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These terms of service form part of an agreement (“the Agreement” or “this Agreement” or “Terms of Service”). The Agreement binds VMuse Lda (“VMuse”) and the individual or corporation using the VMuse services (“Your” or “Customer”). This agreement governs provision of VMuse’s services (the “Service”) and is effective the moment the customer uses any VMuse Service.
In addition to these Terms of Service, this Agreement incorporates the VMuse Service Level Agreement, separately published at http://vmuse.com/service-level-agreement/.
1. The Service.
1.1 The Customer hereby affirms that it is an entity capable of entering into legally binding agreements. Namely, the customer hereby affirms that he is not an individual less than 18 years old.
1.2 You may access and use the Service in accordance with this agreement. If no further notification is provided, this Agreement governs any Service you use from VMuse. Should a special service require specific policies, you will be notified upon signing up for the service, and provided the specific policy agreement.
1.3 The Service does not include any software, consulting service or other product or service not provided by VMuse (collectively, “Third Party Products and Services”).
1.3.1 Third party products and services include, without limitation: (A) any third party consulting services that assist the customer in utilizing the service, including services provided by third parties referred to customer by VMuse; and (B) any and all sofware and products executed in the virtualized hardware environment provided by the service.
2. Payment Plans & Terms
2.1 In the process of signup, the customer will define and accept the volume of computing resources comprising the Service (the “Plan” or “Service Plan”). Computing resources include but are not limited to: (i) Central Unit Processor computing units, measured in multiples of a 1Ghz 2007 Intel Opteron processor; (ii) Random Access Memory, measured in Gigabytes; (iii) Persistent disk storage, measured in Terabytes (iv) Internet data transfer, measured in monthly terabytes.
2.2 At any moment, the customer may change the computing resources comprising the Service, effectively changing his “Service Plan”. This event is a “Plan Upgrade” or “Plan Downgrade”.
2.3 The Plan has a monthly price (the “Fee”). The Fee is provided to the Customer prior to the acceptance of the Plan.
2.4 The Service is paid by the customer in billing cycles of one month.
2.5 For each billing cycle, the customer will pay the Fee associated with the plan used in the billing cycle.
2.5.1 In the event that the Customer used more than one Plan during the month of service, because of Plan Upgrades or Plan Downgrades, the Fee to be paid is the highest Fee of all the Plans used during the billing cycle.
2.6 Plans may be prepaid or postpaid.
2.6.1 In the case of prepaid plans: (i) Plan Upgrades require the restart of the billing cycle. Upon upgrade, the Customer will pay a full billing cycle of the new Plan, discounted pro-rata of the unused time in the billing cycle of the previous plan Fee. (ii) Plan Downgrades are effective, for billing purposes, at the beginning of the next billing cycle.
2.6.2 In the case of postpaid plans, Plan Upgrades and Plan Downgrades are effective immediately. At the end of each billing cycle, the Customer will pay the highest Fee from the set of Fees defined by the set of Plans used during the billing cycle.
2.7 Policies defined in 1.2 may define additional fees.
2.8 Customer will notify VMuse of any billing dispute, providing details regarding the nature of the dispute and the amount, within 15 days of the date on the invoice in question, or waive such dispute. Any payment not received when due (Late Payment) will, at VMuse’s option, bear interest at a rate of 1.5% per month from the date due until paid. In addition, VMuse may charge a late fee of 20€ (EUR) per week. VMuse may suspend or cancel the Service at any time if there are Late Payments.
2.9 For prepaid plans, the Customer will maintain a valid credit card on file at all times. VMuse will charge such card for Service fees or other fees on the first business day prior to any payment due-date. Customer will update credit card information as necessary. If any charge attempt is denied, VMuse may suspend or terminate Service without advanced notice. Should VMuse consider suspending or terminating Service because of a failed credit card charge attempt, VMuse will make reasonable efforts to provide notice to Customer.
3. Term and Termination
3.1 Unless terminated as set forth in this section 3, this Agreement will continue for the Billing Cycle period defined in section 2.4. The Agreement will automatically renew for successive periods of the same duration as the Billing Cycle period defined in section 2.4.
3.2 If the Service Plan is prepaid, the Customer may terminate the service up to the first business day prior to the billing date defined in section 2.9. The Customer may terminate the Service by downgrading to a Service Plan using zero computing resources, as defined in section 2.1.
3.3 If the Service Plan is postpaid, the customer may terminate the service up to one Billing Cycle plus one business day prior to the first day of the next Billing Cycle. The Customer may terminate the Service by downgrading to a Service Plan using zero computing resources, as defined in section 2.1.
