Terms of Service

The definitions and rules of interpretation in this clause apply in this Agreement:  

“Acceptable Use Policy” means the Acceptable Use Policy as may be updated by Virtuoso from time to time.

“Affiliate” means any entitythat directly or indirectly controls, is controlled by, or is under commoncontrol with another entity. As used herein, “control” means the power todirect the management or affairs of an entity or the beneficial ownership ofmore than 50% of the voting equity shares or other equivalent voting interestsof an entity.

“Confidential Information” means (without limitation) all confidential information disclosed by a party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should beunderstood to be confidential given the nature of the information and thecircumstances of disclosure. Notwithstanding the foregoing, Confidential Information will not include any information to the extent that it can be established by written documentation by the Receiving Party that such information: (a) is or becomes generally known to the public without breach of any obligation of confidentiality by the Receiving Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party and who has a legal right to disclose such information; or (d) was independently developed by the Receiving Party without the use of the Disclosing Party’s Confidential Information.  

“Customer Account Information” means information about Customer and Permitted Users provided to Virtuoso in connection with the creation and use of Customer’s accounts in the Services, including, without limitation, usernames,email address, and other contact information. When creating an account through the Services, Customer shall ensure that the information provided is accurate, complete, and current at all times.
         
"Customer Data" means, other than Customer Account Information and Usage Data, all data, content and information belonging to Customer that is submitted by or on behalf of Customer via the Services, as well as Customer Test Execution Data generated for Customer in the course of Customer’s use of the Services. Customer Data should not include any personal data, production, or other sensitive data.

“Customer Test Execution Data” shall mean the test execution results including but not limited to, test stepactions and parameters, element names and selectors, screenshots, console logs,analytics reports, network requests, variable values.

“Data Processing Addendum”means the data processing addendum as it may be updated by Virtuoso from time to timewhich is incorporated into this Agreement by reference.

“Data Protection Legislation” means all applicable data protection and privacy legislation in force from timeto time including the General Data Protection Regulation ((EU) 2016/679) which apply to the processing of personal data pursuant to this Agreement as further detailed in the Data Processing Addendum.

“Documentation” means those printed or online learning support materials provided by Virtuoso for use as part of the Services, or any printed or online instructions, manuals orotherwise provided by Virtuoso from time to time that pertain to Virtuoso Platform or the use of the Services.  

“Effective Date” means the effective date of this Agreement as specified in the Order Form.

“Execution” means one Virtuoso Journey executed on one operating system/browser combination, on one resolution and with one row of data.

“Fees” means the fees setout in the Order Form payable by Customer to Virtuoso for access to and use ofthe Services.

“Free Services” means the Services or other products or features made available by Virtuoso to Customers on an unpaid trial or otherwise free basis.

“Intellectual Property Rights” means without limitation, the content, layout, functions, design, appearance, patents, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, 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.  

“Parallel” means the numberof Virtuoso Journeys that can be executed concurrently.

“Permitted Users” means those individuals authorised by Customer to access or use the Services pursuant to this Agreement.

“Services” means access to the Virtuoso Platform, and any other services (business, technical, or other), provided to Customer by Virtuoso as described on the applicable Order Form.  

“Service Level Agreement”means the Virtuoso standard service level agreement (as such may be amended by Virtuoso from time to time) or as otherwise agreed between the parties in writing.

“Term” means the Initial Term plus any applicable Extended Term (as such terms are defined in clause 10).  For Free Services, the Term will be the period during which Customer has an account to access the Free Services.

“Usage Data” means certain aggregated and anonymised technical and analytical information pertaining to Customer’s use of the Services or information pertaining to the performance of the Services in Customer’s environment created or collected by Virtuoso in connection with providing the Services (to the extent permitted by applicable law).

"Virtuoso Content” means all information, data, text, messages, software, sound, video, photographs, graphics, images, and tags that are incorporated into the Documentation and the Virtuoso Platform.

“Virtuoso Journey” means a test scenario in the Virtuoso Platform.

