The following terms and conditions for use (these "Terms") govern all use of the VoilaHQ.com website (the "Website") and all content, services, features, activities and products available at or through the Website, including but not limited to the Product Visualization service (the "Voila Service" and, together with all other content, services, features, activities and products available through the Website, the "Services"). The Services are owned and operated by Red Boomerang Limited ("we" or "Voila"). Please read these Terms carefully before using the Services.
If you do not agree to all the terms and conditions of this Agreement, you may not use the Services. All rights not expressly granted to you in these Terms are reserved by Voila.
To register for the Service and create an account, you must complete the registration process by providing Voila with the information prompted by the registration form, including e-mail address (username), password, credit card and billing information. You must be 18 years or older to access and use the Service. You agree to provide us with complete and accurate information when you register for the Service, and to keep such information up to date.
You shall protect your username and password and are solely responsible for activities that occur under or through your account, including activities initiated by third parties, whether or not such activities are authorised by you. If you allow a third party to access the Service on your behalf, you shall ensure that such third party is bound by, and abides by, the terms of this Agreement. You agree to notify Voila immediately of any unauthorised use of your account or any other breach of security relating to your account or your use of the Service.
Voila may access your account, or information associated with your account, to provide support or maintenance, for security-related reasons, or any other business purpose. You acknowledge and consent to such access.
Voila may change these Terms from time to time, and will endeavour to notify you of such changes via email or by displaying a message when you next use the Services. If you continue to use the Services, your use will be governed by the updated Terms.
From time to time, Voila may add, make changes to or remove altogether features or functionality of the Services. Voila may also decide to cease providing all or some of the Services at any time, and nothing in these Terms is to be taken as a guarantee that any Service will always be available, either in its current form or at all, or that Voila will support, maintain or continue to offer the Services.
Except as expressly set forth herein, you shall not (A) use, reproduce, modify or create derivative works of the Voila Script, or (B) transfer, lease, lend, sublicense, use for timesharing, or service bureau purposes, resell or otherwise distribute or allow third-party access to all or any portion of the Voila Script or the Service.
The fees charged for use of the Services are set out on the Website ("Fees") and are subject to change. We will endeavour to notify you by email to your last known email address at least 30 days before increasing the Fees. Fees are charged in advance on a monthly or annual basis and are non-refundable, including if you only use part of a month or year's subscription for the Services. Unless required by law, we will not provide refunds in connection with the Services.
If you are carrying out a free trial of the Services, the free trial will begin on the day that your account is opened and end 30 days later. All Fees are exclusive of all taxes (other than New Zealand GST), and you indemnify and hold Voila harmless against any claims by any tax authority for any underpayment of any sales, use, goods and services, value added or other tax or levy, and any penalties and/or interest.
Your Plan, which may start with a Free Trial Period (described below), will renew automatically and continue month-to-month or year-to-year (depending on your Plan) unless and until you cancel your Plan or we terminate it, in each case pursuant to the terms of this Agreement (see Section 4.5 ("Account Cancellation") and Section 11 ("Term and Termination")). You must cancel your Plan before it renews in order to avoid fees due under the next billing cycle. To view the specific details of your Plan, visit the Voila Website, login at http://www.voilaHQ.com. We will bill the fees due under your Plan to the credit card you provide to us during registration (or to a different credit card if you change your payment information). You acknowledge that the amount billed for each renewal period may vary due to promotional offers, changes in your Plan, and changes in applicable taxes, and you authorise us to bill you the corresponding amounts.
We reserve the right to deactivate your access to the Service for failure to pay applicable fees as described in this Agreement.
All fees for your Plan will be billed to your credit card. You authorise the card issuer to pay any amounts described herein and in your Plan and authorise us (or a billing agent acting on our behalf) to continue charging all such amounts to your credit card account until you or we cancel or terminate your Plan as provided herein or these amounts are paid in full, whichever is later. You must provide current, complete and accurate billing and credit card information. You must promptly update all billing information (such as billing address, card number and expiration date) to keep your account current, complete and accurate, and you must promptly notify Voila if your credit card is lost or stolen, or if you become aware of a potential breach of security (such as an unauthorised disclosure or use of your username or password). You authorise us to obtain updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you as a replacement. If payment is not received from your credit card issuer, you agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney's fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. Please check with your bank and credit card issuer for details.
