These Terms of Service (" Terms ") govern your use of our website located at https://www.bigmouthvoices.com/ (" the Platform ") and any the provision of services or digital goods you may acquire through the Platform.
These Terms form a binding contractual agreement between you, the user of the Platform (“ You ”) and us, BigMouth Limited, a limited liability company duly incorporated in New Zealand, company number 3299388 (NZBN: 9429031194990) having its registered address at 12 Fairmount Road, Titirangi, Auckland, 0604, New Zealand (“ BigMouth Voices ”), referred to collectively as “ the Parties ”.
For that reason these Terms are important and You should ensure that You read them carefully and contact us with any questions before You use the Platform. You can contact us via [email protected]
By using the Platform, and/or by Registering on the Platform, You acknowledge and agree that You have had sufficient chance to read and understand the Terms and You agree to be legally bound by them. If You do not agree to the Terms, please do not register or use the Platform.
Where You acquire services or digital goods without direct use of the Platform, You may be asked to confirm these Terms prior to completing Your purchase. In such cases, these terms shall apply (with any necessary modification).
1.1. BigMouth Voices grants You a non-exclusive, worldwide, non-transferable licence to use the Platform in accordance with the Terms. Any use of the Platform for any purpose not permitted by these Terms is expressly prohibited, including any copying of the Platform (including its code, copyright, or any part thereof) and constitutes a serious breach of these Terms.
1.2. Subject to clause 1.1, You may access and use the Platform in the normal manner (including any transient incidental copying that occurs as part of normal use) and may also print one copy of any page within the Platform for Your own personal, non-commercial use.
1.3 You acknowledge and agree that:
BigMouth Voices retains complete editorial control over the Platform and may alter, amend or cease the operation of the Platform at any time in our sole discretion; and
the Platform may not operate on a continuous basis, and may be unavailable from time to time (including for maintenance purposes). BigMouth Voices is under no obligation and gives no assurance to You that the Platform will continue to operate at any particular time, or be maintained, used, or developed in any particular manner; and
BigMouth Voices may revoke Your licence to use the Platform at any time without cause on a case by case basis; and
BigMouth Voices shall not be liable to You in consequence of any subclause of clause 1.3 (including but not limited to for any loss of opportunity or loss of data).
2.1. You may seek to licence or purchase Voicework services and digital products via the Platform (“ Voicework ”). You acknowledge that BigMouth Voices acts as the agent for individual talent (“ Voices ”) and that Your contractual relationship is with BigMouth Voices and not the Voices that may ultimately provide You with Voicework. In the event you subsequently enter into a direct contractual relationship with the Voice, you agree that the terms of any such agreement are subject to these Terms, such that in the event of any conflict these Terms prevail.
2.2. BigMouth Voices make no guarantees regarding the availability of a particular voice or regarding supplying You with Voicework. The availability of specific Voices, delivery timeframes, any rights to the Voicework (if any) that you may wish to licence or purchase, and the applicable fee, are all negotiable on a case by case basis, and each is subject to these Terms.
2.3. These Terms are to be read with the instructions and protocols outlined on the Platform and updated from time to time, which are hereby incorporated into these Terms.
2.4. Platform & agency priority: Where the Voice you wish to use for Voicework is represented on both the Platform and other authorised platforms, then provided you used the Platform at all in respect of that Voicework (such as to review the Voice’s work or profile, or post the request for the Voicework, or check availability and so forth) then you hereby agree to engage the Voice, and complete and pay for the Voicework, exclusively via the Platform (in priority and exclusion to any other competing platform or booking service), unless otherwise agreed in writing.
3.1. Except as explicitly provided for, nothing in these Terms constitutes a grant, transfer, or licence to You of any intellectual property rights in the Platform or the Voicework.
3.2. You acknowledge and agree that BigMouth Voices exclusively owns all intellectual property rights in the Platform.
3.3. Where You licence or purchase Voicework through the Platform:
Your use, licence, or ownership of any intellectual property in the Voicework (if any) is limited to the specific terms mutually agreed upon final presentation of invoice, and may only be subsequently changed or varied by mutual agreement in writing. Unless expressly agreed in writing, Voicework services are provided on limited commercial licence terms, and do not include exclusive, perpetual, irrevocable, or worldwide rights to use the Voicework or parts thereof.
When creating a job order via the Platform, You may choose and select the specific type of licence/s You wish to acquire to the Voicework. Licences vary, and may (for instance) include different periods of use, manners and mediums of publication, territories, and recording lengths. Different licences attract different fees.