“Virtuoso Platform” means the web application quality assurance platform that is developed, operated, and maintained by Virtuoso, accessible via https://virtuosoqa.com or another designated URL, and any ancillary products and services, that Virtuoso provides to Customer for its use in accordance with the terms of this Agreement

“Virus” means any thing or device (including any software, code, file, or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices. In this Agreement: (a) clause, schedule and paragraph headings shall not affect the interpretation of this Agreement; (b) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (c) a reference to writing or written includes e-mail; (d) any words following the terms including, include, in particular for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms  

This Agreement governs Customer’s access to and use of the Services, the Virtuoso Platform, its software, content, services, associated Documentation, information and applications.

Subject to Customer paying the Fees in accordance with this Agreement, Virtuoso hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right for Customer and its authorised Permitted Users to access and use the Services set forth in the Order Form during the Term in accordance with this Agreement and solely for the benefit of Customer’s internal business operations.

Virtuoso may update the Services from time to time, provided that there shall be no material reduction in their functionality.

From time to time,Virtuoso may in its discretion, but is not obligated to, offer access to Free Trials to Customer or prospective customers. Free Trials are provided “as-is” without warranty of any kind for limited evaluation and testing purposes only. Virtuoso will have no liability arising out of or in connection with a Free Trial. Any Free Trial that provides access to the Services must be used within the specified time of the Free Trial. At the end of the Free Trial period, Customer’s use of that Service will expire, and any further use of the applicable Service is prohibited unless Customer pays the then-applicable subscription fee.

Customer shall not designate any person as a Permitted User unless such person is (a) a natural person and (b) an employee of Customer. Notwithstanding the foregoing, Customer may give access to or designate non-employees as Permitted Users of the Services only if: (i) their access and use of the Services is for and on behalf of Customer; (ii) the use of the Services is in accordance with the rights purchased in the applicable Order Form; and (iii) Customer shall at all times be responsible for any acts or omissions by its Permitted Users.  If the employment or engagement of any Permitted User terminates during the Term, Partner shall promptly notify Virtuoso and take all reasonable steps to ensure that such person ceases accessing the Services. Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and shall procure that each Permitted User keep secure all usernames and passwords for use of the Services confidential. If Customer becomes aware of, or believes there has been, any breach of security, such as the theft or unauthorised use of such Customer account credentials, Customer will notify Virtuoso immediately.

Unless specified otherwise in the Order Form or otherwise agreed with Virtuoso in writing, the rights provided under this Agreement are granted to Customer only and shall not be considered granted to any Customer Affiliate. If Customer is permitted to make the Services available to its Affiliates in the relevant Order Form, Customer shall: (a) be responsible for the Fees and all acts and omissions of its Affiliates (and their Permitted Users); (b) be liable for ensuring that its Affiliates and their Permitted Users comply with the terms of this Agreement; and (c) ensure that any rights or remedies arising in connection with this Agreement will be actionable against Virtuoso solely by Customer and not by any Affiliate except that Customer will be entitled to treat losses of its Affiliates as if they are losses of Customer. Any limitations or exclusions of liability contained herein shall be deemed to apply to Customer and its Affiliates in aggregate.

Except as expressly set out in the Agreement or as permitted by applicable law and is incapable of exclusion by agreement, Customer undertakes that it will not, and will not permit anyone else to:

store, copy, modify, distribute, create derivative works from, frame, mirror, republish, download, display, transmit, distribute or resell any of the information or other content made available pursuant to the Services;

compile or collectany such content as part of a database or other work;

use any automated tool (e.g., robots, spiders) to access or use the Services;

rent, lease, sublicense or otherwise commercially exploit Customer’s access to the Services to any third party except Customer’s Permitted Users;

use any Services for any purpose except for Customer’s own internal use;

use any aspect of the Services in order to create, market or distribute a product or service which competes with the Services;

access or attempt to access, circumvent or disable any digital rights management, usage rules, or other security features of the Services;

use the Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Services;

decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, object code or underlying ideas, structure, know-how, algorithms, file formats or programming or interoperability interfaces relevant to the Service or any software, documentation or data related to the Services by any means whatsoever; or

knowingly introduce,or permit the introduction of, any Virus into Virtuoso’s network or information systems or

move, alter, or obscure any proprietary notices (including copyright and trademark notices) on any portion of the Services.