The fees for your Plan are billed in advance, are non-refundable, and automatically renew on a monthly or annual basis, as specified in your Plan. With the exception of the Money Back Trial Period (described below), no refunds or credits will be provided for partial months of the Service, upgrades/downgrades, or for months unused with an open account.
If you downgrade your Plan level, your credit card will automatically be charged the new rate beginning with your next billing cycle. Downgrading your Plan may cause the loss of account content, features, or capacity. Voila does not accept any liability for such loss.
If you upgrade your Plan level, your credit card will immediately be charged a pro-rated amount reflecting the increased rate, and you will be charged the full amount of the new rate beginning with your next billing cycle.
Any discounts applied to a previous subscription may not apply to a renewed subscription, including to any automatic renewals.
Voila can cancel or suspend your account at any time if, in our sole discretion, you have committed a material or persistent breach of these Terms or any other terms applying to your use of the Services.
You are entitled to cancel your account with Voila at any time. The only valid method for canceling your Plan is to send a cancellation email via the link provided on the "Settings" page, accessible after logging in to the Volia Website. If you cancel your account before the end of your current paid up month or year, your cancellation will take effect immediately and you will not be entitled to any refund of Fees paid in advance (unless we agree otherwise).
If your account is cancelled: (a) your account will be deactivated or deleted; (b) all of your rights granted under these Terms will immediately come to an end; and (c) all of your data and content may be deleted from our systems immediately. Your content cannot be recovered once your account is cancelled. Voila is not liable for any loss or damage following, or as a result of, cancellation of your account, and it is your responsibility to ensure that any content or data which you require is backed-up or replicated before cancellation.
Voila may offer, during the registration process, a one-time free trial period during which you can try out the Service for 30 days from the date you register to use the Service without pre-paying in advance ("Free Trial Period"). To view the specific details regarding your Free Trial Period, if any, visit the Voila Website, login at http://www.voilaHQ.com.
If you participate in a Free Trial Period, you must cancel the Service by the end of the Free Trial Period to avoid incurring any charges. If you do not cancel the Service before the Free Trial Period expires, you authorise us to charge your credit card the full cost of your Plan, as described to you during the registration process. Your Plan will then automatically renew and continue month-to-month or year-to-year (depending on your Plan), unless and until you cancel your Plan or we terminate it (see Section 4.5 ("Account Cancellation") and Section 11 ("Term and Termination")). You will not receive a notice from Voila that your Free Trial Period is about to end or has ended.
In some instances, the available balance or credit limit on the credit card provided during the registration process may be reduced to reflect the pre-authorisation of certain de minimis charges related to your Plan; however, no charges will be made against your credit card unless you do not cancel prior to the end of your Free Trial Period.
You may cancel your Plan at any time during the Free Trial Period by following the steps described in Section 4.5 ("Account Cancellation"). Upon cancelling your account, you will immediately lose all access to the Service and any data or information stored within your account (see Section 11 ("Term and Termination") for additional details).
Voila reserves the right to modify, cancel and/or limit the Free Trial Period offer at any time.
As between the parties, you shall retain ownership of any information, data and statistics that Voila obtains from your website, such as raw data, images and log files generated by the Service.
You hereby grant to Voila, and you agree to grant to Voila, a royalty-free, non-exclusive, irrevocable, limited right and license to access your registered web page(s) and to collect any information concerning users' actions or activities on the Service within your web page(s), for (i) providing you with reports and other functions related to the Service; (ii) analysing and improving the Service; and/or (iii) compiling aggregate data derived from your use of the Service to compile statistics, metrics, insights and general trend data about the Service for, among other things, marketing and promotional purposes.
You represent and warrant that you have all rights, licenses, and consents required to license Client Data to Voila on these terms, and further represent and warrant that this license does not infringe the rights of any third party or violate any applicable law or regulation.