Any agreed usage or intellectual property rights licenced or purchased by You via the Platform in the Voicework (including any recording of any audition, guide read, raw or edited performance by any Voices, or any part thereof), shall pass to You only on completion of the job and full payment being received by BigMouth Voices.
In this context “Voicework” does not refer to any pre-existing intellectual property You or third parties may have a claim to in, for instance, the underlying script, music, ideas, presentation, video, animation or other elements that may be combined with the Voicework (“ Other Elements ”). We agree therefore that, unless explicitly provided for, these Terms do not constitute a transfer to BigMouth Voices or the Voices of any pre-existing intellectual property owned by You or third parties in the Other Elements.
3.4. Unless explicitly agreed otherwise, we retain an irrevocable non-exclusive licence to use any Voicework that You have licenced or purchased through the Platform, in its final form and for the limited purpose of promoting BigMouth Voices’ services or Voices on the Platform and in other promotional materials generated from time to time by BigMouth Voices (subject to any obligations of confidence or privacy). For that same limited purpose and use, and subject to any reasonable limits, You also grant to BigMouth Voices any necessary licences (on a non-exclusive basis) to host or display the Other Elements insofar as they are combined with the Voicework in its final form and intended or permitted for external use.
4.1. “Confidential information” means all non-public information that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. For the avoidance of doubt, confidential information includes all information relating to:
any/all agreements between the Parties;
the business affairs and financial or commercial arrangements of the Parties (including their related parties and affiliates);
c. the Voicework or other services or products supplied by BigMouth Voices;
4.2 The Parties agree to treat commercially sensitive, confidential, and personal information with the utmost confidentiality, and in accordance with the following:
Non-Disclosure: The Parties will not, except with prior written consent of the other Party, either directly or indirectly use, copy, publish, or disclose to any unauthorised person, nor cause or permit to be used, copied, or disclosed to any unauthorised person, any Confidential information.
Permitted Uses: The Parties may use all or part of the Confidential Information, strictly in a confidential manner, only to: a) privately pursue their business relationship with one another; b) obtain professional advice from their legal or financial advisors; and c) for any other limited purposes and to the limited extents agreed by the Parties in writing.
4.3. Public Statements: In relation to publicity or any public statements permitted under these Terms, both Parties agree to refrain from making any public derogatory statements or references concerning each other (including their related parties and affiliates), the Voicework, or the Voices.
5.1. When Voicework is delivered through the Platform, Fees are secured in advance by credit card authorisations, prior to completion and supply of Voicework. When Voicework is delivered other than through the Platform Fees are payable upon receipt of invoice, and must be paid in accordance with any due date specified in the invoice.
5.2. “ Fee/s ” comprises (together):
“ Voice Fee ” – the fee payable to the Voice/s for the Voicework; and
“ Agency Fee ” – the fee payable to BigMouth Voices for booking management and agency services.
5.3. The Fee payable by You in respect of a Voicework shall vary depending on the nature of the Voicework and the type of licence sought and acquired. Fee rates for licences are specified on the Platform from time to time (which are subject to change by BigMouth Voices without notice), or may be quoted to You in writing.
5.4. Once BigMouth Voices has presented You with an invoice, the applicable Fee becomes binding, and may only be varied by mutual agreement in writing. Should the Parties subsequently agree to a change in final usage of the Voicework or to a change in the choice of Voice, then the Fee may also change correspondingly subject to mutual agreement in writing (and in accordance with BigMouth Voices’ then current rate card, or rates specified on the Platform from time to time).
5.5. Unless authorised by BigMouth Voices in writing, use of the Voicework either beyond the terms of the licence granted, or beyond the Terms of this agreement, is a violation of the licence and these Terms. You agree in such circumstances that in respect of any usage additional to the licence granted:
You are liable for immediate payment of a Fee for the additional unauthorised usage, which You agree is fixed at the greater of either:
BigMouth Voices’ current rate-card plus 15% premium; or
on a pro-rated basis (i.e. the original fee is increased in ratio to the unauthorised increased usage) plus 15% premium.
You agree that such payment is payable on demand and subject to clause 7.1 (default interest) from the date of breach.
At BigMouth Voices’ sole discretion, You must immediately desist all further unauthorised uses of the Voicework unless BigMouth Voices agrees to additional licencing terms.
This clause does not limit in any way any other legal or equitable remedies BigMouth Voices or the Voices may have at law or equity for a breach of the terms of licence and/or these Terms.
