Account Holder – means You have completed a Credit Application Form which has been received and accepted by VIQ.
Agreement – means this VIQ Terms of Sale Agreement entered into between You and VIQ.
Australian Law – means any statute or other legislative provision, any common law or rule of equity or either of the above.
Balance – means the difference between the Deposit paid and the remaining balance owing to VIQ for provision of the Services.
Credit Application Form – means the form of application for approval for credit account with VIQ provided by You.
Credit Limit – means if You are an account holder, the amount of credit that VIQ will extend to You.
Deposit – means the estimated cost determined by VIQ and generally paid by credit card.
Estimate of Cost – means an estimation of the charges payable by You to VIQ for Services based on any, all or a combination of output produced (e.g. number of pages or words, hours in attendance or charges received) which basis will be expressed as the Estimate of Cost.
Non-Account Holder – means You have not provided to VIQ a completed Credit Application Form.
Order – means any Request for Services which has been accepted by VIQ. VIQ may accept a Request for Services as set forth in Section 2.
Pre-Recorded Transcription – means transcript prepared by VIQ of a recording provided by You or a third party.
Real-time Writer – means transcript prepared onsite using a stenographer.
Record and Transcribe – means transcript prepared from a recording created by VIQ.
Recording Service – means audio file prepared by VIQ.
Request for Services – means the form provided by You to VIQ seeking Services.
Services – means Pre-Recorded Transcription, Recording Services, Record and Transcribe or Real-Time Writer.
Trade Account – means a pre-approved trade credit account with VIQ.
Transcript – means the product of the Pre-Recorded Transcription, Record and Transcribe or Real-time Writer.
Verbatim – every utterance is typed.
VIQ – means VIQ Solutions Pty Limited ABN 37 007 916 056
VIQ Recording – means a recording of words undertaken/prepared by VIQ.
You – means the organisation or individual set forth in the contact details section of the Request for Services.
2. ORDERS, FEES, PAYMENTS, TERMINATION
2.1 Estimate of Cost. If requested by You, VIQ will provide an Estimate of Cost either on-line, verbally or in writing. VIQ will make reasonable efforts to provide an accurate Estimate of Cost. VIQ’s Estimate of Cost is based on assumptions (some of which You may have given to VIQ) including but not limited to the duration of the recording, the number of pages/words produced per hour of recording, the quality of the audio and any other relevant factors. You acknowledge and accept that the Estimate of Cost is an estimate and VIQ will charge based on the actual Services provided.
2.2.1 You must complete and forward to VIQ a Request for Services form either on-line or via post, or email. Your Order is considered accepted from the time payment of the Deposit has been received by VIQ.
2.2.2 You acknowledge and represent that you are placing this request on behalf of your firm/company and you are authorised to do so and do so in the capacity as a principal and not in any capacity as an agent. VIQ is providing goods and services to you on the essential condition that VIQ is providing them to you as the principal and not to you as an agent.
2.2.3 You agree to pay all of VIQ’s fees for providing the Services in the manner provided herein:
To prepay the Deposit prior to VIQ providing any of the
The Balance must be paid to VIQ upon receipt of the invoice for the Balance less the Deposit.
You acknowledge VIQ is not required to provide any Services to you prior to payment of the Balance.
2.2.4 If VIQ’s charges for Services are less than the Deposit, VIQ will refund or credit the difference to You within fourteen (14) days of VIQ’s invoice.
2.3 Account Holders.
2.3.1 If you are an Account Holder, VIQ will provide you a Credit Limit.
2.3.2 You must complete and forward to VIQ a Request for Services form online or via post, email or fax. Your Order is considered accepted when the receipt of the Request for Services form has been confirmed by VIQ.
2.3.3 You acknowledge and represent that You are placing this request on behalf of your firm/company and do so in the capacity as a principal and not in any capacity as an agent. VIQ is providing goods and services to you on the essential condition that VIQ is providing them to you as the principal and not to you as an agent.
2.3.4 You agree to pay all of VIQ’s fees for providing the Services and will make payment to VIQ not later than fourteen (14) days upon Your receipt of the invoice.
2.3.5 Should You exceed the Credit Limit, VIQ may require You to pay an amount equal to the total Credit Limit or another mutually agreed upon amount before the Order is processed.
