VIRTUOSO TERMS OF SERVICE V1.0
Last updated July 15th, 2018
Acceptance Of The Terms Of Service
The following terms and conditions (“Terms”) apply to your use of the website of Virtuoso Software, LLC and its affiliates (“Virtuoso”, “we” “us” or “our”), including any content, functionality, products, and services offered on or through such websites (collectively, the “Site”), whether as a guest or a registered user. These Terms also apply to your use of other Virtuoso services that display or include these Terms (“Additional Services”). In these Terms, the Site and Additional Services are collectively referred to as the “Services.”
Please read these Terms carefully before you start to use the Services. By using the Services, you accept and agree to be bound and abide by these Terms of Service. If you do not want to agree to these Terms of Service, you must not use the Services. “You” refers to the entity bound by these Terms, whether that is a natural person who must be at least 18 years of age, or a corporate entity.
These Terms may be translated into other languages, but the governing language is English in the event of any contradiction in terms between the English and foreign translation.
Please review our Privacy Notice found at https://www.virtuoso-software.com/privacy-policy, which also governs your use of the Services, to understand our practices.
Changes To The Terms Of Service
We may update these Terms from time to time. You should check this page regularly to take notice of any changes. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes.
Accessing the Services and Account Security
We may withdraw or amend the Services, and any related service or content, or restrict access (including by means of cancellation, termination, or modification, or suspension of a user or organization account) to all or certain users (including you) without notice and without liability to you. Additionally, due to your geographic location, the Services or some of their features or content may be unavailable to you.
If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential (other than user name), and you must not disclose it to others. You must immediately notify Virtuoso (via firstname.lastname@example.org) of any unauthorized use of your user name or password or any other breach of security. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You may only access the Services through your own account. Users do not own their accounts, and gifting or otherwise transferring of accounts or access keys is prohibited.
In addition to these Terms, software or services that are included in or otherwise made available to you through the Services may be subject to a separate agreement between you and Virtuoso, such as end user license agreements. If these Terms are inconsistent with any such agreements, those agreements will control.
Intellectual Property Rights
The Services, including all content, features, and functionality thereof, are owned by Virtuoso, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, and other intellectual property or proprietary rights laws.
The Services contain various forums, networks, and other interactive features that allow you to post, submit, publish, display, or transmit to Virtuoso and other users (“Post”) content or materials or (“User Contributions”) on or through the Services. In the context of this Agreement, a Montage Package and its associated documentation published by a Montage Merchant is not considered a User Contribution.
All User Contributions must comply with the following content standards: User Contributions must not be illegal, fraudulent, deceptive, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable, and must not consist of or contain software viruses, commercial solicitation, chain letters, mass mailings, or any form of “spam.”
Any User Contribution that you Post will be considered non-confidential and non-proprietary, and you grant Virtuoso a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such User Contribution throughout the world in any media; however, Virtuoso will only share personal information that you provide in accordance with Virtuoso’s Privacy Notice found at https://www.virtuoso-software.com/privacynotice.
You represent and warrant that you own or otherwise control all of the rights to the User Contributions that you Post at the time of Posting; that the User Contributions are accurate and not fraudulent or deceptive; and that the User Contributions do not violate these Terms or the rights (intellectual property rights or otherwise) of any third party and will not cause injury to any person or entity. You understand that your User Contributions may be copied by other Services users and discussed on and outside of the Services, and if you do not have the right to submit User Contributions for such use, it may subject you to liability. Virtuoso takes no responsibility and assumes no liability for any content Posted by you or any third party.
Virtuoso has the right but not the obligation to monitor and edit or remove any User Contributions. Virtuoso also has the right to terminate your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms.
You may link to publicly available portions of the Services if you do so in a way that is fair and does not damage or take advantage of our reputation, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part. The Services must not be framed on any other website or service. We reserve the right to withdraw linking permission without notice.
If the Services contain links to other sites and resources provided by third parties, these links are provided for your convenience only. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
You acknowledge that there are risks inherent in the use of the Services, Site, Documentation, any associated hardware and internet connectivity that may result in interruptions or errors, loss of privacy, confidentiality, information or property, as well as other losses, damages or adverse occurrences, regardless of the measures taken to avoid such occurrences. You expressly agree that your use of the Services is at your sole risk. Further, you acknowledge that Montage Packages deployed by Merchant Users on the Virtuoso ecosystem are not guaranteed or warranted to operate safely or as advertised, and that the User accepts full responsibility regarding judgments regarding the safety or quality of Montage Packages.
The Services, Site, Documentation, and any other materials, software, or support provided to you by Virtuoso pursuant to this Agreement are provided on an “as is” and “as available” basis and with all faults or errors. Virtuoso disclaims all warranties of any type or kind, whether express or implied. Licensee acknowledges that occasional internet connection may be required for license verification, and that occasional maintenance-related or unforeseen outages of license verification may occur. Virtuoso does not warrant that the Services, information, content, materials, products (including software) or other services included on or otherwise made available to you through the Services, Virtuoso’s servers, or electronic communications sent from Virtuoso are free of viruses or other harmful components.
