Terms and Conditions
SMOOTHWEB TECHNOLOGIES LIMITED, ‘VOICEii API AGREEMENT’
THIS SMOOTHWEB TECHNOLOGIES ‘VOICEEii API AGREEMENT (“AGREEMENT”) IS A LEGALLY BINDING AGREEMENT BETWEEN SMOOTHWEB TECHNOLOGIES LIMITED (operating as VOCIEii”) AND THE PERSON AGREEING TO THESE TERMS (“YOU”). IF YOU USE OR ARE ENGAGING IN ACTIVITIES UNDER THIS AGREEMENT FOR A BUSINESS OR CORPORATE ENTITY (“COMPANY”), WHETHER AS AN EMPLOYEE OR CONTRACTOR, THE TERM “YOU” INCLUDES, AND THE TERMS AND CONDITIONS HEREOF ARE BINDING ON, BOTH YOU AS AN INDIVIDUAL AS WELL AS SUCH COMPANY. IN ADDITION, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY, AND THAT SUCH COMPANY HAS AUTHORIZED YOU TO ACCEPT THE TERMS OF THIS AGREEMENT ON ITS BEHALF.
SMOOTHWEB TECHNOLOGIES IS WILLING TO PROVIDE A LICENSE TO ITS API AND API MATERIALS (EACH DEFINED BELOW) TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT, AGREE TO AND COMPLY WITH ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. BY CLICKING THAT YOU ACCEPT THESE TERMS OR BY USING THE API, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS YOU WILL NOT ACCESS, AND WILL ENSURE THAT YOUR CONTRACTORS WILL NOT ACCESS, ANY API MATERIALS.
1. DEFINED TERMS. In addition to other terms that may be defined herein, the following terms, when capitalized and in singular or plural form, as appropriate, will have the meanings set forth as follows:
1.1 “Affiliates” means any present or future corporation or other Entity that controls, is controlled by or is under common control with a party (where control means (i) ownership of more than 50% of the shares, equity interest, or other securities entitled to vote for the election of directors, or (ii) the authority to direct management).
1.2 “API” means an application programming interface that Smoothweeb Technologies provides or otherwise makes available to You in connection with the other API Materials or the VOICEii Service provided hereunder.
1.3 “API Materials” means each API and all Documentation and Software, collectively.
1.4 “Application” means each software application You develop, or have developed on Your behalf by Your Contractor(s), with or in connection with the API Materials, which application is intended to be distributed for download or installation by end-users for use on electronic devices or other consumer products.
1.5 “Contractor” means Your independent contractor who develops or distributes an Application on Your behalf and who agrees to be bound by the terms of this Agreement.
1.6 “Documentation” means documentation that Smoothweb Technologies provides or otherwise makes available to You in connection with the Solution.
1.7 “Entity” means any corporation, general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, limited liability company, firm, association, organization, or other legal entity.
1.8 “VOICEii Service” means the digital platform provided by Smoothweb Technologies mobile devices, using the sound of their voices or text search.
1.9 “Intellectual Property Rights” means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, right of privacy, authors’ rights, contract, and licensing rights, goodwill, and all other intellectual property rights as may exist now or hereafter come into existence and all renewals and extensions thereof, worldwide.
1.10 “Key” means a unique alpha-numeric code, issued by Smoothweb Technologies, specific to a particular Application that enables a particular feature or set of features in such Application.
1.11 “Recordings” means audio recordings of end-users’ voice interactions with an Application, including searches for information that are conducted by voice, responses given by voice to Application prompts, and instructions or commands given by voice to control the Application.
1.12 “Site” means the Smoothweb Technologies website located at https://www.voiceii.com.
1.13 “Software” means (i) the software provided to You by Smoothweb Technologies and licensed under this Agreement, including the software development kit(s) for certain features, related libraries and headers, and certain sample application(s) in human-readable (source code) form or binary form; and (ii) additional software, if any, that Smoothweb Technologies provides to You relating to the VOICEii Service. The contents of the Software may vary by feature and for platform-specific versions.
2. LICENSE GRANTS.
2.1 API Key. Before accessing the API Materials You must first request a Key. A Key will be generated for You when You provide the information requested for signing up a new Application. You may reproduce and distribute the Software in object code form solely as part of Your Application only if You have obtained a Key. Each Key issued may only be used with a single Application. You may be required to go through an approval process in order to obtain a Key. Smoothweb Technologies may, in its sole discretion, withhold its approval, and decline to provide You a Key for any reason or no reason. Smoothweb Technologies has the right to monitor Your use of the Key and Your Application to ensure Your use is in compliance with this Agreement (a “Permitted Purpose”). If used other than for a Permitted Purpose, in accordance with Section 13.1, Smoothweb Technologies has the right to immediately revoke the Key.