2.3.6 VIQ may provide You with interim invoices and may require payment prior to providing further Services.
3. WARRANTY DISCLAIMER
TO THE EXTENT NOT PROHIBITED BY LAW, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, AND VIQ HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT AND TITLE. VIQ DOES NOT guarantee that the SERVICES will be performed without error or interruption.
4. AUDIO QUALITY FOR PRE-RECORDED TRANSCRIPTION
4.1 Where the Transcript is to be produced from a recording provided by You, You acknowledge that VIQ’s fees assume that the entire recording can be clearly and easily heard by the transcriptionist. If any part of any recording is poor quality audio, VIQ reserves the right to charge additional fees for producing the Transcript. In this event VIQ will notify you as soon as practicable after it becomes apparent to VIQ that additional charges will be applicable.
4.2 VIQ will notify You of the estimate of additional charges for the Services. Upon written or verbal confirmation from You to VIQ accepting the additional charges VIQ will proceed to provide the Services.
4.3 Any additional charges notified in accordance with Section 4.2, if provided, and will be paid for in accordance with Section 2 hereof by You.
5. TRANSCRIPT STYLE
All Transcript prepared by VIQ will be prepared where false starts, stuttering and speech anomalies may be removed unless a Verbatim Transcript is specifically requested.
6. TERM; TERMINATION
6.1 Term. This Agreement will continue until the expiration of the Order. An Order shall be effective until the Services pursuant to such Order are delivered by VIQ.
6.2.1 You acknowledge VIQ is not required to provide any Transcript should You be in Default. For purposes of this Agreement, Default means You have not made payment to VIQ in accordance with the terms of this Agreement.
6.2.2 Either party may terminate the Agreement upon written notice if the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach by the non-breaching party.
6.2.3 VIQ may terminate this Agreement immediately for cause if You:
make a statement from which it may be reasonably deduced that You are, the subject of an event described in section 459C(2)(b) of the Corporations Act;
have an execution or any other process of any court or authority levied against You or any of Your property, which is not satisfied, stayed, discontinued or withdrawn within 10 days; or
fail to comply with a statutory demand in accordance with section 459F of the Corporations Act (or the corresponding provisions of any similar enactment in any place).
7.1 Subject to the exceptions contained in this Section 7, “Confidential Information” shall mean (a) all information, including third party information, that is (1) disclosed by a party or its affiliates (the “Disclosing Party”), in whatever tangible form or otherwise, to the other party or its affiliates (the “Receiving Party”) that is clearly marked “confidential” or with some other proprietary notice, or (2) disclosed orally or otherwise in intangible form by the Disclosing Party and designated as confidential or proprietary at the time of the disclosure. Notwithstanding the above, information shall not be deemed Confidential Information to the extent that it (i) was generally known and available in the public domain at the time it was disclosed or subsequently becomes generally known and available in the public domain through no fault of the Receiving Party; (ii) was rightfully known to the Receiving Party at the time of disclosure without any obligation of confidentiality; (iii) is disclosed with the prior written approval of the Disclosing Party; or (iv) was independently developed by the Receiving Party without any use of the Confidential Information of the Disclosing Party. The obligation not to use or disclose Confidential Information will remain in effect until one of these exceptions occurs.
7.2 Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such disclosure (a) is in response to a valid order of a court or other governmental body, provided, however, that the responding party shall first have given notice to the other party hereto and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued; (b) is otherwise required by law; or (c) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
7.3 The Receiving Party will not use the Disclosing Party’s Confidential Information for purposes other than as provided in this Agreement. The Receiving Party shall protect the Disclosing Party’s Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorised use, disclosure, or publication of the Confidential Information to third parties as the Receiving Party uses to protect its own Confidential Information of a like nature. Confidential Information received by a Receiving Party hereto may be disclosed to and used by such Receiving Party’s employees, agents and contractors in accordance with the Agreement of this Agreement, and each Party shall be liable for any act or omission by its Affiliates, and its and their respective employees, agents and contractors, which, if performed or omitted by such Party, would be a breach of this Agreement. Each Party agrees that its Affiliates, and its and their respective employees, agents and contractors, shall be bound by the terms of an agreement protecting against unauthorised use or disclosure of Confidential Information that is at least as protective of the Disclosing Party’s rights as this Agreement. No Confidential Information shall be disclosed to any person who does not have a need for such information.
