL address operated by us from time to time.
|11.2||These Terms and any Statements of Work constitute the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter. In the event of any conflict or inconsistency between these Terms and a Statement of Work, these Terms will prevail.|
|11.3||We may sub-contract any of our obligations under these Terms without obtaining your prior consent.|
|11.4||We will not be liable to you for any failure or delay in performance of any of our obligations under these Terms arising out of any event or circumstance beyond our reasonable control.|
|11.5||These Terms will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.|
|11.6||If any part or a provision of these Terms is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of these Terms will continue to operate.|
|11.7||A provision or a right under these Terms may not be waived except in writing signed by the party granting the waiver.|
|11.8||You will not assign, transfer or otherwise deal with any Subscription or these Terms, or any of your rights or obligations under these Terms, whether in whole or in part, without our prior written consent.|
|11.9||Any notice you send must be sent to firstname.lastname@example.org. Any notice we send will be sent to the email address you provided when you subscribed for the VoiceQ Services.|
|11.10||11.10 These Terms will be governed by and construed in accordance with the laws of New Zealand. If you wish to bring any claim or other action against us arising out of or in connection with these Terms then you must bring that claim or other action against us in New Zealand.|