2.2 License to API. Subject to and conditioned upon Your compliance with the terms and conditions set forth in this Agreement, Smoothweb Technologies hereby grants to You a personal, non-exclusive, non-sublicenseable (except as set forth below in Section 2.3), non-transferable, revocable license during the Term (defined below), to access and use the API Materials in accordance with the Documentation and this Agreement solely for the purposes of developing and testing an Application for use with the API and making the Application available to the public.
2.3 Sublicense Rights. Subject to and conditioned upon Your compliance with the terms and conditions of this Agreement, Smoothweb Technologies hereby grants to You a personal, non-exclusive, non-sublicensable, non-transferable, revocable license, during the Term to sublicense the license rights set forth in Section 2.2 solely to Your Contractors for the sole purpose of developing and distributing Applications on Your behalf, provided that (i) any sublicense rights granted to any such Contractor by You pursuant to this Section 2.3 may be granted on a single-tier basis only, without further sublicense rights; and (ii) You will be responsible and liable for the acts and omissions of Your Contractors, including their compliance with this Agreement as if such acts or omissions were Your own acts or omissions.
2.4 Alpha/Beta Releases. If the API Materials provided to You under this Agreement are designated by Smoothweb Technologies as an “alpha” or “beta” release You acknowledge that any such API Materials are a prerelease or experimental version and may not be at the level of performance and compatibility of a final product. The API Materials may not operate correctly and may be substantially modified or withdrawn completely by Smoothweb Technologies. You will not and will ensure that Your Contractors do not, do any significant development or testing using alpha or beta versions of the API Materials. Any development You undertake with an alpha or beta version of the API Materials is at Your sole risk.
2.5 Copies. In addition to any rights expressly provided above, subject to and conditioned upon Your compliance with the terms and conditions of this Agreement, You may, and You may permit Your Contractors to, make a reasonable number of copies of the Software only for backup purposes, provided that You (or Your Contractors, as the case may be) reproduce all copyright and other proprietary notices that are on the original copy of the Software. You will not and will ensure that Your Contractors do not make more copies of the Software than specified in this Agreement.
2.6 Third Party Programs. The Software may contain third-party programs, including software licensed under open source terms. The license terms associated with those programs apply to Your use of them, and in some instances, such programs cannot be used or further distributed without a license from the respective owner of such programs. The delivery of the Software does not convey a license, nor imply any rights, to use third party programs. A separate and independent license for such use may be required and You are solely responsible (i) to verify whether such license is needed in conjunction with Your use of such third party programs and (ii) for obtaining any necessary license from such owner with respect to any such use. If applicable, certain third-party notices may be made available at https://voiceii.com/ or accompanying the Software (e.g., available in the Software readme files).
2.7 Retention of Rights. The API Materials are licensed and not sold to You. You acknowledge and agree that nothing in this Agreement will convey, assign or otherwise transfer to You, Your Affiliates, or Your Contractors any title or ownership rights in any part of the API Materials or the VOICEii Service.
3. PROVISION OF API.
3.1 Smoothweb Technologies reserves the right to modify the API and the API Materials and to release subsequent versions of the API, in accordance with the remainder of this Section 3. You acknowledge and agree that You may be required to obtain and use the most recent version of the API in order for Your Application to continue to function with the API and the VOICEii Service.
3.2 In the event of an emergency, critical failure, suspected critical failure, loss of license, or a security breach, without limiting any other right of Smoothweb Technologies hereunder, Smoothweb Technologies reserves the right to modify, suspend or discontinue the API and the VOICEii Service at any time without notice or liability to You.
3.3 In all other cases not covered by Section 3.2 above, should Smoothweb Technologies elect to modify or suspend the API due to a planned change, it will use commercially reasonable efforts to give You no less than 5 business days’ written notice of any such modification or suspension.
3.4 You agree to provide Smoothweb Technologies with access to Your Application and other materials related to Your use of the API as reasonably requested by Smoothweb Technologies in order for Smoothweb Technologies to verify Your compliance with this Agreement. You agree that Smoothweb Technologies may survey Your Application and You will not block or interfere with such efforts.
3.5 You acknowledge and agree that the collection, processing, storage, transfer, and use through the API by Smoothweb Technologies of Recordings are required in order for Smoothweb Technologies to provide the VOICEii Service to You and Your end-users, and You acknowledge and agree that Smoothweb Technologies has the rights under this Agreement to collect, process, store, transfer and use Recordings for the purposes set forth in this Agreement.
3.6 Smoothweb Technologies has no obligation to provide users or end-users of Your Application with support, software upgrades, enhancements, or modifications to the API. You acknowledge and agree that You are solely responsible for providing user and end-user support and any other technical assistance for Your Application.
