Virt Inc.

Terms of Service

Last Updated: 5 September 2024

BY CLICKING “I AGREE” OR ACCESSING OR USING THE VIRT INC. (“COMPANY”, “US”, “WE”, OR “OUR”) WEBSITE(S), TOOL(S), APPLICATIONS, SOFTWARE, OR RELATED MATERIALS AND SERVICES, INCLUDING YEET BRANDED SOFTWARE TOOL, (COLLECTIVELY, THE “SERVICES”), YOU AGREE TO THESE TERMS OF SERVICE (“TOS”). THESE TOS ALONG WITH ANY REGISTRATION INFORMATION OR ORDERING SELECTIONS YOU MAKE ON THE SERVICES FORM A LEGALLY BINDING AGREEMENT (COLLECTIVELY, THE “AGREEMENT”). “YOU”, “YOUR”, OR “SUBSCRIBER” MEANS THE ENTITY OR PERSON IDENTIFIED AS OUR SUBSCRIBER ON THE SERVICES OR THROUGH OUR REGISTRATION OR ORDERING PROCESS, AND THE APPLICABLE INDIVIDUAL ASSOCIATED WITH SUCH SUBSCRIBER REPRESENTS AND WARRANTS HE/SHE HAS AUTHORITY TO BIND SUCH SUBSCRIBER (E.G., IF SUBSCRIBER IS A CORPORATION OR OTHER LEGAL ENTITY). You may not access or use the Services or accept these TOS, if (a) You are not of legal age or do not have authority to form a binding contract with Company; or (b) You are prohibited from receiving or using the Services.

Company may modify these TOS from time to time at its sole discretion. In the event Company makes any substantial changes, Company will inform You by sending an email to the last email address You provided to Us and/or by posting notice of the change on the Services. Any changes to these TOS will be effective upon the earlier of 30 calendar days following our dispatch of an email notice to You or 30 calendar days following our posting of notice of the change(s) on the Services. These changes will be effective immediately for new users of the Services. Company may require You to provide consent to the updated TOS in a specified manner before further use of the Service is permitted. Otherwise, Your continued use of the Services constitutes Your acceptance of the changes. Please regularly check these TOS.

IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT ACCESS OR USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. PLEASE READ IT CAREFULLY.

1. USE OF SERVICES.

1.1. Grant. Subject to the other provisions of this Agreement, Company grants to You a non-transferable, non-exclusive, worldwide limited right to access and use the Services for your internal business processes in accordance with documentation and policies made available by Company relating to the Services.

1.2. Your Equipment. You will be solely responsible for obtaining and maintaining appropriate equipment and ancillary software, resources, and services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating system(s), and web browser(s) (collectively, “Your Equipment”). You will ensure that Your Equipment complies with all configurations and specifications set forth in Company’s published documentation. You are responsible for maintaining copies and backing-up any data or content You input or upload into the Services or that are otherwise important to You and/or Your business.

1.3. Restrictions. You will not: (a) make the Services or any component of the Services available to any third party other than as contemplated by this Agreement or expressly authorized in writing by Company; (b) resell, lease, distribute, transfer or otherwise make available the Services on a time-sharing or service bureau basis; (c) use or access the Services (including any component of the Services) in any way that threatens the integrity, performance or availability of the Services or other subscribers, users, or individuals; (d) attempt to gain unauthorized access to the Services, including any data stored or processed therein; (e) decompile, disassemble, or reverse engineer the Services, in whole or in part; or (f) use or reference the Services to develop or offer a competing service or product.

1.4. Ownership of Services. Except for Your limited right to access and use the Services under the Agreement, Company (or its licensors) owns and reserves all other rights, title, and interest in and to the Services (including all improvements or derivatives thereof). You hereby agree to assign and hereby assign to Company any right, title and interest in and to any feedback, suggestions, ideas, enhancement requests or other similar input (“Feedback”) provided by or on behalf of You relating to the Services.

1.5. Third-Party Materials. Certain items relating to the Services, including software code, data, models, or content provided with, or needed to access or use, the Services may be subject to “open source,” “free software,” “creative common” or similar licenses or agreements (“Third Party Materials”). Third Party Materials are not subject to the terms and conditions of this Agreement, except for this Section, the disclaimer of warranties and the limitations of liability, and as expressly provided. Instead, each item of Third Party Material is licensed under the terms of the license that accompanies such Third Party Material. Nothing in this document limits Subscriber’s rights under, or grants Subscriber rights that supersede, the terms and conditions of any applicable license for the Third Party Material, including any rights to copy, modify, or distribute Third Party Material under the applicable license. If Company makes modifications to such Third Party Material and if the applicable license requires that such modifications be made available and Company does not already publish such modifications via the applicable Third Party Material community, then Company will make its modifications available on its website or as otherwise required.