By posting any software, information, data, databases, music, audio, video or audiovisual files, photographs, images, documents, text, digital files, forum messages, reviews, comments or other material ("Material") to the Website, you hereby grant Voila an irrevocable, perpetual, non-exclusive, royalty-free worldwide license to reproduce, adapt, distribute, perform or publicly display all or any portion of the Material on our Services. You further represent and warrant that you own all rights to such Material and that this license does not infringe the rights of any third party or violate any applicable law or regulation.
As used in this Section 6, "Personally Identifiable Information" refers to information that can be used to personally identify an individual, such as name, address and phone number.
Your Voila account is protected by a username and password, and should be accessed only by you or authorised third parties. For maximum protection, you should protect against unauthorised access to your username and password and remember to log off when using any shared computer or device. Voila has implemented reasonable security mechanisms to protect your information and Client Data from loss, misuse and unauthorised access, disclosure, alteration and destruction. Examples of these security mechanisms include limited access, firewalls and SSL encryption to protect transmission of data. However, please keep in mind that no security system is impenetrable. It may be possible for third parties to intercept or access Client Data, information you provide to Voila, information we compile on your behalf, and/or information that we collect about you. Voila cannot guarantee the security of such information and is not responsible for unauthorised access to client accounts.
Voila will not knowingly permit access to, or otherwise divulge to a third party, the statistical information we compile for you except for the express purpose of generating reports which have been authorised by or approved by you, or unless acting under a good faith belief that such action is necessary to (i) conform to legal requirements or comply with legal process; (ii) protect and defend the rights or property of Voila; (iii) enforce our agreements with clients and/or Visitors; (iv) troubleshoot problems with the Services; or (v) generate aggregate reports as set forth below.
Voila reserves the right to aggregate certain broad categories of data (such as number of queries performed per day and geographic locations) across some or all of the websites using Voila for the purposes set forth in Section 5 ("License to Client Data") and/or to compile reports regarding general web usage or trends, which may be provided to third parties. This information will be presented only in aggregate form, and in no event will we compile specific site data that identifies clients or clients' Visitors without client permission.
You may not use the Services in connection with any website labeled or described as a "Kid's" or "Children's" website or any website directed at individuals under the age of 13.
Any opinions expressed by the contributors, authors and moderators who post content to the Website are the personal opinions of the authors, not of Voila, whether or not the authors are employees or contractors of Voila. The Website and all materials published and/or distributed on or through the Website (including, but not limited to news articles, photographs, images, illustrations, audio clips and video clips) are provided for informational and entertainment purposes only and are not meant to be an endorsement or representation by Voila or any other party.
Except for the limited licenses expressly granted herein, Voila expressly reserves all right, title and interest in and to the Voila Script, content on the Website, and all processing, analytics, and other software and technology used by Voila in the analysis of your website and/or the provision of the Service ("Voila Technology"), including, without limitation, any derivatives, improvements, enhancements or extensions of the Voila Technology conceived, reduced to practice or otherwise developed on or on behalf of Voila, all of which are valuable assets of Voila, and any copyright, patent or trademark or other intellectual property right pertaining thereto.
You shall not (i) use, or allow the use of, the Services or any Voila Technology, except pursuant to the limited rights expressly granted in this Agreement; (ii) use the Services in any manner that is inconsistent with user documentation, if any, supplied to you by Voila or inconsistent with Voila's standard security procedures, if any, accessible through your user interface; (iii) attempt to reverse engineer, hack into, or compromise any aspect of the Services or Voila Technology, or attempt to access data of any other customer of Voila; (iv) remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by Voila; (v) use, post, transmit or introduce any device, software or routine that interferes or attempts to interfere with the operation of the Services; (vi) use the Services, or any Voila Technology, for academic research or research unrelated to your Visitors or the web page(s) registered for use with the Services, contemplated litigation, scholarship, or any other unintended purpose; (vii) post or transmit any libelous, defamatory, indecent, obscene, abusive or pornographic message, data, image or programme; (viii) post or transmit any message, data, image or program that would violate any property rights of others; (ix) upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents; or (x) use the Services to threaten, harass, or otherwise violate the legal rights (including rights of privacy and publicity) of others.
