VideoKardz Terms of Business
These Terms govern your access to and use of this site and your purchase of our products and the basis of any contractual obligations between us.
Please read these Terms of Service carefully, in conjunction with our Privacy & GDPR Compliance page and any specific details or instructions that may appear on each video product or order page.
The definitions and rules of interpretation in this clause apply in the Contract or Agreement, whether it be express or implied.
Changes may be made to these Terms from time to time. Your continued use of the Site or Services will be deemed acceptance to amended or updated terms.
If you do not agree to any of these Terms, please do not use the Site or Services.
All products and services available through this website.
The aggregated selected range of Third Party hardware, software, websites, services and products that we use, either individually or collectively, to provide the "Services" to you on this site.
Yourself, (or, "member", "client", "purchaser", "your"), as any visitor or registered Member, any adult user of the Site, or any parent or guardian of any minor whom you allow to use the Site and the Services, and for whom you will be held strictly responsible.
If you are a minor, you must obtain the permission of your parent or guardian prior to using the Site or Services.
If you do not obtain such permission, do not use the Site or Services.
Ourselves, (or, "VideoKardz", "VideoKardz.com", "us", "our", "we", "the owner") services are provided by the owner of this web site for you to request the creation of quality videos using our tools and order forms that are accessible on this website (the "Site").
Any video created for you as a result of you using the Services.
A day other than a Saturday, Sunday or Public Holiday in Australia when banks in Brisbane are open for business.
These terms and conditions as amended from time to time.
"Data Protection Legislation"
(a) the Data Protection Act 2018; and
(b) the General Data Protection Regulation ((EU) 2016/679) ("GDPR") and any national implementing laws, regulations and secondary legislation, as may be adopted, amended or updated from time to time, in Australia; and then
(c) any successor legislation to the GDPR or the Data Protection Act 2018.
Please note however that while the GDPR is not currently applicable in Australia, the owner of this web site does constantly seek to abide by its principles as to the extent to which they can be practically applied.
The documentation made available to you by us online via our Site or such other web address notified by us from time to time which sets out a description of the Services and the user instructions for the Services.
The full completion of our order form without omission, error or ambiguity and with clear instruction for any required variation.
"First Quality Images"
This may also be termed "original resolution images", particularly in the instance of JPEG images. JPEG's (.jpg's) are known as a 'Lossy' image format and, as such, can behave like a photocopier.
The more you copy them, the more the quality degrades with each iteration of the original. It is impossible to restore these degraded copies back to their original resolution.
This degradation can occur to the pixel resolution, spatial resolution or spectral resolution and often all three together.
Therefore the sharpest image, will be the original or first quality image and the end quality of your video will thus rely on your images being of this original quality.
The PNG, (.png), format is the format that we require all logo's to be in. This is known as a "lossless" format where subsequent copies do not degrade from the original.
They are usually a larger file size however, they also have the additional benefit of allowing a transparent background which lets them to seamlessly sit 'on top' of any other background.
But again, a file saved as a .png cannot improve on the quality of the original. So it remains important that the clarity is of original resolution is sharp and clear. Often these are converted from SVG to transparent PNG files and this transition can usually be done without issue.
Please never attempt to convert JPEG files to PNG files as the result will not be satisfactory and of a usable quality.
May also be termed as "Customer Materials". The customisable components of the video that are uploaded by you. For example, but not limited to, your logo, your color selections, your background music selection or upload, your text field wording and details, your uploaded PNG or JPEG images, any applicable .mp4 background videos, any applicale spokesperson scripts, any applicable spokesperson or other voice recordings, any applicable embed code, any applicable hotspot locations or Linkscripts.
The agreed date of any Contract. This is normally the date and time that any initial pre-payment of services is made by you.
The date and time stamp on our eMail when we advise completion and the completed file download link. This may be extended subject to the provision of a second proof as detailed elsewhere in this document and as such, Practical Completion will be deemed to be the date and time stamp on our eMail when we advise completion and the file download link of the second and final version.
Any subscription fees and other charges payable by you to us as set out in your order.
Your Temporary (Public) or Member subscription to use the Services and the Documentation to allow us to produce your ordered video(s) or to receive our Monthly Video Catalog.
The initial subscription term for the Services, usually monthly or annually as set out in your Subscription.
Currently, our members enjoy a 'lifetime' Subscription and no changes to this are currently envisaged.
An agreed period of time equal to the Initial Term or 12 months, whichever is shorter.
Being the Initial Term and any Renewal Period.