Virtuoso shall provide the Services substantially in accordance with the Documentation, the Service Level Agreement and with reasonable skill and care. Virtuoso may update the Services at any time, provided that there shall be no material reduction in their functionality.  Virtuoso shall not be 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 Partner acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

The Services may be temporarily unavailable for scheduled maintenance or for unscheduled maintenance performed either by Virtuoso or third-party providers, or because of other causes beyond Virtuoso’s reasonable control, provided that Virtuoso shall use commercially reasonable efforts to schedule any planned maintenance outside of normal business hours and to give Customer at least 24 hours’ advance notice of any scheduled service disruption.

It is Customer’s responsibility to ensure it has appropriate hardware, browser, and internet connection for Permitted Users to access to the Services.  Technical requirements and advice on accessibility issues are available on request to Virtuoso. Virtuoso does not warrant that Customer’s or Permitted Users’ use of the Services will be uninterrupted or error-free and Virtuoso is not responsible for any delays or delivery failures resulting from the transfer of data over the internet.

Customer shall:

provide Virtuoso with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access and information as may be required by Virtuoso in order to provide the Services;

comply with all applicable laws and regulations with respect to its activities under these terms;

ensure that any Customer Data entered into the Virtuoso Platform does not contain any Personal Data and that only non-sensitive, non-production data is entered into the Virtuoso Platform in connection with Customer’s use of the Services;

ensure that Customer’s Permitted Users use the Services and the Documentation in accordance with these terms and the Acceptable Use Policy and shall be responsible for any Permitted User's breach of these terms;

obtain and shall maintain all necessary licences, consents, and permissions necessary for Virtuoso, its contractors and agents to perform their obligations under these terms, including without limitation the provision of the Services;

ensure that its network and systems comply with the relevant specifications provided by Virtuoso from time to time necessary to provision of the Services; and

be, to the extent permitted by law and except as otherwise expressly provided in these terms, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Virtuoso's data centres.

If Customer delays in meeting its obligations under this clause 5, Virtuoso may adjust any agreed timetable or delivery schedule as reasonably necessary.

Customer’s use of the Services, the Virtuoso Platform, and the Documentation is subject to the usage limitations specified in the applicable Order Form, including but not limited to the number of Permitted Users, Executions, Parallels, or any other designated metric included in the Order Form or the Agreement.

Executions and Parallels are only valid during the Term in which they are purchased. Any unused Executions and/or Parallels expire at the end of the then-current Term or after termination of the Agreement in accordance with clause 10. Executions and Parallels have no monetary value and cannot be transferred or sold in anyway except as stated in this Agreement or otherwise agreed between the Parties.

Customer may purchase additional Executions and/or Parallels during the Term by executing a new Order Form for such additional Executions and/or Parallels. If Customer exceeds the usage limits set out in the applicable Order Form, Customer and Virtuoso shall promptly execute a new Order Form for the additional Services used.

Fees are based on access rights acquired and not actual usage. Executions and Parallels cannot be decreased during the Term. All Fees are to be prepaid annually and, except as expressly set out in clauses 10.5 and 11.2, are non-cancellable and non-refundable.

Customer shall pay Fees due pursuant to an Order Form or this Agreement (other than Fees subject to dispute in good faith submitted to Virtuoso in writing within fifteen (15) days of receipt) within 30 days of the invoice date, or as specified in the applicable Order Form. Virtuoso reserves the right to charge interest on any late payments. Interest on any late payments will accrue at the rate of 2% above the current Bank of England base rate, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is finally paid in full provided that Virtuoso will not exercise its right tocharge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.