4.1 Permissions. You represent and warrant to Smoothweb Technologies that You have obtained and will maintain all necessary rights, permissions, and licenses, if any, in content, material, data, Recordings or code appearing, used, stored, recorded, or displayed in or using any of the Applications and that the Applications will be in full compliance with all terms of applicable platform requirements (e.g., terms imposed by Apple and Google on developers and parties utilizing their respective technology platforms, marketplaces, etc.). If You are using third party IDs or other third party services or offerings (each, a “Third Party Service”) to interact with the API Materials or VOICEii Service, You must at all times be in compliance with all agreements, policies, and other terms applicable to use of those Third Party Services.
4.2 Application Restrictions. You do not have any right under this Agreement to use any part of the API Materials in conjunction with any other voice recognition software, or permit Your Application to use any other voice recognition services if it uses the VOICEii Service. Additionally, You agree that You will not, and Your Contractors will not, directly or indirectly:
4.2.1 modify, adapt, translate, decompile, disassemble, reverse engineer, reverse assemble, analyze or otherwise examine, prepare derivative works of, modify, or attempt to derive source code from the VOICEii Service or API;
4.2.2 include any viruses, worms, Trojan horses, or any other harmful code that could, in Smoothweb Technologies’ sole discretion, affect the VOICEii Service or API Materials;
4.2.3 copy, distribute, reproduce, sell, resell, lend, lease, rent, use, or allow access to the VOICEii Service or API Materials except as explicitly permitted under this Agreement;
4.2.4 use any content available through the API to populate any other sites, applications, or services or to create a service substantially similar to the VOICEii Service;
4.2.5 interfere or attempt to interfere in any manner with the proper functioning of the VOICEii Service or API;
4.2.6 use the VOICEii Service or API for any illegal or unauthorized purpose, including the unlawful distribution of the API Materials or the infringement, violation, or misappropriation of any third party’s Intellectual Property Rights or other proprietary rights;
4.2.7 remove, obscure, or alter any notice of patent, copyright, trademark, or other proprietary right appearing on the VOICEii Service or in any API Material;
4.2.8 access any undocumented feature of the API, or use any documented feature of the API other than for its intended purpose;
4.2.9 attempt to conceal Your personal identity or Your Application’s identity when requesting authorization to use the API;
4.2.10 knowingly use the VOICEii Service or API in a manner that adversely impacts the stability of Smoothweb Technologies’ servers or the VOICEii Service or adversely impacts the performance of the VOICEii Service or API for other clients or applications using the VOICEii Service or API, in Smoothweb Technologies’ sole determination;
4.2.11 use the API in such a way that knowingly harms, misuses, or brings into disrepute the VOICEii Service or Smoothweb Technologies brands, trademarks, logos, or names;
4.2.12 exceed the amount of bandwidth, storage or processing power as determined by Smoothweb Technologies in its sole discretion or use the API in a manner that exceeds any quota limitations as set by Smoothweb Technologies in its sole discretion;
4.2.13 include content or materials (text, graphics, images, photographs, video, sounds, etc.) in Your Application that comprise, constitute or depict any of the following: (i) profanity, nudity, pornographic or obscene images or explicit sexual themes; (ii) defamatory, libelous, racist or discriminatory statements; (iii) material that is unnecessarily violent or dangerous to use; or (iv) material that is illegal or objectionable;
4.2.14 store any Recordings locally on an end user’s mobile device or on any servers or other memory drives that are not Smoothweb Technologies servers or memory drives (all Recordings must be sent to Smoothweb Technologies); or
4.2.15 conduct any benchmark or stress tests, cause or permit automated queries on the API or publish any performance data relating to the API or the VOICEii Service.
4.3 License to Smoothweb Technologies. You hereby grant to Smoothweb Technologies and Smoothweb Technologies Affiliates a non-exclusive, royalty-free, worldwide license during the Term under all of Your Intellectual Property Rights, to use, reproduce, display, and execute all of Your Applications for (i) internal review and the development and testing of the API; and (ii) demonstrations of such API, its capabilities or functionalities, to third parties. Further, Smoothweb Technologies and its Affiliates may display in any media whatsoever Your name, the name of the Applications, and any marks or logos associated with the Applications for purposes of marketing and promoting Your Application and the products and services of Smoothweb Technologies and its Affiliates.