VIRTUOSO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT PURSUANT TO THE UNIFORM COMMERCIAL CODE AND ANY OTHER APPLICABLE LAW.
In no event will Virtuoso be liable for any losses or damages incurred by you, whether direct, indirect, incidental, special, exemplary or consequential, including lost or anticipated profits, savings, interruption to business, loss of business opportunities, loss of business information, the cost of recovering such lost information, the cost of substitute intellectual property or any other pecuniary loss arising from the use of, or the inability to use, the Services regardless of whether you have advised Virtuoso of the possibility of such damages. Virtuoso’s aggregate liability in respect of any and all claims will be limited to the fees paid by you to Virtuoso (if any), during the twelve (12) months immediately preceding the events giving rise to such liability. The foregoing limitations apply regardless of the cause or circumstances giving rise to such loss, damage or liability, even if such loss, damage or liability is based on negligence or other torts or breach of contract, including fundamental breach or breach of a fundamental term.
Virtuoso shall not be responsible for any delays, failures or outages arising out of causes beyond its reasonable control. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, earthquakes, electrical outages, computer or communications failures, severe weather, and acts or omissions of subcontractors or third parties.
Waiver Of Class Action
To the fullest extent allowed by law, you waive any rights to trial by jury and agree not to bring or participate in a class action, private attorney general action or any other similar litigation.
Indemnification And Release
You agree to indemnify and hold harmless Virtuoso, and its parent, subsidiaries, affiliates, suppliers, distributors, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney’s fees) arising out of (i) your use or misuse of the Services; (ii) your use of Montage Packages or Montage Activities; (iii) your violation of these Terms; (iv) your violation of the rights of any other person or entity, including claims that any of Licensee’s submissions infringes or violates any third party intellectual property rights; (v) your User Contributions; and (vi) your breach of the representations, warranties, and covenants herein. Virtuoso reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Virtuoso and you agree to cooperate with Virtuoso’s defense of such claims. You agree not to settle any matter without the prior written consent of Virtuoso. Each party will use reasonable efforts to notify the other of any such claim, action or proceeding upon becoming aware of it.
Governing Law And Dispute Resolution
This Agreement will be governed by and construed in accordance with the laws of the State of Oklahoma, U.S.A. without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply to this Agreement.
You agree that: (1) any claim, dispute, or controversy you may have against Virtuoso arising out of, relating to, or connected in any way with this Agreement, Services, or Site, shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”); (2) the arbitration shall be held in Tulsa, Oklahoma or at such other location as may be mutually agreed upon by Licensee and Virtuoso; (3) the arbitrator shall apply Oklahoma law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (4) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (5) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Virtuoso may elect to pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (6) with the exception of subpart (4) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its Terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (4) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, you shall not be entitled to arbitrate its dispute. For more information on AAA and its Rules and Procedures, you may visit the AAA website.
To the extent that the arbitration provisions of this Agreement do not apply, this Agreement will be subject to the exclusive jurisdiction of the state and federal courts serving Tulsa County, Oklahoma, U.S.A., and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing herein shall in any way prohibit or limit Virtuoso from instituting an action in any court of competent jurisdiction to obtain injunctive relief or to protect or enforce its intellectual property rights.
Waiver and Severability
No waiver of these Terms by Virtuoso shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of Virtuoso to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect. In lieu thereof, there shall be added a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
Notice and Procedure for Making Claims of Copyright Infringement
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Virtuoso has adopted a policy of terminating, in appropriate circumstances as determined by Virtuoso, users or account holders who are deemed to be repeat infringers of the copyrights of others. Virtuoso may also at its sole discretion limit access to the Services and/or update, transfer, suspend, or terminate the accounts of any users who infringe the intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that your work has been used on the Website or in any other Services in a way that constitutes copyright infringement, please submit a Notice of Alleged Infringement (“DMCA Notice”) to our Designated Copyright Agent as follows:Legal Department
Virtuoso Software, LLC
6415 S 110th East Ave
Tulsa, OK 74133
Telephone: (918) 940-7447
Please include all of the following in your DMCA Notice:
Identify the Montage Package or copyrighted work that you claim has been infringed.
Identify the material that you claim is infringing, including a description of where the material is located. Your description must be reasonably sufficient to enable us to locate the material. Where possible, please include the URL of the webpage where the material is located.
Provide your full legal name, mailing address, telephone number, and (if available) e-mail address.
Include the following statement in the body of the DMCA Notice:
I have a good-faith belief that the use of the material is not authorized by the copyright owner, its agent, or the law. I represent that the information in this DMCA Notice is accurate and, under penalty of perjury, that I am the owner of the copyright or authorized to act on the copyright owner’s behalf.
Provide your electronic or physical signature.
Please note that under 17 U.S.C. 512(f), if you knowingly misrepresent that material or activity is infringing, you may be liable for damages, including costs and attorneys’ fees, incurred by us or our users. If you are unsure whether the material or activity you are reporting is infringing, you may wish to contact an attorney before filing a notification with us.
Risk of Loss and Shipping
The risk of loss and title for all items purchased from the Montage Marketplace pass to you upon our delivery to the carrier.