Virtuoso shall be entitled to increase the Fees for any Renewal Term by the greater of 7% or the percentage increase in the latest-published Retail Prices Index in the UK on notice delivered to Customer no less than seventy-five (75) days prior to the end of the then current Term. Any such increase shall take effect beginning on the next Renewal Term.

All amounts and fees stated or referred to in these terms:

shall be payable in pounds sterling (or as otherwise agreed in the Order Form);

are exclusive of any applicable value added tax or relevant sales taxes, which shall be added to Virtuoso's invoice(s) at the appropriate rate; and

shall be paid by Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by applicable law)

If Virtuoso has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Virtuoso, Virtuoso may, without liability to Customer, disable Customer's password, account and access to all or part of the Services and Virtuoso shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.

If Customer has acquired Services through a Virtuoso authorised reseller (“Reseller”):

Clause 7 shall not apply to Customer, and the equivalent terms will be governed under Customer’s agreement with Reseller.

Customer will pay the applicable amounts to Reseller, as agreed between Customer and Reseller. Virtuoso reserves the right to suspend or terminate Customer’s rights to use the Services if it does not receive the corresponding payment from Reseller within 30 days from the due date of such invoice issued to Reseller for Customer’s Services.

The terms of the order including without limitation the Services Customer is entitled to use, the capacity of Services being purchased, the term associated with those Services will be as stated in the Order Form placed with Virtuoso by Reseller on Customer’s behalf, and Reseller is responsible for the accuracy of any such Order Form as communicated to Virtuoso.

The amount paid or payable by Reseller to Virtuoso for Customer’s use of the applicable Services under this Agreement will be deemed the amount actually paid or payable by Customer to Virtuoso under this Agreement for purposes of calculating the liability cap in clause 12.3.

Customer acknowledges and agrees that, as between Customer and Virtuoso, all Intellectual Property Rights (including any new Intellectual Property Rights) arising out of or in connection with the Virtuoso Content, the Virtuoso Platform, the Services, and the Documentation, belong at all times to and remain vested in Virtuoso or where applicable its licensors. No rights are granted to Customer other than as expressly stated in this Agreement.

If, notwithstanding this, any Intellectual Property Rights in or arising from the Virtuoso Products, the Virtuoso Platform, the Services, and the Documentation are acquired by Customer (including any new Intellectual Property Rights), Customer hereby assigns (and to the extent that any such Intellectual Property Rights are not capable of such assignment, agree to hold on trust) and agree to do all such things and sign all such documents as Virtuoso may reasonably require in respect of the assignment of all such Intellectual Property Rights to Virtuoso or its licensors as may be appropriate.

All Intellectual Property Rights in Customer Data shall remain with Customer. Customer hereby provides to Virtuoso a non-revocable, non-transferable (save to any Virtuoso Sub Processors), non-exclusive licence for the Term to copy, modify and otherwise use Customer’s Intellectual Property Rights insofar as is strictly necessary for Virtuoso to provide Customer with the Services.

Customer represents and warrants that it owns all of the rights to, or is otherwise licensed or authorised to use, Customer Data submitted to Virtuoso by Customer; that all Customer Data submitted by Customer is complete and accurate; and that the use of such Customer Data by Virtuoso via the Services will not violate this Agreement or any applicable laws (including, without limitation, intellectual property rights and rights of privacy).

Customer grants Virtuoso a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services provided such information does not include any Customer Confidential Information.

This Agreement shall commence on the Effective Date and shall remain in full force and effect for a period of 12 months (or such other period stated in the Order Form) from that date (the “Initial Term”). The Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to the terms set out herein.

After the expiry of the Initial Term, this Agreement shall automatically renew for a period equal to the Initial Term (“Extended Term”) at the end of the Initial Term and at the end of each Extended Term. Either Party may give written notice to the other Party, not later than 60 days before the end of the Initial Term or the relevant Extended Term, to terminate this Agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.