4.4 Mandatory End-User License Agreement Clauses. You will include, in a mandatory end-user license agreement for each of Your Applications, whether in an agreement between You and an end-user (where You license Your Application directly to end-users) or in an agreement between You and the licensor/distributor of Your Application (where the licensor/distributor is a Contractor), legally enforceable provisions that are appropriate to Your Application, that obtain all necessary licenses, rights, consents, and permissions (in the Recordings and otherwise) from the end-user of the Application and that comply with all applicable laws, rules, and regulations, and that includes:
4.4.1 All terms, disclosures, and information necessary to comply with the terms of this Agreement
4.4.2 Each end user’s consent to the collection, processing, storage, and use by Smoothweb Technologies and its Affiliates and service providers of data, expressly including Recordings, from the API and the transfer of data, expressly including Recordings, to and between Smoothweb Technologies and its Affiliates and service providers (which may be in Hong Kong or in other countries), in each case for the purposes of (i) providing the VOICEii Service to You and Your end-users, (ii) facilitating the provision of new products, updates, enhancements, and other services, (iii) improving the API and the VOICEii Service, and (iv) providing new products, services or technologies to You, Your end-users and customers of Smoothweb Technologies and its Affiliates;
4.4.3 Each Application end user’s grant to Smoothweb Technologies of an irrevocable, perpetual, non-exclusive, transferable, royalty-free, sublicensable, worldwide license during the term of the agreement between You (or, as applicable, the licensor/distributor of Your Application, where You are a Contractor) and that end user, to use, modify, reproduce, publicly display, publicly perform, distribute, store, collect, copy, transmit, transfer, process and make derivative works of that user’s Recordings, including (i) to provide the VOICEii Service, (ii) to facilitate the provision of new products, updates, enhancements, and other services, (iii) to improve the API and the VOICEii Service, and (iv) to provide new products, services or technologies to You, Your end-users and customers of Smoothweb Technologies and its Affiliates;
4.4.4 Each Application end-user’s acknowledgment and agreement that You do not and will not guarantee that Smoothweb Technologies will delete or de-identify copies of the end user’s Recordings, and Smoothweb Technologies may retain archival or server copies of the Recordings;
4.4.5 An advisory to the end-user that Your Application may incur data usage charges in varying amounts, based on variable factors which include the number of interactions of Your Application with the Solution (as defined in Section 10.1); and
4.4.6 An advisory that Your Application is not suitable for emergency uses and relies on software that may not comply with Hong Kong regulations.
4.5 You hereby consent and agree to receive updates about products and services, promotions, special offers, news and events from Smoothweb Technologies, its Affiliates and other third parties by email, regular mail, text, phone or other electronic means.
5.1 Pricing. Certain features of the VOICEii Service may require You to pay fees. Before You pay any fees, You will have an opportunity to review and accept the fees that You will be charged. All fees are non-refundable. For those features that require payment of fees, You agree to pay Smoothweb Technologies the fees specified on the pricing page made available at
All fees payable to Smoothweb Technologies must be paid in accordance with the terms and conditions contained on the website. Smoothweb Technologies will make reasonable efforts to keep pricing information published on ‘the Pricing Page’ up to date. Smoothweb Technologies encourages You to check the Pricing Page periodically for current pricing information. Smoothweb Technologies may change the fees for any feature of the VOICEii Service, including additional fees or charges, if Smoothweb Technologies gives You advance notice of changes before they apply. Smoothweb Technologies, at its sole discretion, may make promotional offers with different features and different pricing to any of Smoothweb Technologies customers. These promotional offers, unless made to You, will not apply to Your offer or this Agreement. Except as otherwise provided on the Pricing Page, any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. You will reimburse any costs or expenses (including reasonable attorneys’ fees) incurred by Smoothweb Technologies to collect any amount that is not paid when due. All amounts payable under this Agreement are denominated in United States dollars, and You will pay all such amounts in United States dollars. You agree that Smoothweb Technologies may suspend Your access to the VOICEii Service if You fail to timely pay fees due to Smoothweb Technologies.
5.2 Authorization You authorize Smoothweb Technologies to charge all sums for the orders that You make and any paid feature of the VOICEii Service that You select as described in this Agreement or published by Smoothweb Technologies, to the payment method specified in Your account. If You pay any fees with a credit card, Smoothweb Technologies may seek pre-authorization of Your credit card account prior to Your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Your purchase.
5.3 Subscription Service. Paid features of the VOICEii Service may be structured to include automatically recurring payments for periodic charges (“Subscription Service”). If You activate a Subscription Service, You authorize Smoothweb Technologies to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when You purchase Your first subscription to the VOICEii Service. For information on the “Subscription Fee,” please see the Pricing Page. Your account will be charged automatically on the Subscription Billing Date all applicable fees for the next subscription period. The subscription will continue unless and until You cancel Your subscription or Smoothweb Technologies terminates it. You must cancel Your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to Your account. Smoothweb Technologies will bill the periodic Subscription Fee to the payment method You provide to us during registration (or to a different payment method if You change Your payment information). You may cancel the Subscription Service by clicking the “unsubscribe” link in Your account or by contacting us at: firstname.lastname@example.org
5.4 Delinquent Accounts. You must not, and must ensure that Your Contractors do not, access or use for any purpose any API other than such APIs as are expressly described in the Documentation.