"Intellectual Property Rights"
Patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
The period of one month starting on the calendar day corresponding to the commencement of your Subscription.
"Normal Business Hours"
8.00 am to 4.00 pm local AEST time, each Business Day.
Our privacy notice setting out how we will process any personal data provided by you, which is available on our Privacy & GDPR Compliance page and as amended from time to time.
The subscription services provided by us to you under the Contract via the Site or any other website notified to you from time to time, as more particularly described in the Documentation.
The selected range of Third Party hardware, software, websites, services and products, the use of which allows us to provide the "Services" to you on this site.
This site with the URL, https://VideoKardz.com and its sub-directories that apply to the relevant subscriber groups.
Visitors and Subscriber's to this site are able to be allocated to one or more subscriber groups.
For example, a casual visitor may not have access to all of the member pages and benefits. They will also not receive our Newsletter's and Monthly Video Catalog.
The subscriber group level to our Newsletter's and Monthly Video Catalog may have those benefits, yet may still not have access to all of the member pages and benefits.
The full membership group levels, will provide access to all of the member pages and benefits - as well as our Newsletter's and Monthly Video Catalog. However, they can also opt-out of receiving our Newsletter's and Monthly Video Catalog at any time.
The online software applications used or provided by us as part of the Services whether they are provided by ourselves or a third party.
Any storage limit for online storage of your videos that may be imposed by a Third Party Provider. Whether this actually exists or not will depend on the Third Party Provider however details are available on request.
This refers to the time that your video assets, including the final completed video, will be held on our servers. This will normally be THIRTY (30) days from the date of our eMail to you advising of the practical completion of your order and its download link.
It is your responsibility to hold your own backups of your uploaded video assets and to immediately download and make a secure backup copy of your completed video(s).
Our standard support services available via our eMail Support page.
Clause, schedule and paragraph headings will not affect the interpretation of the Contract.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
Unless the context otherwise requires, words in the singular includes the plural and in the plural includes the singular.
Unless the context otherwise requires, a reference to one gender includes a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract and a reference to a statute or statutory provision includes all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
References to clauses and schedules are to the clauses of these Conditions.
In the event of any conflict between the provisions of these Conditions and any document referred to herein, the provisions of these Conditions take priority.
WHO WE ARE AND HOW WE CAN CONTACT EACH OTHER
VideoKardz is a website owned and operated by Neil Weston under ABN 74 612 539 739.
If you wish to contact us in writing, or if any condition in the Contract requires you to give us notice in writing, you can send this to us by eMail to firstname.lastname@example.org or though the eMail Support page.
We will confirm receipt of this by responding to you in writing, normally also by eMail.
Due to the sometimes unreliability of the internet, if such response is not forthcoming within THREE business days, it will indicate as evidence that your initial correspondence has not been received by us.
If we have to contact you or give you notice in writing, we will do so by eMail to the address you provide in your account details. We may also post general notices on our Site.
It is your responsibility to ensure that the eMail address you provided in your account details or through Facebook Auto Login remains current.
You may update your membership profile here or your Monthly Video Catalog Subscription eMail address here.
We will, during the Subscription Term, provide the Services and make available the Documentation and/or Support Services to you on, and subject to, the terms of the Contract.
The level of Services accessible by you will be in accordance with your Subscriber Group. You may upgrade your Subscription level at any time.
AUTHORISED USER SUBSCRIPTIONS
Subject to you gaining the Subscription and the terms and conditions of the Contract, we grant you an exclusive, non-transferable right, without the right to grant sub-licences, to permit you, alone, as the Authorised User to use the Services and the Documentation during the Subscription Term.
You undertake that you will not allow the Subscription to be used by any individual or party other than yourself.
You agree to keep a secure password for this use of the Services and Documentation, that such password will be changed regularly and that you will keep your password confidential
If it is revealed that you have underpaid Fees, then without prejudice to our other rights, you will pay on demand an amount equal to such underpayment as calculated in accordance with our then current price list.
You will not:
Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:
* attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
* attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party, or attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than you as an Authorised users.
You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us.
The rights provided under these terms are granted to you only, and will not be considered granted to any subsidiary or holding company.
Our obligation to supply is subject to your payment of fees remain honoured and uncontested and is limited to requests made after pre-payment and through our official site order forms where confirmation of receipt has been made by us.
Such supply will be deemed as our eMail advice of completion, availability and secure links to the location of the video(s) to be downloaded by you. This advice will be made by us within TWO WORKING DAYS of receipt of your fully pre-paid order.