You acknowledge that any Material you post, upload, or submit to the Website may be edited, removed, deleted, modified, published, transmitted, and displayed by Voila in its sole discretion and without your permission and you waive any rights you may have in having the material altered or changed in a manner not agreeable to you. You expressly agree that we may remove, disable or restrict access to or the availability of any Material from the Website at any time, for any reason or for no reason at all. Voila reserves the right to treat Material as content stored at the direction of users for which Voila will not exercise control except to block or remove content that comes to Voila's attention and is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal, libelous, defamatory, fraudulent, deceptive, misleading or otherwise objectionable to Voila, or to enforce the rights of third parties or the content restrictions set forth in this Agreement when notice of their violation comes to Voila's attention. However, Voila shall not be responsible for controlling or editing any Material and Voila cannot ensure prompt removal of inappropriate or unlawful Material. Under no circumstances will we be held liable for removing, disabling or restricting access to or the availability of Material.
You agree to indemnify, hold harmless and (if requested by Voila) defend Voila, at your expense, against any and all third-party claims, actions, proceedings, and suits asserted against Voila or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees) incurred by Voila or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Services, or (iii) your unauthorised use of the Voila Script. In such instances, Voila will provide you with electronic and written notice of such third-party claim, action, proceeding, or suit to the last e-mail address and mailing address furnished to Voila within 30 days of learning of such claim. You shall cooperate as fully as reasonably required in the defense of any claim. Voila reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
The Services are provided on an "as is" and "as available" basis, and your use of them is at your sole risk. Voila will try to promptly address all technical issues that arise in connection with the Services.
Voila does not warrant that: (a) the Services will meet your specific requirements; (b) the Services will be uninterrupted, timely, secure, or error-free; (c) the Services will be accurate or reliable; (d) the quality of any products, services, information, or other material purchased or obtained by you through the Services will meet your expectations; or (e) any errors in the Services will be corrected.
You acknowledge that Voila may use third party suppliers to provide hardware, software, networking, connectivity, storage and other technology in order to provide the Services. The acts and omissions of those third party suppliers may be outside of Voila’s control, and Voila does not accept any liability for any loss or damage suffered as a result of any act or omission of any third party supplier.
On behalf of itself and such third party suppliers, Voila excludes any other warranties that may be implied or otherwise apply under statute or other applicable law, to the maximum extent permitted by law.
You are responsible for all activity that results from use of the Services through your account. You are responsible for maintaining the security of your account and password. Voila will not be liable for any loss or damage that may result from any failure to keep User names and passwords secure.
You indemnify Voila against all forms of liability, actions, proceedings, demands, costs, charges and expenses which Voila may incur or suffer as a result of use of the Services through your account or as a result of your failure to comply with these Terms.
You represent and warrant to Voila that you (i) own all right, title and interest in and to the URLs of your website; (ii) own or have obtained all rights necessary to publish all of the content published on or through your website and the user interface of your website; and (iii) have obtained all necessary consent(s) from Visitors required to enable the Services.
In addition, you grant Voila the right to access Client Data for the purposes of (A) providing you with reports and other functions related to the Services; (B) analysing and improving the Services; and/or (C) compiling aggregate data derived from your use of the Services to compile statistics, metrics, insights and general trend data about the Services for, among other things, marketing and promotional purposes.
The information, reports and services included in or available through the Services may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Voila and/or its respective vendors may make improvements and/or changes in the Services at any time, without obligation to notify any person or entity of such changes.
THE SERVICES, THE VOILA SCRIPT AND ANY REPORTS DERIVED THEREFROM ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY VOILA EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, THE VOILA SCRIPT, THE REPORTS, OR ANY DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. VOILA DOES NOT WARRANT THAT THE SERVICES, THE VOILA SCRIPT OR ANY REPORTS DERIVED THEREFROM WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES.