6. SOFTWARE RESTRICTIONS
6.1 The licenses to the Software granted to You hereunder are solely for the limited purposes set forth in Section 2 (License Grants). The Software, including the Documentation, shall not be used for any other purpose or use.
6.2 Except as expressly permitted in Section 2, You must not, and must ensure that Your Contractors do not, reproduce, distribute, publicly perform, publicly display or create derivative works of or based on the Software, or disclose, rent, lease, loan, provide or otherwise transfer, in any manner, to any third party the Software, Documentation or any portion thereof.
6.3 Excepting any portions of the Software provided to You in source code format, and excepting any third party code distributed with the Software that is licensed under contrary terms, You will not reverse engineer, disassemble, decompile or translate the Software or any portion thereof, or otherwise attempt to derive the source code version of the Software, except if and to the extent expressly permitted under any applicable law. If applicable law expressly permits such activities, any information so discovered or derived shall be deemed to be the confidential proprietary information of Smoothweb Technologies and must be promptly disclosed by You to Smoothweb Technologies.
6.4 You must not, and must ensure that Your Contractors do not, access or use for any purpose any API other than such APIs as are expressly described in the Documentation.
6.5 You must not, and must ensure that Your Contractors do not, use the Software to create or develop any developer tools (including plug-ins and middleware) or any software other than end-user targeted Applications.
6.6 You must not, and must ensure that Your Contractors do not, use any part of the Solution to do anything which degrades or otherwise negatively impacts Smoothweb Technologies’ product or services.
6.7 You must not, and You must ensure that Your Contractors do not, incorporate, link, distribute or use any third-party software or code in conjunction with (i) the Software (ii) any software, products, documentation, content, or other materials developed using the Software, or (iii) any derivative works that You make using the source code portions of the Software (if any), in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to the Software, including the distribution or disclosure of any source code; or (b) grants, purports to grant or has the potential to grant to any third party any rights to or immunities under any Intellectual Property Rights or proprietary rights of Smoothweb Technologies or its Affiliates, including as such rights exist in or relate to the Software. Without limiting the generality of the foregoing, You must not, and You must ensure that Your Contractors do not, incorporate, link, distribute or use (1) the Software, (2) any software, products, documentation, content or other materials developed using the Software, nor (3) any derivative works that You or Your Contractor make using the source code portions of the Software (if any), with any code or software licensed under any version of the GNU General Public License (“GPL”), Affero General Public License (“AGPL”), Lesser General Public License (“LGPL”), European Union Public License (“EUPL”), Apple Public Source License (“APSL”), Common Development and Distribution License (“CDDL”), IBM Public License (“IPL”), Eclipse Public License (“EPL”), Mozilla Public License (“MPL”) or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Software (or any modifications thereto) to become subject to the terms of the GPL, AGPL, LGPL, EUPL, APSL, CDDL, IPL, EPL, MPL or such other open source license. You, Your Contractor, and each party receiving Software or any copies thereof from You or Your Contractor, do not receive any rights to use such Software or copies thereof in a manner that will cause any patents, copyrights, or other Intellectual Property Rights which are owned or controlled by Smoothweb Technologies or any of its Affiliates (or for which Smoothweb Technologies or any of its Affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any third party or open source license (including any open source license listed on http://www.opensource.org/licenses/alphabetical)
(each an “Open Source License”). These restrictions, limitations, exclusions and conditions apply even if Smoothweb Technologies or any of its Affiliates becomes aware of or fails to act in a manner to address any violation or failure to comply therewith.
You agree to report promptly to Smoothweb Technologies all bugs You or Your Contractor encounter with the API or Software, along with Your logs, steps to reproduce such bugs, and experiences regarding the performance and use of the VOICEii Service. All data, feedback and other information related to or in connection with the API however learned and by whomever collected or provided (collectively, “API Performance Data”), are, as between Smoothweb Technologies and You, the confidential and proprietary information of Smoothweb Technologies and subject to Section 9 (Confidentiality). API Performance Data may be used by Smoothweb Technologies for any purpose at any time (including after the Term) without payment or attribution to You.
8. PRIVACY, DATA COLLECTION AND USE.
8.1 Data, Non-Interference and Right to Use. You understand that the API may collect and send certain data, including Recordings, to Smoothweb Technologies (hereinafter “Data”). You understand and agree that You, and entities working on Your behalf, will not alter, surveil, intercept, inhibit, direct or otherwise interfere with the transmission of Data to Smoothweb Technologies and its Affiliates in connection with the API. You further agree that You and those working on Your behalf, will not directly access any Data that is stored in a private data store by the API Materials on an end user’s device, apart from any access provided by Smoothweb Technologies. You agree that Smoothweb Technologies may use the Data: (a) to provide the API and the VOICEii Service to You and Your end-users, (b) to improve, optimize, troubleshoot and create bug fixes for the API, and (c) for Smoothweb Technologies’ business purposes, including: (i) facilitating the provision of new products, updates, enhancements and other services, (ii) improving the VOICEii Service, and (iii) providing new products, services or technologies to You, Your end-users, and customers of Smoothweb Technologies and its Affiliates. Smoothweb Technologies will make commercially reasonable efforts to cooperate with You so that You can satisfy any obligations You may have to Your end-users under applicable data privacy laws concerning access, correction and deletion rights. If You elect to receive third party information or content (such as restaurant reviews, weather information, etc.) in connection with Your use of the VOICEii Service, You understand that Smoothweb Technologies may share Your contact information with the third-party providers of the information and content that You receive.