Variations may be requested through email@example.com but we can only undertake to perform those variations if they are requested within a reasonable time before our completion of the original request and the update request has been acknowledge and agreed to by us in writing.
Variations may also be requested, as provided in this Clause, in relation to the issue of proof copies of the completed video file.
We undertake that the Services will be performed substantially in accordance with the Documentation and your clear instruction with all due reasonable skill and care.
The above undertaking will not apply to the extent of any non-conformance which is caused by use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than us or our duly authorised contractors or agents.
If the Services do not conform with the foregoing undertaking, we will use all reasonable endeavours to correct any such non-conformance promptly.
To this end, and to ensure that the final render of your video does meet an acceptable standard, we do however, provide the initial copy of your video by way of a 'proof' so that you can make any changes before the final render.
We will warrant for up to two (2) proof copies, (the initial copy and one (1) more), at no extra cost, but they must only pertain to the aesthetic and visual content caused by excess text length or color selection and not the full context and original meaning of the copy.
If you believe that the final render of your video does meet an acceptable standard, you must lodge written notice of this to firstname.lastname@example.org within 14 days of your initial download. This constitutes our 14 Day Performance Guarantee.
More than two proofs may incur an additional charge of US$25.00 each to cover our additional cost to adjust and re-render the video.
We will always bear any additional costs to adjust and re-render the video however, if we are shown to have been initially at fault.
Such corrections and adjustments constitutes your sole and exclusive remedy for any breach of the undertaking set out above.
Notwithstanding the foregoing, we do not warrant that:
(a) your use of the Services will be uninterrupted or error-free; or that the Services, Documentation, Videos and/or the information obtained through the Services will meet your requirements; and
(b) we are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations under the Contract.
In the event of any loss or damage to your videos stored online, your sole and exclusive remedy against us shall be for us to use reasonable commercial endeavours to restore the lost or damaged Videos from our latest back-up. We are not responsible for any loss, destruction, alteration or disclosure of videos stored on the Services caused by any third party (except those third parties who may be sub-contracted by us to perform services related to maintenance and back-up).
You acknowledge, understand and accept that:
VideoKardz are simply aggregators of a selected range of Third Party hardware, software, websites, services and products, (see "Source Services").
As such, we can have no direct control over the on-going supply, quality and performance of these source services. You further acknowledge, understand and accept that we cannot pass on any greater or lesser risk than if you were to undertake the provision of these services in your own right.
We are unable to accept any claim from you for damages, costs or otherwise in relation to non-performance of these tools and services or any actions whatsoever by those providing Third Parties.
You undertake that:
You will provide us with clear instruction for your required video content with correct spelling and grammar for the chosen language.
You will complete our order form without omission, error or ambiguity and with clear instruction for any required variation.
You will provide us with first quality images and video assets or other assets that may be required for us to complete your order to an acceptable and professional standard.
You will provide us with all necessary co-operation in relation to the contract and all necessary access to such information as we may require from time to time in order to provide the Services.
Without affecting your other obligations under the contract, you will comply with all applicable laws and regulations with respect to your activities under the contract.
You will ensure that as the Authorised User, your use of the Services and the Documentation will be in accordance with the terms and conditions of the Contract and you will be responsible for any breach of the Contract.
You will be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to our Site, 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.
You will pay the full Fees in accordance with the prices applicable to each video and your subscriber group, without subsequent deduction unless specifically agreed by us in writing.
You will defend, indemnify us and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of, or in connection with, your use of the Services and/or Documentation, provided that:
* you are given prompt notice of any such claim;
* we provide reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
* you are given sole authority to defend or settle the claim.
You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, the Contract does not grant you any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Services or the Documentation.
We confirm that we have all the rights in relation to the Services and the Documentation that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of the Contract.
You will (as between us and you) own all right, title and interest in, and to, all of the Customer Materials and you confirm that you have all the rights in relation to the Customer Materials that are necessary to grant all the rights you purport to grant under, and in accordance with, the terms of the Contract.
You grant us a non-exclusive, royalty free licence to use, copy and store the Customer Materials solely for:
* the purposes of performing the Services;
* our own promotional and marketing purposes;
* training purposes; and
* our own internal purposes,
in each case whether such Customer Materials are used, copied or stored on their own, or when incorporated into a Video. Furthermore, you agree that we may refer to you as a VideoKardz user or customer in any of our promotional or marketing material.