3.4 Customer may terminate this Agreement for material breach, effective on 30 days’ written notice specifying the nature of the breach, provided this Agreement will not terminate if VMuse cures the breach before the effective date of termination. Customer will provide notice of termination or of its intent not to renew the Term through the online termination form in the Customer Portal.
3.5 VMuse may terminate the Service, any portion thereof, or this Agreement for material breach, including without limitation any breach of the payment obligations set forth in Section 2, without advanced notice.
3.6 The following provisions will survive any termination or expiration of this Agreement: (i) Sections 7(c), 8, and 9; and (b) any other provision that must so survive to fulfill its essential purpose. VMuse is not required to refund any fees paid or prepaid after termination or expiration of this Agreement, except to the extent that this Agreement specifically calls for a refund.
4. Acceptable Use
4.1 The Customer represents that it has read the Acceptable Use Policy, and will adhere to its requirements
4.2 Notwithstanding any provision to the contrary in this Agreement, and without limiting any of VMuse’s rights or remedies, VMuse may suspend Service in whole or in part in the event that VMuse reasonably suspects an AUP violation. In such event, VMuse will make reasonable efforts to notify customer of such suspension. VMuse is not liable for any Service suspension authorized by this section 4.2, or for any related loss, even if the suspected AUP violation did not occur.
4.3 VMuse has no monitoring obligation regarding AUP conformance by Customers in their use of the Service. VMuse may monitor Service usage for AUP conformance, and may disclose information regarding the use of the Service in order to comply with legal requirements for operation.
5. Service Levels and Remedies
5.1 VMuse will not be liable for Service interruptions or any Service failures, except as specifically set forth in the Service Level Agreement and in this section 5. In the event of hardware failure: (i) VMuse will make reasonable efforts to recover lost data, upon Customer request, but will not provide guarantee of recovery; and (ii) VMuse will provide such credits as are required by the SLA. Remedies listed in the SLA do not apply to any Service interruption authorized pursuant to Section 6 or any other provision of this Agreement, and VMuse will not be liable for such interruption.
5.2 All Service features, whether or not addressed in the SLA, are provided pursuant to the provisions of Section 8 below and the other terms and conditions of this Agreement.
6. Maintenance and Security
6.1 VMuse may interrupt Service to perform maintenance on VMuse equipment or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties. VMuse will exercise reasonable efforts to informa Customer before interrupting Service and to repair the Service promptly.
6.2 Customer is responsible for maintaining security and for maintaining patches and disaster recovery systems, except to the extent VMuse specifically accepts such responsibility by listing such service features in Customer’s Signup (subject to the limitations of liability in Section 8 and elsewhere in this Agreement). Whether or not Customer’s Signup calls on VMuse to maintain back-ups, Customer will keep a back-up copy of all data hosted by VMuse. Customer will promptly report any Service failure to VMuse via the online ticketing system in the Customer Portal. VMuse is not responsible for providing physical access to or copies of software, data, or content stored on VMuse’s equipment under any circumstances and is not required to provide network access (i) after any termination or suspension of Customer’s Service or (ii) in the event of hardware failure, abuse by hackers or other third parties, improper administration by Customer, or other interruption of network access.
6.3 VMuse is not required to reimburse any expenses Customer incurs for technology diagnosis or repair, including without limitation expenses for outside consultants.
7. Private and Confidential Information.
7.1 VMuse is not responsible for use or misuse of data by any third party, including without limitation providers of Third Party Products and Services, the operator of any website linked to VMuse’s website, or any VMuse customer, even if VMuse hosts such customer’s Website. Customer understands that the Privacy Policy applies only to the Service and to VMuse’s website. VMuse may notify Customer of leaks or exposure of private data, but except to the extent required by law, VMuse is not required to provide such notification.
7.2 Customer will employ reasonable security precautions in its use of the Service, including without limitation encryption of sensitive data belonging to Customer or to its customers or users.
7.3 Customer will not use Confidential Information (as defined below) for any purpose other than to facilitate the Service. Except as specifically authorized in writing in advance by VMuse, Customer will not disclose Confidential Information to any third party, and will prevent any such disclosure of Confidential Information in Customer’s possession or control. Without limiting the generality of the foregoing, Customer will take reasonable precautions to protect Confidential Information and will not disclose Confidential Information to any of its employees or contractors who do not need to know. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; provided Customer gives VMuse advanced notice reasonably sufficient to allow VMuse to seek a protective order or otherwise to contest such required disclosure, and reasonably cooperates in such effort. Customer will promptly notify VMuse in writing of any misuse or misappropriation of Confidential Information that comes to Customer’s attention and will cooperate with VMuse in investigating any such misappropriation and in mitigating any damages caused. Upon termination or expiration of this Agreement or upon VMuse’s written request, Customer will return all Confidential Information to VMuse and certify, in writing, the destruction of any copies thereof.