2. YOUR DATA.

2.1. Ownership of Your Data. Except as otherwise provided in this Section 1, You own any data, information or material originated by You that You submit or process in the course of using the Services (“Your Data”). Company has no ownership rights in or to Your Data. You will be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to Your Data. You represent and warrant that You have the right and all consents necessary to provide and input Your Data into the Services and for Company to use and process such data as permitted under this Agreement.

2.2. License to Your Data. You hereby grant Company an irrevocable, royalty-free license to Your Data to provide the Services and for the uses and purposes permitted under this Agreement. Upon the termination or expiration of the Agreement and subject to payments of all amounts then due and owing and Your request, Company will transfer a copy of Your Data, if any, in Company’s possession or control.

2.3. Aggregated and De-Identified Data; Learnings. Company (or its licensors or designees) may analyze, aggregate, or anonymize any data or information relating to your use of the Services for analytical purposes, to monitor, improve, or expand the Services (or its components), or for other training or commercial purposes. The results thereof (including improvements to Services and any de-identified or aggregated data sets not identifying You, but excluding Your Data) are Company’s (or its licensors or designees) sole and exclusive property.

2.4. Data Safeguards and Processing. Company will maintain reasonable and appropriate data safeguards, policies, and/or data processing addenda governing the processing of Your Data, which include procedures designed to mitigate unauthorized use or disclosure of Your Data in Company’s possession or control, and which are incorporated in the Agreement by reference (“Data Safeguards”).

2.5. Cloud and Third Party Processing. Company may use nationally recognized, third party cloud service providers, such as Amazon Web Services or Microsoft Azure to provide the Services and process and protect Your Data in accordance with industry standards.

3. CONFIDENTIAL INFORMATION.

All confidential information will be held in confidence, and the receiving party will take all steps reasonably necessary to preserve the confidentiality of the confidential information of the other party. The disclosing party’s confidential information will not be used or disclosed by the receiving party for any purpose except (a) as necessary to exercise rights or obligations under this Agreement, or (b) as required by law, provided that the other party is given a reasonable opportunity to obtain a protective order. The receiving party will limit its use of and access to the disclosing party’s confidential information to only those of its employees or representatives whose responsibilities require such use or access. The receiving party will advise all such employees and representatives, before they receive access to or possession of any of the disclosing party’s confidential information, of the confidential nature of the confidential information and require them to abide by the terms of this Section. Either party may disclose this Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are otherwise subject to a duty of confidentiality. Company’s confidential information includes the Services and any related non-public documentation and materials.

4. FEES AND PAYMENT.

4.1. Fees. The fees for the Services are the then-current fees corresponding with the subscription plan You select for the Services, as outlined in any registration and ordering documentation, and are subject to change from time to time. Company will endeavor to post changes regarding fees at least 30 days in advance, or otherwise provide notice of such fee changes through email or the Services. Check Company’s website and/or the Services regularly to see the then-current fees and information on any potential changes in fees. Subscriber’s continued use of the Services constitutes consent to the new fees. All fees are non-refundable, unless expressly provided otherwise.

4.2. Payment and Authorization. Subscriber understands and agrees to pay all fees, in full without deduction or offset, for the Services, and specifically authorizes Company to charge the credit card (or other payment method and account supported by Company) provided by Subscriber during registration or otherwise in connection with these TOS or Services. In the event the credit card (or such other payment method or account) provided by Subscriber becomes invalid or blocked from processing payment, Subscriber will promptly provide Company with an alternative to be charged for the payment of any outstanding balances owed and reimburse Company for costs or expenses relating thereto. In the event that Subscriber fails to timely do so, Company will have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Subscriber’s access to or use of the Services, without further notice to Subscriber, until Subscriber has paid the full balance owed, plus any interest due at the rate of 18% per annum. Subscriber represents and warrants it has the authority to provide aforesaid authorizations and account information.

4.3. Miscellaneous. The fees and other amounts payable by Subscriber to Company do not include any taxes of any jurisdiction that may be assessed or imposed upon the Services, excluding taxes based on Company’s net income. Company may charge for and/or Subscriber will directly pay any such taxes assessed. Subscriber will promptly reimburse Company for any taxes payable or collectable by Company (other than taxes based upon Company’s net income).

5. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

5.1. General Warranty. Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement.

5.2. Company Warranties. Company warrants to You that it will use commercially reasonable efforts to (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. You must notify Company of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies.