9. CONFIDENTIALITY. You hereby acknowledge and agree that the API Materials, API Performance Data and all related information, are, as between you and Smoothweb Technologies, confidential and proprietary to Smoothweb Technologies. Except as expressly permitted in this Agreement, You will not, and will ensure that Your Contractors do not, disclose, or permit the disclosure of, any confidential or proprietary information of Smoothweb Technologies in any form or any information relating thereto to any third party without Smoothweb Technologies’ prior written permission. You may not use any Smoothweb Technologies confidential or proprietary information for any purpose except to the extent expressly permitted in this Agreement. You further acknowledge and agree that any unauthorized use or disclosure of the API Materials and such other Smoothweb Technologies confidential or proprietary information may cause irreparable harm and significant injury to Smoothweb Technologies that would be difficult to ascertain or quantify. Accordingly, You agree that Smoothweb Technologies will have the right without posting bond or proof of future damages to seek and obtain injunctive or other equitable relief to enforce the terms of this Agreement and without limiting any other rights or remedies that Smoothweb Technologies may have.
10. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY.
10.1 DISCLAIMER OF WARRANTIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE ON BEHALF OF YOURSELF AND YOUR CONTRACTORS THAT THE USE OF THE API MATERIALS AND VOICEii SERVICE (COLLECTIVELY, THE “SOLUTION”) IS AT YOUR SOLE RISK. THE SOLUTION AND TECHNICAL SUPPORT, IF ANY, ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SMOOTHWEB TECHNOLOGIES, ITS SERVICE PROVIDERS, LICENSORS AND EACH OF THEIR RESPECTIVE AFFILIATES, SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SMOOTHWEB TECHNOLOGIES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOLUTION WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOLUTION WILL BE CORRECTED.
10.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL SMOOTHWEB TECHNOLOGIES, ITS AFFILIATES, SERVICE PROVIDERS, LICENSORS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH OR RELATED TO THIS AGREEMENT OR ANY DOWNLOAD, INSTALLATION OR USE OF, OR INABILITY TO USE, THE SOLUTION, EVEN IF SMOOTHWEB TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SMOOTHWEB TECHNOLOGIES’ CUMULATIVE LIABILITY ARISING FROM THE SERVICES, PRODUCTS AND SOFTWARE PROVIDED HEREUNDER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, INDEMNIFICATION, CONTRIBUTION OR OTHERWISE, WILL BE LIMITED TO THE DIRECT DAMAGES RECOVERABLE UNDER LAW, BUT NOT TO EXCEED $50 USD OR THE EQUIVALENT THEREOF IN ANY OTHER CURRENCY. YOU HEREBY RELEASE SMOOTHWEB TECHNOLOGIES, ITS AFFILIATES, SERVICE PROVIDERS, LICENSORS AND EACH OF THEIR RESPECTIVE AFFILIATES, FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. ALL CLAIMS BY YOU, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, MUST BE BROUGHT WITHIN TWO YEARS FROM THE DATE THE CAUSE OF ACTION ACCRUES. THIS LIMITATION OF LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. This provision applies notwithstanding any contrary provision in this Agreement.