(i) “Confidential Information” refers to any information VMuse provides to Customer in any form and marks “Confidential,” and any information VMuse discloses orally and identifies as “Confidential” on or before disclosure. However, Confidential Information does not include information that: (A) is in Customer’s possession at the time of original disclosure by VMuse; (B) is independently developed by Customer without use of or reference to information provided by VMuse; or (C) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction.
(ii) Customer agrees that breach of the provisions of this Subsection 7.2 might cause VMuse irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, VMuse will be entitled to preliminary, temporary, and/or permanent injunctive relief against such breach or threatened breach, without the necessity of proving actual damages.
8. Warranties, Disclaimers, & Limitations of Liability.
8.1 VMuse MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. VMuse does not warrant that the Service will be uninterrupted, error-free, or free from viruses or other harmful components. The Service is provided with no warranties regarding security, reliability, protection from attacks, data integrity, or data availability (including without limitation data integrity or availability related to cloud storage features of the Service). Except to the extent specifically provided in the SLA, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. No communication between Customer and VMuse will create a warranty or in any way alter or restrict any disclaimer of warranty or limitation of liability set forth in this Section 8 or elsewhere in this Agreement. As used in the previous sentence, “communications” include, without limitation, marketing materials and representations of salespeople, advice provided by VMuse or any of its representatives, quotes, Customer’s Signup, and any work order or other ordering document.
8.2 VMuse WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. VMuse’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER DURING THE 12 MONTHS PRECEDING THE INJURY GIVING RISE TO THE CLAIM.
8.3 Except to the extent specifically provided in Section 5 above, and except to the extent that applicable law specifically forbids such limitation of liability, VMuse WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM ANY OF THE FOLLOWING OR FROM ANY VMuse EFFORTS TO ADDRESS OR MITIGATE ANY OF THE FOLLOWING: (i) SECURITY BREACHES, INCLUDING WITHOUT LIMITATION EAVESDROPPING, THIRD PARTY ACCESS TO CUSTOMER DATA OR TO ASSIGNED COMPUTERS, THIRD PARTY ACCESS TO OR MISUSE OF PASSWORDS PROVIDED TO VMuse, AND INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (ii) RELEASE OR EXPOSURE, FOR ANY OTHER REASON, OF PERSONALLY IDENTIFIABLE INFORMATION OR OTHER PRIVATE DATA, INCLUDING DATA BELONGING TO CUSTOMER’S OWN CUSTOMERS AND OTHER USERS; (iii) DENIAL OF SERVICE ATTACKS, VIRUSES, WORMS, AND OTHER INTENTIONAL INTERFERENCE BY THIRD PARTIES, INCLUDING WITHOUT LIMITATION BY OTHER VMuse CUSTOMERS; (iv) LOSS OF DATA OR LOSS OF ACCESS TO DATA; (v) ACTIONS OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION OTHER VMuse CUSTOMERS AND THIRD PARTY PRODUCTS AND SERVICES PROVIDERS; (vi) ACTIONS OF VMuse EMPLOYEES, AGENTS, OR CONTRACTORS ACTING OUTSIDE THE SCOPE OF THEIR DUTIES; (vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ACCIDENTAL DISCONNECTION AND TERMINATION OF SERVICE; AND (viii) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE SERVICE. THE PROVISIONS OF THIS SUBSECTION 8(c) APPLY, WITHOUT LIMITATION, EVEN IF CUSTOMER PURCHASES SERVICE FEATURES ADDRESSING SECURITY, DATA INTEGRITY, DATA BACKUP, ATTACK PROTECTION, VIRUSES, SPAM, MONITORING, OR SYSTEM INTEGRITY. VMuse does not control and has not thoroughly reviewed all the websites linked to VMuse’s website or run by VMuse’s customers or by providers of Third Party Products and Services. With the exception of its own website, VMuse is not responsible or liable for the content or practices of any website, including without limitation third party websites referenced in the preceding sentence.
8.4 THE LIABILITIES LIMITED BY THIS SECTION 8 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF VMuse IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. VMuse’s limitations and exclusions of liability and disclaimers of warranty, set forth in this Section 8 and elsewhere in this Agreement apply equally to VMuse’s officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies. Customer acknowledges and agrees that VMuse has set its prices and entered into this Agreement in reliance upon such limitations of liability, and that such limitations of liability form an essential basis of the bargain between VMuse and Customer.