6.1. Payments for Voicework must be made through the Platform, or other method nominated by BigMouth Voices, and not direct to Voices.
6.2. You will not circumvent the Platform booking and/or payment procedures, and doing so will bar You from future use of the Platform, and be an actionable wrong.
6.3. BigMouth Voices acts as agent representing its Voices for Voicework. Voices’ contact details may be shared with you in strict confidence and strictly for the purpose of facilitating Voicework via BigMouth Voices and the Platform. Should you wish to utilise a Voice again for new Voicework, you agree to engage the Voice only through BigMouth Voices and the Platform, and not to engage the Voice directly.
7.1. In the event payment remains outstanding for Voicework, payment is due on demand and subject to a penalty interest rate of five percent (5%) per month compounding monthly (equivalent to an annual interest rate of 79.58).
7.2. If debt collection is required, You accept liability for all debt collection costs, including legal fees on a solicitor-client basis.
8.1. To the full extent permitted by law, BigMouth Voices excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
8.2. To the full extent permitted by law, BigMouth Voices excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in these Terms. For the avoidance of doubt, BigMouth Voices is not liable for any actions or omissions of a Voice. While we do our best to ensure your satisfaction, BigMouth Voices cannot guarantee or warrant the quality of any Voicework.
8.3. These Terms are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, BigMouth Voices limit our liability in respect of any claim to, at our option:
in the case of goods:
replacement of the goods, or the supply of equivalent goods, or repair of the goods;
the payment of the cost of replacing the goods, or of acquiring equivalent goods, or having the goods repaired, and
in the case of services:
supply of the services or equivalent services again; or
payment of the cost of having the services or equivalent services supplied again.
8.4. To the full extent permitted by law, BigMouth Voices exclude liability for any consequential loss.
9.1. Either Party may terminate these Terms where there has been a material breach by the other Party and the breaching Party fails to reasonably remedy the breach within 10 working days of receiving written notice from the other Party requiring the breach to be remedied. In the case that the obligations are still not reasonably performed within the 10 working day period, then the non-breaching Party shall have the right from the expiry of that date to terminate the Agreement.
9.2. Notwithstanding clause 9.1, BigMouth Voices may terminate these Terms:
for any reason by giving 1 day’s written notice, effective upon expiry of that notice period; and/or
in the case of a serious breach, by giving written notice to You effective immediately upon giving that notice.
10.1. Your obligations under these Terms survive termination or expiry, to the fullest extent permissible by law. Without limiting the former, the Parties acknowledge and agree that following clauses survive termination: 3 (intellectual property), 4 (confidentiality), 5-7 (fees, payment, & default)), 8 (liability), 11 (general), 12 (dispute resolution).
10.2. Without prejudice: The termination or expiry of the Terms of this agreement will be without prejudice to the rights and obligations of the Parties immediately before termination. For the avoidance of doubt, upon termination or expiry:
IP: Clause 3.2 (c) applies, such that no right, property or licence in the Voicework is transferred or granted to You until such time as payment of the Fee is received.
Other rights retained: Any rights retained or granted to BigMouth Voices in relation to the Voicework or the Other Elements (or any part thereof completed), and any waivers, consents, or indemnities granted in favour of BigMouth Voices, shall be retained and shall continue in effect.
Fees: Your obligation to pay any Fees shall survive to the extent those fees have become payable under these Terms prior to termination becoming effective. For the avoidance of doubt, if a booking has been confirmed prior to termination and the Voicework has been or will be recorded by the booked Voice then the full Fee is payable.
10.3. Cessation of Platform: If, for any reason, BigMouth Voices ceases to operate the Platform, any offer or offer to treat ceases prospectively from the time the Platform ceases. However, unless mutually agreed otherwise, any such event does not constitute a repudiation, termination, or cancellation of these Terms, and shall be without prejudice to any rights and obligations of the Parties (whether contained in these Terms or any other agreement between the Parties) in force immediately prior to the cessation of the Platform. Unless specified in these Terms, such rights and obligations shall continue in force notwithstanding any cessation of the Platform.
11.1. Assignment: You may not assign, sublicence or otherwise deal in any other way with any of Your rights under these Terms.
11.2. Partial Invalidity: If any provision of these Terms are held to be invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
11.3. Additional Steps: Each party must at its own expense do everything reasonably necessary to give full effect to these Terms and the rights, obligations, and events contemplated by it.