Termination. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than thirty (30) Business Days after being notified in writing to make such payment;

if the other party commits a material breach of any term of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within thirty (30) days after being notified in writing to do so; or

the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction, or it ceases or threatens to cease to carry on business.

Termination by Virtuoso. If this Agreement is terminated by Virtuoso under clause 10.3 above, all Fees payable to Virtuoso for the remainder of the Term shall be immediately due and payable to Virtuoso, and Customer shall promptly remit all such amounts to Virtuoso. No refunds shall be made to Customer.

Termination by Customer. If this Agreement is terminated by Customer under clause 10.3(b) or (c) above, Virtuoso shall promptly refund the pro-rata amount of any pre-paid Fees for the remainder of the Term.

Termination of Free Services. Virtuoso may suspend, limit, or terminate the Free Services for any reason at any time with immediate effect.

Effect of Termination. Expiration or Termination for any Reason. Upon expiration or termination of this Agreement for any reason,

all licenses granted under this Agreement shall immediately terminate; each party shall return or destroy and make no further use of any Confidential Information, equipment, property and other items (and all copies of them) belonging to the other party;

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 this Agreement which existed at or before the date of termination shall not be affected or prejudiced; and

Customers shall have thirty (30) days following termination or expiration of this Agreement to download any Customer Data. Customer Data not retrieved within thirty (30) days may be deleted by Virtuoso in its discretion.

The termination of this Agreement in whole or in part for whatever reason shall not affect any provision of this Agreement which is expressed, or by its nature, implied to continue, survive or come into force in the event of such termination.

Customer will indemnify, defend and hold harmless Virtuoso and its officers, directors, employees, and Affiliates against any and all direct costs, claims, demands, expenses (including reasonable legal costs) and liabilities of whatever nature incurred by or awarded against Virtuoso arising out of or in connection with Customer’s or Permitted Users’ access or use of the Services in violation of any law, this Agreement or the Data Processing Addendum, or (b) any infringement by Customer Data of any third party Intellection Property Rights.

Subject to clause 11.3, Virtuoso will indemnify Customer and its officers, directors, employees, and Affiliates against all direct costs, claims, demands, expenses (including reasonable legal costs) and liabilities of whatever nature incurred by or awarded against Customer arising out of or in connection with any claim that Customer’s use of the Services infringes a third party’s Intellectual Property Rights. If the Services become, or, in Virtuoso’s opinion, is likely to become, the subject of any claim of infringement, Virtuoso may, at its sole option: (i) procure such licence, authorisation or consent as is necessary to enable Customer’s continued use of the Services; (ii) modify or replace the affected Services so that it becomes non-infringing without any material adverse effect to the functionality of the Services; or (iii) terminate this Agreement and refund an amount equal to the unused portion of any Fees pre-paid in respect of the Services.

Virtuoso shall have no liability for infringement claims or alleged infringement claims to the extent such claim arises from: (i) modification of the Services or part thereof by anyone other than Virtuoso or at Virtuoso’s direction; (ii) the combination or use of the Services with software or other materials not provided or not approved for use by Virtuoso; (iii) the use of the Services not in accordance with the provided Documentation or this Agreement; (iv) Customer's use of the Services or Documentation after notice of the alleged or actual infringement; or (v) Customer’s negligence or wilful misconduct.

Any party entitled to indemnification under this clause 11 (the “Indemnified Party”) will comply with the following conditions in order to enjoy the benefit of indemnification under either clauses 11.1 or 11.2: (a) the Indemnified Party will give prompt written notice to the indemnifying party (the “Indemnifying Party”) of any matters giving rise to a claim for indemnification, provided, that the failure of any party entitled to indemnification hereunder to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this clause 11 except to the extent that the Indemnifying Party is actually prejudiced by such failure to give notice; (b) the Indemnified Party will cede sole control over the defence of any such claim to the Indemnifying Party, provided the Indemnifying Party will retain counsel reasonably satisfactory to the Indemnified Party; and (c) the Indemnified Party shall cooperate fully with the Indemnifying Party in connection with any negotiation or defence of any such action or claim by the Indemnifying Party and shall furnish to the Indemnifying Party all information reasonably available to the Indemnified Party which relates to such action or claim.