11. INDEMNITY. You agree to indemnify and hold harmless Smoothweb Technologies, its Affiliates and licensors, and each of their respective officers, directors, employees, agents and successors and assigns (each, a “Smoothweb Technologies Indemnitee”), from and against any and all claims, actions, suits, demands, causes of action, losses, liabilities, damages, costs and expenses, incurred or otherwise suffered by each Smoothweb Technologies Indemnitee (including to costs of defense, investigation and reasonable attorneys’ fees) arising out of, resulting from or related to (i) the download, installation, duplication, storage, execution, display, performance, making of derivative works, use or distribution or transfer of any Application or related documentation or any content or materials or derivative works or products used by or in the Applications by any person or entity (except and solely to the extent such infringement is directly caused solely by the unmodified API Materials, or portions thereof, as supplied to You by Smoothweb Technologies under this Agreement); (ii) the collection, processing, storage or use of Recordings by, or transfer of Recordings to, Smoothweb Technologies Indemnitee, Affiliate or service provider; (iii) any breach of this Agreement, including in particular any breach of Section 4.3 or Section 8, by You or Your Contractors; or (iv) any use, reproduction or distribution of the API Materials, as modified or integrated by You, or by Your Contractor on Your behalf, that causes an infringement of any patent, copyright, trademark, trade secret or other intellectual property, publicity or privacy right of any third parties arising in any jurisdiction anywhere in the world (except and solely to the extent such infringement is directly caused solely by the unmodified API Materials, or portions thereof, as supplied to You by Smoothweb Technologies under this Agreement). If and as requested by Smoothweb Technologies, You agree to defend, at Your cost, each Smoothweb Technologies Indemnitee in connection with any third-party claims, demands or causes of action resulting from, arising out of or in connection with any of the foregoing; provided that You will not settle any claim, action or suit without the prior written consent of Smoothweb Technologies. Smoothweb Technologies HAS NO OBLIGATION TO DEFEND, INDEMNIFY OR HOLD YOU OR YOUR CONTRACTORS HARMLESS UNDER THIS AGREEMENT.
12. USE OF NAME AND TRADEMARKS. The API Materials may embed the trade names, trademarks, service marks, logos domain names and other distinctive brand features of Smoothweb Technologies, its Affiliates, or third parties (“Marks”). When such attribution is embedded, such as a “powered by” logo included in the user interface or when otherwise required bySmoothweb Technologies, You must, and You will ensure that Your Contractors, display it as provided or otherwise described in the API Materials or other instructions provided by Smoothweb Technologies and may not delete or in any manner alter these Marks. Except as set forth in the preceding sentence, You will not, and will ensure that Your Contractors do not, display or make any use of Smoothweb Technologies or its Affiliates’ names, marks or logos in connection with the Application without the prior written approval of Smoothweb Technologies. All permitted uses of the Marks must be in accordance with Smoothweb Technologies’ trademark usage guidelines (as may be updated from time to time by Smoothweb Technologies), available from Smoothweb Technologies upon written request. You will not, and You will ensure that Your Contractors do not, display the Marks in any manner that falsely expresses or implies that the Application or any content transmitted via the Application is sponsored or endorsed by Smoothweb Technologies. Smoothweb Technologies has the right to monitor the quality of all of Your Applications and has the right to take all action that it deems necessary to ensure that Your activities under and uses of the Marks are consistent with the reputation for quality and prestige of products bearing and service performed under the Marks.
13. Term and Termination; Survival.
13.1 Term and Termination. This Agreement will be effective upon acceptance by You and will continue until terminated as provided herein (the “Term”). You may terminate the Agreement at any time by deleting and destroying all copies of the API Materials, API Performance Data and all related information in You or Your Contractor’s possession or control. The licenses granted to You by Smoothweb Technologies will terminate immediately and automatically, with or without notice, if You or Your Contractor fail to comply with any provision hereof. Additionally, Smoothweb Technologies may at any time terminate this Agreement, either with or without cause, upon notice to You.
13.2 Survival. Sections 1 (Defined Terms); 2.7 (Retention of Rights); 5 (Fees), 7 (Feedback); 8 (Privacy; Data Collection and Use); 9 (Confidentiality); 10 (Disclaimer of Warranties; Limitation of Liability); 11 (Indemnity); 13 (Term and Termination; Survival); and 14 (Governing Law; Venue) through 20 (Miscellaneous) will survive the termination of this Agreement.
14. GOVERNING LAW; VENUE. This Agreement is governed by and interpreted in accordance with the laws of Hong Kong, without giving effect to its conflict of laws provisions. Except as set forth in Section 16 (Dispute Resolution), any claim, lawsuit or proceeding arising out of or related to this Agreement must be brought exclusively in the courts of Hong Kong and You hereby consent to the exclusive jurisdiction and venue of such courts.
15. SEVERABILITY. If any provision (or portion of a provision) of this Agreement will be held to be illegal, invalid or unenforceable, the legality, enforceability or validity of the remaining provisions (or portion of the applicable provision) of this Agreement will not be affected.
16. DISPUTE RESOLUTION. If You are an individual or Entity whose official place of residency or formation is outside of Hong Kong, all disputes, controversies or claims arising out of, relating to or in connection with this Agreement including the determination of the scope of the Agreement to arbitrate, will be finally settled by arbitration in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL”), applicable at the time of submission of the dispute to arbitration, and the following will apply:
16.1 The Hong Kong Association will be the Appointing Authority and will appoint a single arbitrator. The arbitration case will be administered in accordance with its rules. The place of arbitration will be Hong Kong, and the exclusive language to be used for the arbitral proceedings will be English.