11.4. Applicable law: These Terms are governed by the laws of New Zealand and each party submits to the exclusive jurisdiction of the courts of New Zealand. Subject to clause 12, the parties agree that the Proper Court in this matter is the Auckland District or High Court, depending on the level of the dispute.
11.5. Entire Agreement: These Terms represent the entire agreement between the Parties regarding their subject matter, and supersede any/all prior discussion, understanding, or agreement (whether oral or written) between the Parties regarding that subject matter. No amendments or alterations shall be binding unless made in writing signed by both parties.
11.6. No Implied Waiver: Any failure, delay, neglect, forbearance, exercise or partial-exercise by either Party to enforce any of the rights or require performance of any provision under this Agreement, shall not be deemed to waive, prevent, or otherwise prejudice that Party’s rights, nor affect that Party’s ability to enforce any provision of the Agreement at a subsequent time. Each right and/or remedy is cumulative and shall not be construed as exclusive of any other right or remedy existing in this Agreement or otherwise available at law or equity. No waiver constitutes a continuing waiver unless otherwise expressly provided.
11.7. Notices: All notices required under these Terms shall be in writing, and shall be deemed to have been served:
if delivered to the Party personally, at the time of personal delivery;
if posted to the Party either at an address for service provided by them in writing, or at their registered office, then at the time of actual delivery to that postal address;
if emailed to the Party at their official email addresses (below), at the time recorded by the sender as being sent (provided that the sender does not receive any error message relating to the sending of the email within 36 hours of sending):
(for BigMouth Voices) [email protected]
(for You) any email address/es recorded against Your name from time to time on the Platform.
12.1. If any dispute, issue, disagreement, or claim arises out of or in relation to the Terms (including in relation to their application, operation, or interpretation) (“the Dispute”), the Parties agree to the following dispute resolution process. Neither Party shall commence any Court or arbitration proceedings relating to a Dispute unless that Party has first complied with this clause.
12.2. Notice: The Party raising the Dispute will give written notice to the other Party of the nature of the Dispute, and (if applicable) of any specific resolution or outcome desired.
12.3. Good Faith Negotiations: Within 3 working days from receipt of the above notice (or within 24 hours if delay would unreasonably or materially prejudice a Party) the Parties will convene for an initial meeting to discuss the Dispute (“the Initial Meeting”), either in person, or by telephone / video conference. At the Initial Meeting, the Parties agree to discuss the Dispute in good faith and to seek a fair resolution. The Parties may each have a support person or representative present. The Parties may mutually agree to permit any other third party to be present. Any agreed resolution must be in writing and signed by both Parties.
12.4. Mediation: If the Parties have not reached agreement on the Dispute within 10 working days of first convening the Initial Meeting (or within 48 hours if delay would materially prejudice either Party) then unless the Parties mutually agree in writing to extend the time for good faith negotiations the Dispute will be submitted to mediation.
12.5. Arbitration: If mediation expires and the Parties have not reached an agreed resolution to the Dispute, then unless the Parties mutually agree in writing to extend the time for mediation or good faith negotiations, or to use and agree a process for expert determination, either Party may submit the Dispute to arbitration only.
12.6. Appointment: Any such mediation and/or arbitration shall be conducted by a sole-mediator or arbitrator chosen, and at a fee agreed, mutually by the Parties in writing. Failing agreement, either Party may request AMINZ to appoint an independent mediator or arbitrator (as applicable). The mediator or arbitrator shall set a timetable (having regard to any urgency or industry or business exigencies), including a date for expiry of the mediation process. Any arbitration shall proceed in accordance with and subject to the Arbitration Act 1996, and the decision shall be final and binding.
12.7. Location: Unless otherwise agreed, any such mediation or arbitration shall take place in Auckland, New Zealand or may take place via teleconference or videoconference. Failing agreement by the Parties as to a specific location, time, or venue, these shall be determined by the mediator or arbitrator so appointed.
12.8. Costs: Unless stipulated otherwise by the arbitrator, or agreed otherwise by the Parties, the Parties shall share the costs of the mediator and/or arbitrator equally, but shall each bear their own costs incurred in the mediation/arbitration.
12.9. Without prejudice: All discussions during good faith negotiations and/or mediations are without prejudice and may not be referred to in any subsequent arbitration or legal proceedings.
12.10. Interlocutory relief: nothing in this clause will prevent a Party from taking appropriate timely steps to seek urgent interim relief before an appropriate Court.