The Indemnifying Party shall keep the Indemnified Party fully apprised at all times as to the status of the defence or any settlement negotiations with respect thereto. The Indemnifying Party will not settle any such claim without the Indemnified Party’s consent, not to be unreasonably withheld, unless such settlement does not impose any obligations, admissions or liabilities upon the Indemnified Party.

Each Party represents and warrants that: (a) the person signing this Agreement on its behalf has been duly authorised and empowered to enter into this Agreement; (b) this Agreement is valid, binding and enforceable against it in accordance with its terms; and (c) it will fulfil its obligations under this Agreement in accordance with all applicable laws.  

Virtuoso represents and warrants that:

entering into and fully performing its obligations under this Agreement does not and will not violate any agreement or obligation existing between Virtuoso and any third party;

Virtuoso has obtained all releases, consents, rights, licences, representations, warranties and assignments necessary for performance of the Services; and

the Services do not infringe or misappropriate any Intellectual Property Rights or any third-party confidentiality obligations.

EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN THIS AGREEMENT, VIRTUOSO MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES CONCERNING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER 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 THIS AGREEMENT; AND THE VIRTUOSO PLATFORM, THE SERVICES, THE DOCUMENTATION AND ANY INFORMATION PROVIDED BY OR ON BEHALF OF VIRTUOSO ARE PROVIDED TO CUSTOMER ON AN "AS IS" BASIS. CUSTOMER AGREES AND ACKNOWLEDGES THAT IT HAS NOT RELIED ON THE FUTURE AVAILABILITY OF ANY FEATURE, FUNCTIONALITY, OR PRODUCT.

Except as expressly and specifically provided in these terms:

Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by Customer, and for conclusions drawn from such use. Virtuoso shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Virtuoso by Customer in connection with the Services, or any actions taken by Virtuoso at Customer's direction;

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 these terms;

the Services and the Documentation are provided to Customer on an "as is" basis;

nothing in these terms excludes either party’s liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation, or for any liabilities that cannot be excluded under applicable law.

Customer’s sole and exclusive remedy for any uncured breach by Virtuoso of its obligations under this Agreement is termination by written notice to Virtuoso, and refund of a prorated portion of any pre-paid Fees that Customer has paid.

To the maximum extent permitted by law, (a) neither party will be liable to the other for any incidental, indirect, consequential, special or punitive damages, including, without limitation lost profits, related to or arising out of this Agreement, regardless of the form of action or whether the other party has been advised of the possibility of such loss or damage; and (b) in no event will each party’s total cumulative liability for damages under this agreement exceed an amount equal to the Fees payable by Customer to Virtuoso under this Agreement during the twelve months prior to the event(s) first giving rise to the claim. This limitation of liability does not apply to claims arising out of: (i) a party’s wilful misconduct or gross negligence; or (ii) either party’s indemnification obligations. Notwithstanding the foregoing, the maximum total liability for Virtuoso for any claim under clause 11.2, shall be limited to the greater of: (A) three times (3x) the Fees paid by Customer to Virtuoso during the twelve (12) months immediately preceding the date on which the claim arose; or (B) five hundred thousand dollars (£500,000). Neither party may benefit from the limitations and exclusions set out in this clause 13 in respect of any liability arising from its deliberate default.

The Parties agree that, during the Term, and for three (3) years thereafter, the Receiving Party will keep confidential and will not publish or otherwise disclose or use for any purpose other than as provided for in this Agreement the Confidential Information of the Disclosing Party. All confidential information (however recorded or preserved) disclosed by one party or its employees, officers, representatives or advisers (together “Representatives”) to the other party and the other party’s Representatives, including the terms and conditions of this Agreement, the business, affairs, customers, suppliers, plans, intentions, market opportunities, operations, processes, product information, services, know-how, technical information or trade secrets of the disclosing party.