9. Indemnity.
Customer will defend, indemnify, and hold harmless VMuse (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from a claim by any of Customer’s customers or users, or any other third party, arising out of or related to Customer’s use of, misuse of, or failure to use the Service, including without limitation: (a) alleged Customer conduct that would breach this Agreement, including alleged infringement of intellectual property or privacy rights and other AUP violations; (b) security breaches or other alleged faults in the Service, including without limitation faults listed in the SLA and faults leading to the release or exposure of personally identifiable information or other private data (whether such data belongs to Customer, to one of Customer’s customers, or to other third parties); and (c) any action taken by VMuse as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, judgments, settlements, and costs, including without limitation attorneys’ fees.
10. Miscellaneous.
10.1 Title and intellectual property rights to the Service and all components thereof are owned by VMuse and its licensors and suppliers. All hardware and Internet protocol addresses provided by VMuse are licensed to Customer temporarily and remain VMuse’s sole and exclusive property. This Agreement does not grant Customer a license to any software used to provide the Service or associated with the Service (collectively, “Software”), or to any other software, by implication, by estoppel, or otherwise. Without limiting the generality of the foregoing, Customer will not reproduce, reverse engineer, decompile, or disassemble the Software. The logos, service marks, and trademarks (collectively, “Trademarks”) displayed on VMuse’s website and through the Service, whether or not registered, belong to VMuse and its licensors and suppliers. Neither this Agreement nor any VMuse website grants a license to any Trademark, by implication, by estoppel, or otherwise. Nothing in this Agreement transfers to VMuse any copyright in, trademark on, or other ownership interest in any data or content of Customer. However, VMuse may include Customer’s name in any list of customers used for marketing or other purposes.
10.2 Customer is responsible for maintaining the confidentiality of its usernames and passwords, and Customer will not transfer or sell to any third party such usernames or passwords, or Customer’s access to the Service.
10.3 VMuse is not obligated to sell Customer any Service feature not listed in Customer’s Signup, or to provide more Service than required by such Signup.
10.4 During the Term and for 180 days thereafter, Customer will not encourage or solicit any VMuse employee or independent contractor to leave VMuse’s employ, or otherwise interfere with VMuse’s employment relationships.
10.5 The parties agree that the fees listed as liquidated damages in Subsection 2(c) and elsewhere in this Agreement do not constitute penalties and are reasonable in light of the harm that will be caused by breach, the difficulties of proof of loss, and the inconvenience and infeasibility of otherwise obtaining an adequate remedy. No remedy of VMuse provided in this Agreement for late payment, declined credit card charges, or other breaches will limit any other right or remedy of VMuse at law or in equity.
10.6 All written communications to Customer will be deemed delivered if sent to the contact points provided to VMuse at the time of order, or to such other contact points as Customer provides in writing. Customer will include a valid e-mail address with such contact points. All written communications to VMuse will be mailed to 360 Spear St., Suite 200, San Francisco, CA 94105, unless VMuse notifies Customer in writing of alternate contact information, except to the extent that this Agreement provides that such communication will be made through the Customer Portal.
10.7 VMuse may revise this Agreement from time to time by posting an amended version of these Terms of Service at the VMuse website and sending Customer written notice thereof; provided that if VMuse notifies Customer that new Terms of Service at such website are not intended to amend this Agreement, they will not. Such amended version will become effective at the start of the next Term, or the Term thereafter if the next Term starts less than 30 days after VMuse’s notice; provided that if Customer and VMuse first add to the Service in a way that increases fees, the amended version will become effective at the same time as such increased Service goes into effect. Notwithstanding the foregoing, revisions to the AUP, SLA, or Privacy Policy will become effective upon notice thereof. This Agreement may not be revised or amended in any other way, except through a written contract executed by authorized representatives of both parties. VMuse may provide notices of amended terms via e-mail, but no e-mail exchange will itself amend this Agreement, even if such messages purport to do so.
10.8 This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. The parties hereby consent to the personal and exclusive jurisdiction and venue of the federal and state courts of San Francisco, California.
10.9 Customer will not use the Service in any way that violates applicable laws or regulations.
10.10 No delay, failure, or waiver of either party’s exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
10.11 In the event of any conflict between these Terms of Service and any other element of this Agreement, or any ordering document or statement of work, these Terms of Service will govern.
10.12 Customer may not assign this Agreement or any of its rights or obligations hereunder without VMuse’s express written consent. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
10.13 If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired
10.14 This Agreement, including those documents incorporated by reference, embodies the final, full, and exclusive statement of the agreement between the parties, and supersedes all prior agreements, negotiations, representations, and proposals, written or oral, relating to its subject-matter.