7.4 The Receiving Party shall return to the Disclosing Party, or destroy, all Confidential Information of the Disclosing Party in tangible form: (i) upon the written request of the Disclosing Party; or (ii) upon the expiration or termination of this Agreement, whichever comes first. In both cases, the Receiving Party shall, upon request, promptly certify in writing that it has complied with the obligations of this Section. Notwithstanding the foregoing, each party may retain a copy of the Confidential Information in electronic format in accordance with its corporate security and/or disaster recovery procedures.
8.1 To the extent not prohibited by law, You agree that VIQ is not liable for any loss, damage or injury sustained by You or any other party as a consequence of relying on or use of the Transcript.
8.2 To the extent not prohibited by law, You agree that any implied warranty under any Australian Law is expressly superseded by these Agreement.
8.3 If liability arises under Australian Law, you agree that at the election of VIQ, it may re-perform the Services or compensate You financially for the cost of the Services.
9. LIMITATION OF LIABILITY
9.1 Subject to the Australian Consumer Law, nothing in this Agreement shall be taken to exclude or limit liability to the extent that such exclusion or limitation is not permitted by applicable law.
9.2 The total aggregate liability of VIQ for any and all claims arising under this Agreement or otherwise arising from the transactions contemplated herein, regardless of the form of action (including, but not limited to actions for breach of contract, negligence, strict liability, rescission and breach of warranty) will not exceed the aggregate fees actually paid to VIQ under this Agreement during the one year preceding such claim. VIQ’s limitation of liability is cumulative with all Your payments during such one-year period being aggregated to determine satisfaction of the limit. The existence of more than one claim shall not enlarge or extend the limit.
9.3 In no event shall VIQ be liable to You for any incidental, special, indirect, consequential, or punitive damages, including, but not limited to, loss of revenues, loss of, or loss of use of, software or data, loss of customers, loss of anticipated savings and loss of profits, whether such alleged damages are labeled in tort, contract or indemnity, even if such party has been advised of the possibility of such damages.
10.1 Force Majeure. Nonperformance by VIQ shall be excused to the extent that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts or orders or restrictions, acts of terrorism, war, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of VIQ and not due to its fault or negligence.
10.2 Governing Law. This Agreement is governed by and construed in accordance with the laws of Victoria, Australia, excluding its conflict of laws principles and the United Nations Convention on Contracts for the International Sale, and the parties unconditionally and irrevocably submit to the non-exclusive jurisdiction of the Courts of Victoria and those Courts hearing appeals from them, located exclusively in Melbourne, Victoria. The official text of the Agreement and any Addendum or any notices given on accounts or statements required hereby shall be in English.
10.3 Third Party Beneficiaries. Except as expressly stated otherwise in this Agreement, nothing in this Agreement is intended to create any rights in, or confer any benefits upon, any person or entity other than the parties to this Agreement.
10.4 Assignment. You shall not assign or otherwise transfer its rights, obligations or remedies under this Agreement, in whole or in part, to a third party unless such assignment is approved in writing by VIQ. VIQ shall be free to assign or otherwise transfer its rights and obligations under this Agreement, in whole or in part, to a third party, provided that VIQ provides You with prompt written notice of the assignment. These Agreement shall bind the parties, their respective related companies and any executor, administrator, receiver, liquidator, trustee in bankruptcy, heir, successor or permitted assign thereof.
10.5 Entire Agreement; Headings, Counterparts. This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersede all prior agreements, arrangements and undertakings between the parties. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorized representative of each of the parties. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be an original instrument. Each party acknowledges that it has not been induced to enter into these Agreement by any promise or representation, warranty or undertaking given or made by another party unless such promise, representation, warranty or undertaking is contained in these Agreement. An agreement, representation or warranty on the part of or in favour of two or more persons binds or is for the benefit of them jointly and severally. Each representation, covenant and obligation under these Agreement shall continue in full force and effect until such representation, obligation or covenant is satisfied or completed.
10.6 Partial Validity; Waiver. The illegality, invalidity or unenforceability of any provision of these Agreement shall not affect the legality, validity or enforceability of any other provision or part provision of these Agreement and any provision or part provision of these Agreement which is illegal, invalid or unenforceable shall be severed from the remainder of these Agreement.