16.2 Nothing herein will prevent Smoothweb Technologies, prior to appointment of the arbitrator, from making application to any court of competent jurisdiction, for any provisional remedy available at law or in equity. Such application for relief will not constitute a waiver of this Agreement to arbitrate. Upon appointment, the arbitrator will have exclusive authority to order provisional or interim relief, except that any relief ordered by the arbitrator may be immediately and specifically enforced by a court otherwise having jurisdiction. You waive objection to venue and consent to the personal jurisdiction of the state or federal courts of Hong Kong, China in any action to enforce this Agreement to arbitrate or any order or award of the arbitrator, or for the provisional or interim remedies provided for herein.
16.3 Discovery will be limited to written requests for the production of specific documents. The period for requesting documents will be 60 days commencing upon the day that the answer is due under the Rules. The responding party will have 30 days to produce the requested documents by sending copies to the requesting party or its representative via a recognized international courier service. Each party will also voluntarily produce all documents that they intend to use at the arbitration hearing and a list of intended witnesses before the close of discovery subject to supplementation for purposes of rebuttal or good cause shown. Each party hereby waives any right to seek any discovery not provided for in this Agreement irrespective of whether the laws of any country provide for different or additional discovery in international arbitration. The arbitrator will hold a pre-hearing conference within three days of the close of discovery and will schedule and hold the final hearing within 30 days of the close of discovery. YOU HEREBY AGREE THAT THE ARBITRATION PROCEDURE PROVIDED HEREIN WILL BE THE SOLE AND EXCLUSIVE METHOD OF RESOLVING ANY OF THE AFORESAID DISPUTES, CONTROVERSIES OR CLAIMS.
17. EXPORT COMPLIANCE ASSURANCES. You acknowledge that all API Material obtained from Smoothweb Technologies and Your Applications are subject to the US government export control and economic sanctions. You represent and warrant that You, Your Contractors and Your Affiliates will not directly or indirectly export, re-export, transfer or release any Application to any destination, person, entity or end-use prohibited or restricted under US laws without respective prior US government authorization to the extent required by applicable regulation.
18. COMPLIANCE WITH LAWS. You will, and will ensure that Your Contractors will, abide by all applicable local, state, national, and foreign laws, treaties and regulations in connection with Application(s) and Your use of the API, including those related to privacy, data security, and data collection, international communications, and the transmission of technical or personal data.
19. NO THIRD PARTY RIGHTS. The parties agree and confirm their mutual intention that neither this Agreement nor any of the terms of this Agreement will be enforceable by any person or entity not a direct party to it. Notwithstanding that any term of this Agreement may be or may become enforceable by a person who is not a party to this Agreement, the terms and conditions of this Agreement may be modified or amended, or this Agreement may be suspended, cancelled, rescinded or terminated by the parties as provided in Section 20.3 without the consent of any such third party.
20.1 Entire Agreement. This Agreement constitutes the entire and exclusive agreement between Smoothweb Technologies and You with respect to the API, the API Materials, and the VOICEii Service and supersedes all prior agreements (whether written or oral) and other communications between Smoothweb Technologies and You with respect to the API Materials.
20.2 No Assignment. You will not, and will ensure that Your Contractors do not, delegate, transfer or assign this Agreement or any of the rights, duties or obligations hereunder (whether voluntarily, by operation of law or otherwise) without SSmoothweb Technologies’ prior written consent. Any attempted assignment, transfer or other delegation without such consent will be null and void and will constitute a material breach. Smoothweb Technologies may assign this agreement at any time without obtaining Your consent. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors, transferees, and assignees.
20.3 Amendment. Except to the extent that Smoothweeb Technologies is expressly precluded by applicable law, Smoothweb Technologies further reserves the right to make changes to this Agreement by providing You with reasonable notice of the changes (e.g., which notice may be sent to You via e-mail at the address You provided during registration or posted on the Smoothweb Technologies developer website). You will be responsible for reviewing and becoming familiar with any and all such changes. If You or Your Contractors continue to use any portion of the Solution after notice of any changes has been provided or posted, You will be deemed to have accepted any and all such changes.
20.4 Government Use. The API Materials are “commercial items” consisting of “commercial computer software” and “commercial computer software documentation”. Any use, modification, derivative, reproduction, release, performance, display, disclosure or distribution of the Solution by any government entity is prohibited, except as expressly permitted by the terms of this Agreement. If You use any part of the Solution in Your official capacity as an employee or representative of a state or local government entity and You are legally unable to accept the indemnity, jurisdiction, venue or other clauses herein, then those clauses do not apply to such entity, but only to the extent as required by applicable law.
20.5 Interpretation. The headings appearing at the beginning of the Articles and Sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Any reference to any agreement, document or instrument will mean such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof. Whenever the words “include,” “includes,” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” Whenever the words “hereunder,” “hereof,” “hereto,” and words of similar import are used in this Agreement, they will be deemed references to this Agreement as a whole and not to any particular Article, Section or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
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