To the maximum extent permitted by law, Voila shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, business, goodwill, use, data or other intangible losses (even if Voila has been advised of the possibility of such damages), resulting from: (a) the use or the inability to use the Service (in whole or in part) or any technical malfunctions; (b) the cost of procurement of substitute goods and services; (c) unauthorised access to, or alteration of, your communications or data; (d) statements or conduct of any third party regarding the Services; or (e) any other matter relating to the Services.
In any case, Voila’s maximum aggregate liability under or in connection with these Terms or your use of the Services is limited to the amount of Fees paid by you in the past 6 months.
Voila may terminate or suspend access to the Services immediately, without prior notice or liability, if you breach this Agreement or for any other reason.
Either party may terminate the Services at any time and for any reason. To terminate your use of the Service, please follow the steps described in Section 4.5 ("Account Cancellation").
Upon any termination of the Services (i) Voila will cease providing the Service; (ii) you will delete all copies of the Voila Script from your web page(s); (iii) any outstanding balance payable by you to Voila will become immediately due and payable and any collection expenses incurred will be included in the amount owed; (iv) you will not be entitled to any refunds of any usage fees or any other fees; and (v) all of your historical report data will no longer be available to you through Voila.
In addition, upon expiration of any Session with respect to a web page, you shall delete all copies of the Voila Script from such web page.
You must not: (a) use the Services in any unlawful manner, for any unlawful or fraudulent purpose, or in any manner inconsistent with these Terms; (b) infringe our intellectual property rights or those of any third party in relation to your use of the Services; (c) transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Services; (d) use the Services in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; (e) collect or harvest any information or data from the Services or our systems or attempt to decipher any transmissions to or from the servers running any Services; (f) disclose or distribute information relating to another User of the Services to any third party, or use any other User's information for any marketing purposes unless you have that User's express permission to do so; or (g) access or register User logins via bots or other automated methods.
Voila shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
This Agreement (including any amendment thereto) represents the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to reflect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
If any controversy, allegation, or claim arises out of or relates to the Services, the Website, your Plan, or this Agreement, or in connection with this Agreement, or the subject matter of this Agreement, including any question about its existence, validity or termination including but not limited to claims for indemnification, contribution, or cross-claims in a pending action involving one or more third parties (collectively, a "Dispute"), then:
i. before taking any Court action, both you and Voila must use best efforts to resolve any Dispute under, or in connection with, the Agreement through good faith negotiations. Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a Dispute. This process does not affect either party’s right to seek urgent interlocutory and/or injunctive relief
ii if a resolution can not be reached through 13.3 i, either you or Voila may elect to refer the matter to and finally resolved by arbitration in accordance with the Arbitration Rules of the New Zealand Dispute Resolution Centre (NZDRC) for the time being in force.
These Terms shall be governed by New Zealand law, and you submit to the exclusive jurisdiction of the New Zealand courts for any matter or dispute arising in relation to these Terms.
Voila may deliver notice to you under this Agreement by means of electronic mail, a general or specific notice on the Services, a communication to your Voila account or by written communication delivered by post to your address on record.
Any notices to Voila must be sent to:
Voila c/- Red Boomerang Limited
via post or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default.
You may not assign, sub-licence, novate or otherwise transfer any of these terms or any of the rights licensed under them without Voila's prior written consent, and any such attempt is void. The relationship between Voila and you is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
If Voila does not insist that you perform any of your obligations under these Terms, or if Voila do not immediately enforce our rights against you, that will not mean that Voila have waived our rights against you and will not mean that you do not have to comply with those obligations.
The Services are provided for use in business, so you are not a consumer. To the maximum extent permitted by law, any statutory or other consumer protection provisions (including in the Consumer Guarantees Act 1993 and in the Fair Trading Act 1986) do not apply to the Services, these Terms or our relationship with you.
The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement.
Recognising the global nature of the Internet and the rapid changes around online privacy, you agree to comply with all local rules regarding online conduct and acceptable content. Without limiting the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from the New Zealand or the country in which you reside and to comply with any other local laws affecting the Services.