Both we and you will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
Where you share any personal data with us (whether your own or of any other person), you warrant and represent that you are lawfully able to share such personal data with us, have obtained all necessary consents, provided the data subject (if relevant) with appropriate notices of such sharing) and that it is true, complete and accurate in all material respects. You agree to indemnify us and keep us indemnified against any and all claims, losses, damages and expenses arising directly or indirectly out of your breach of this clause.
We will process all personal data provided in accordance with our Privacy Notice.
FEES AND PAYMENT
You will pay the Fees in accordance with this clause.
You will on the Effective Date execute a valid non retractable payment through PayPal or any other payment services that we may make available to you, in addition to maintain up-to-date and complete contact and billing details.
Our Fees shall be payable as set out on each product page and according to your applicable Subscriber Group and you hereby authorise us to bill such payment services in advance for the Fees.
If you fail to make clear payment, and without prejudice to any of our other rights and remedies:
* we may, without liability to you, disable your password, account and access to all or part of the Services and we will be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid;
* and interest will accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of our bankers in Australia from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and Fees stated or referred to in the Contract:
* are, non-cancellable and non-refundable save where the Contact may be terminated and refunded by mutual agreement or as prescribed by our third party payment facilitators, or as a result of any applicable Law or Act;
* are exclusive of VAT or GST, which will only be added to our invoice(s) at the appropriate rate should the Laws of our respective Countries require it and any relevant income thresholds for us, as the vendor, are exceeded.
We will be entitled to increase the Fees without notice at any time, however, the pricing for all current Contracts will be maintained and all pre-payments received will be honoured in full.
In no event will we, our employees, agents and sub-contractors be liable to you to the extent that any alleged infringements are based on:
* a modification of the Services or Documentation by anyone other than ourselves; or
* your use of the Services or Documentation in a manner contrary to the instructions given to you by us; or
* your use of the Services or Documentation after notice of the alleged or actual infringement from us or any appropriate authority.
The foregoing state your sole and exclusive rights and remedies, and our (including our employees', agents' and sub-contractors') entire obligations and liability, for infringement of any Intellectual Property Right.
LIMITATION OF LIABILITY
Except as expressly and specifically provided in the Contract:
* you assume sole responsibility for results obtained from the use of the Services and the Documentation by you;
* all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
* the Services and the Documentation are provided to you on an "as is" basis.
Nothing in the Contract excludes our liability:
* for death or personal injury caused by our negligence;
* for fraud or fraudulent misrepresentation; or
* subject to the above clauses:
* we will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
* our total aggregate liability in, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract will be limited to the total Fees paid for the individual Contract on which the claim arose.
TERM AND TERMINATION
The Contract will, unless otherwise terminated as provided in this clause, commence on the Effective Date and will continue until Practical Completion is reached as set out above or unless otherwise terminated in accordance with the provisions of the Contract.
Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of five days after being notified in writing to do so.
On termination of the Contract for any reason:
* all licences granted under the Contract, will immediately terminate and you will immediately cease all use of the Services and/or the Documentation;
* we will be entitled to retain copies of the Customer Material and the video for a period not exceeding seven years for the purpose of our own internal administration;
* any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination will not be affected or prejudiced.
We will have no liability to you under the Contract if we are prevented from or delayed in performing our obligations under the Contract, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control.
We may vary these Conditions from time to time and provide written notice to you within 24 hours of such variation. Such revised Conditions will appear on this page and apply with effect from Contracts entered into with future payments and orders. If you do not accept any such revised Conditions then you should not enter into any future contracts with us.
No other variation of the Contract will be effective unless it is in writing and signed by us (or our authorised representatives).
No failure or delay by us to exercise any right or remedy provided under the Contract or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
RIGHTS AND REMEDIES
Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of the Contract.
The Contract constitutes the entire agreement between you and us, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.
You acknowledge that in entering into the Contract you do not rely on, and will have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
You agree that you will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
Nothing in this clause will limit or exclude any liability for fraud.
You will not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the Contract.
We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Contract.
NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to or will operate to create a partnership between you and us, or authorise either of us to act as agent for the other, and neither of us will have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
THIRD PARTY RIGHTS
The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the doctrine of privity of contract as it may apply under law of Queensland (Australia).
GOVERNING LAW AND JURISDICTION
The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the law of Queensland (Australia).
You irrevocably agree, for our sole benefit that, subject as provided below, the courts of Queensland (Australia) will have exclusive jurisdiction over any dispute or claim (including non-contractual disputes or claims) brought by you arising out of or in connection with the Contract or its subject matter or formation. Nothing in this clause will limit our right to take proceedings against you in any other court of competent jurisdiction, nor will the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
Last Update: 7 May 2021.