The Receiving Party will use the same degree of care that it uses to handle, treat, store, access (or limit access), and otherwise protect (including with encryption, as applicable) the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care).  The Receiving Party: (a) will not use any Confidential Information of the Disclosing Party for any purpose outside the scope of, or as permitted by, this Agreement, and (c) except as otherwise authorized by the Disclosing Party in writing, will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound by obligations to the Receiving Party consistent with this Agreement. The Receiving Party will be liable for any unauthorized disclosure of the other party’s Confidential Information by itself or its Representatives, contractors and agents.

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or regulatory process to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted and practicable (e.g., there is sufficient time to provide such notice) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure or seek a protective order. In addition, the Receiving Party shall disclose only that portion of Disclosing Party's Confidential Information that is legally required.

Upon written request, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information received from the Disclosing Party during the Term of this Agreement except digital backup copies created through automated system processes provided that such backup copies are protected as Confidential Information by the Receiving Party for as long as the information is retained.

The Receiving Party acknowledges that, except as otherwise provided herein, (a) the Disclosing Party is the exclusive owner of and has all rights to its Confidential Information, including all Intellectual Property Rights therein; and (b) no right, title, interest or license to the Receiving Party is either granted or implied under any Intellectual Property Rights by the disclosure of Confidential Information hereunder.

Each party will comply with all applicable requirements of the Data Protection Legislation. This clause 14 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

Customer acknowledges and agrees that Virtuoso will operate in accordance with the Data Processing Addendum which is incorporated herein by reference. The Data Processing Addendum sets out how Virtuoso will process Personal Data on Customer’s behalf in connection with the Services provided to Customer under this Agreement.

During the Term, Virtuoso shall implement and maintain an information security program that incorporates administrative, technical and physical safeguards designed to: (a) ensure the security and integrity of Customer Data; (b) prevent unauthorised access to, or disclosure of, Customer Data; and (c) protect against threats, hazards and security incidents with respect to Customer Data, in each case, solely to the extent that Virtuoso hosts such Customer Data.

Customer will ensure that Customer’s use of the Services and all Customer Data is at all times compliant with Customer’s security and privacy policies and all applicable local, state, federal and international law, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical data.  Customer is solely responsible for the accuracy and content of all Customer Data provided by Customer.  

Force Majeure. Virtuoso shall have no liability to Customer under these terms if it is prevented from or delayed in performing its obligations, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Virtuoso or any other party), epidemic, pandemic, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that Customer is notified of such an event and its expected duration.

Severance. If any provision or part-provision of these terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of these terms is deemed deleted under this clause 16.2 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

Entire Agreement. These terms and the Order Form constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms.

Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated, by operation of law or otherwise, without the prior written consent of the non-assigning party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the above, either party may transfer, assign or delegate this Agreement or its rights and obligations under this Agreement without the consent of the non-assigning party to an Affiliate, as part of a change of control, or to a successor in interest to all or substantially all of its business or assets provided that the assignee undertakes to the other party to be bound by and perform the obligations of the assignor under this Agreement.

Variation. Virtuoso may amend or otherwise modify these terms at any time by providing Customer with at least seventy-five (75) days’ notice and such changes shall go into effect at the beginning of the next Renewal Term. Except as set forth in the preceding sentence, no amendment or modification of this Agreement shall be binding unless executed in writing by both parties.

Waiver. No failure or delay by a party to exercise any right or remedy provided under these terms or by law shall constitute a waiver of that or any other right or remedy, nor shall 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 shall prevent or restrict the further exercise of that or any other right or remedy.

No partnership or agency. Nothing in these terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall 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).

No third-party rights. These terms do not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

Notices. Customer shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to Virtuoso shall be sent to notices@virtuosoqa.com

Governing Law and Jurisdiction. This Agreement 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) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).