5.3. Remedy. For breach of the express warranty set forth above, Your exclusive remedy will be the re-performance or correction of the deficient Services. If Company cannot or does not re-perform or correct such deficient Services and the deficiency is material, You may terminate as Your sole and exclusive remedy and Company’s sole liability.

5.4. Maintenance. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Company’s reasonable control, but Company will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.

5.5. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY MAKES NO REPRESENTATION OR WARRANTY, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, ACCURACY, OR NON-INFRINGEMENT. YOU ARE SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM THE SERVICES, AND RELIANCE AND DECISIONS RELATING TO, AND USE OF, THE SERVICES, INCLUDING ANY ERRORS OR OMISSIONS MADE BY THE SERVICES.

6. INDEMNITY AND LIMITATION OF LIABILITY.

6.1. Indemnity. Company will indemnify, defend, and hold You harmless from any third party claim of direct intellectual property infringement caused solely by Company’s intellectual property provided under this Agreement, except to the extent caused by Subscriber’s unauthorized use thereof or Your Data. You will indemnify, defend (at Company’s option), and hold Company and its affiliates, successors, and assigns, harmless from any third party claim and any related damages, losses, costs and expenses relating to Your use of the Services or Your Data.

6.2. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OPPORTUNITIES, EFFICIENCIES, REVENUE, OR SAVINGS) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT OR RELATING TO THE SERVICES OR DATA SAFEGUARDS WILL, UNDER NO CIRCUMSTANCES, EXCEED THE FEES ACTUALLY PAID BY THE SUBSCRIBER TO COMPANY DURING THE PRIOR 12 MONTHS UNDER THIS AGREEMENT FROM THE LAST EVENT GIVING RISE TO LIABILITY OR FIFTY DOLLARS ($50) (IF NO FEES ARE APPLICABLE BECAUSE OF A FREE TRIAL OR OTHERWISE), WHICHEVER IS HIGHER (THE “CAP”). THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO A PARTY’S WILLFUL MISCONDUCT, SUBSCRIBER’S UNAUTHORIZED USE OR DISCLOSURE OF THE SERVICES OR RELATED INTELLECTUAL PROPERTY OR INFORMATION, OR YOUR INDEMNIFICATION OBLIGATIONS.

7. TERM AND TERMINATION.

The initial term of the Services will be as specified in the registration or ordering process. If an initial term is not specified, the initial term will be one month. The term will automatically renew for the duration of the initial term, unless a party provides the other party at least 30 days’ written notice of non-renewal or if otherwise provided in this Agreement. Either party may terminate for the uncured material breach of the other party or as expressly provided otherwise in this Agreement. Any terms and conditions, including without limitation disclaimers and limitations of liability, indemnity obligations, confidentiality obligations, and the restrictions in Section 1.3, will continue to apply after termination or expiration as necessary to give effect to the intent of this Agreement. Upon termination or expiration, Subscriber will cease using or access the Services. Subscriber will remain responsible for paying the fees for the then current subscription term, unless Subscriber is terminating for Subscriber’s uncured material breach or as expressly provided otherwise.

8. MISCELLANEOUS.

8.1. Notices. Company may give notice applicable to Company’s general subscriber and user base by means of a general notice on the Services, and notices specific to You by electronic mail to Your e-mail address on record in Company’s account information or by written communication sent by first class mail or pre-paid post to Your address on record in Company’s account information. If You have a dispute with Company, wish to provide a notice under these TOS, or becomes subject to insolvency or other similar legal proceedings, You will promptly send written notice to Company at [email protected].

8.2. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, terrorism, hostility, or sabotage or other criminal attack; act of God; electrical, internet, or telecommunication interruption or outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license) or changes in law hindering or preventing Company’s performance; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either party may terminate upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for the Services provided.

8.3. Governing Law. This Agreement will be construed and enforced in accordance with the laws of the State of Delaware excluding choice of law; provided, however, that the terms of any applicable law now or hereafter enacted that is based on or similar to the uniform computer information transactions act drafted by the national conference of commissioners on uniform state laws will not apply. SUBSCRIBER AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN THE STATE OF DELAWARE AND HEREBY WAIVES ITS RIGHT TO A JURY TRIAL.

8.4. Independent Contractor. No joint venture, partnership, employment, or agency relationship exists between Company and You as a result of the TOS, the Agreement, or use of the Services.

8.5. Assignment. You may not assign the TOS without the prior written approval of Company, such approval not to be unreasonably withheld or delayed, provided that such approval will not be required in connection with a merger or acquisition of all or substantially all of Your assets. Company may freely assign these TOS at its discretion. Any purported assignment in violation of this Section will be void.

8.6. Entire Agreement. These TOS represent the parties’ entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. If any provision of the TOS is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.