Agreement last updated: 27th August 2020
Thank you for choosing Virtually for your business. When you use our products and services you’re agreeing to our terms, so please read these Terms of Service carefully as they contain important information regarding your legal rights and obligations.
Virtually provides ‘all-in-one’ virtual meeting software services (“Software Service”). You can access our Software Service via a sign upp page on our Website.
These Terms of Service (“Agreement”) apply to any use of and access to the Services by you and your Affiliates. By accessing or using the Services (or enabling an Affiliate to access or use the Services), you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, you may not access or use any Services.
This Agreement is effective (“Effective Date”) on the earlier of (a) the date you accept this Agreement by confirming your registration or (b) the date you (or an Affiliate) first access or use the Services.
This is a legal agreement and you represent that you have authority to make these commitments on behalf of your organisation.
- Agreement. This Agreement is a binding legal agreement between you and the applicable Virtually Entity indicated in Section 14.4 below (“Virtually”, “we”, “us” or “our”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and Virtually are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
- This Agreement applies to any use of the Services, whether in connection with a paid or free subscription.
- Certain additional terms apply to personal information that originates from the EU, UK, or pertains to CA residents.
- As we update our products and services, we may update this agreement. If those updates are significant, we’ll notify you. You’ll always be able to access the current agreement online.
- Changes to the Agreement. We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement, as may be updated by Virtually from time to time, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by emailing hello[at]virtually.video. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement. The date of this latest Agreement is at the top of the Agreement.
- Additional terms apply to certain products that we provide.
- The Service Level Agreement describes our uptime commitments for the software.
- Access and Service Levels. Virtually will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement. During the Subscription Term (defined below), the Software Services will meet the service levels that are suitable for virtual meeting services.
- We may temporarily suspend your access for things like scheduled maintenance, or if a natural disaster occurs. We may also change or discontinue particular features or functions of our Services at any time.
- Changes to Services. In addition to this, we reserve the right to suspend any Services (a) in connection with a Force Majeure event b) if we believe any malicious software is being used in connection with your account, or (c) during planned downtime as provided in the SLA. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.
- We aren’t responsible for any third party products that are integrated with or used in connection with the Services.
- Free, Trial and Beta Services. Virtually may in its sole discretion offer free, trial or beta Services from time to time at no charge. Notwithstanding anything to the contrary herein: (a) any free, trial or beta Services are provided “AS IS” with no warranties of any kind; and (b) Virtually may discontinue any free, trial or beta Services or your ability to use such Services at any time, with or without notice and without any further obligations to you. Without limiting the generality of the foregoing, free Services that have not been accessed or used for 12 consecutive months may be terminated by us. Virtually will have no liability for any harm or damages suffered by you or any third party in connection with any free, trial or beta Services.
- Virtually may offer special pricing, credits, and/or discounts to you or your Affiliates for the Services contingent upon timely procurement, and continued material usage, of the Payment Processing Services.
You are responsible for making sure that your Affiliates and End Users comply with the terms of this agreement and applicable laws.
- Liability for Affiliates and End Users. You are responsible for all activity occurring under or relating to your account, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users. You will ensure that your Affiliates and End Users comply with relevant provisions of this Agreement, including any Supplemental Terms and acceptable use policies provided or made available by Virtually, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use, as appropriate, by Affiliates and/or End Users, and any act or omission of an Affiliate or End User that does not comply with this Agreement will be deemed a breach of this Agreement by you. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact End Users through the Services, as applicable, in accordance with applicable laws and regulations.
- You are responsible for providing accurate data and collecting and protecting that data as required by law. You are responsible for the things that allow you to access our Services.
- Data; Unauthorised Access; Maintaining Networks. You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (b) prevent unauthorised access to, or use of, the Services, and notify Virtually promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.
- You agree that you and anyone you’re responsible for in this Agreement won’t violate the Agreement or engage in any of the prohibited conduct.
- Restrictions on Use. You and your Affiliates and End Users will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (v) restrict or inhibit any other person or entity from using the Services; (vi) remove any copyright, trademark or other proprietary rights notice from the Services; (vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store Services content; or (ix) use the Services to send unsolicited electronic messages (aka spamming); or (x) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services. Notwithstanding subsection (x) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, Virtually grants to the operators of public search engines permission to use spiders to copy materials from the Websites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Virtually reserves the right to revoke these permissions at any time and without notice.
- User Names and Passwords. Virtually may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of Virtually. You, and not Virtually, are responsible for any use or misuse of user names or passwords associated with your account.
You will obtain necessary consent from End Users before messaging them using the Services.
- Consent. You are responsible for ensuring you have obtained the requisite level of consent necessary from End Users when utilising the Services.
Fees and Payment
- Software Services Fees. Fees for the Software Services (“Subscription Fees”) are set forth on the applicable Website(s).
- Change in Subscription Fees. Prices are subject to change for services from time to time. Virtually may also convert any free, trial or beta Service into a Service subject to a Subscription Fee upon notice to you, and your rights to such Service will be suspended if you do not pay the Subscription Fee.
- You agree to pay the fees required for the Services you are getting through this Agreement and give us permission to process those payments.
- Payment Terms. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated, fees must be paid in advance of each billing period. You will provide Virtually with valid and updated credit card information or another form of payment acceptable to Virtually. If you provide credit card information, you represent that you are authorised to use the card and you authorise Virtually to charge the card for all payments hereunder. By submitting payment information, you authorise Virtually to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by Virtually for purposes of acknowledging or completing any payment.
- You agree that there will be additional charges if your payment is late and we can suspend your account if payments are not made.
- Overdue Charges. Any amounts not received by the applicable due date may accrue late interest at the lesser of either (a) 1.5% of the outstanding balance per month, or (b) the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by Virtually within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and Virtually will be entitled to either suspend the Services or terminate the Agreement.
- You will let us know within 30 days if there has been a payment error.
- Payment Errors. If you believe a payment has been processed in error, you must provide written notice to Virtually within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If the Payment issue is not received by Virtually within such thirty (30) day period, the payment will be deemed final.
Intellectual Property Rights
Virtually retains all right to our own Intellectual Property.
- Virtually Intellectual Property. Virtually or its affiliates own all right, title and interest in and to the Services, the Virtually Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, Virtually and its affiliates reserve all rights, title and interest in and to the Services, the Virtually Data and Aggregated Data, including, without limitation, all related intellectual property rights. As between you and Virtually, all Virtually Marks are owned by Virtually or its affiliates. You agree not to display or use any Virtually Marks in any manner without Virtually’s express prior written permission. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.
- You have a limited license to use the Services as outlined in this Agreement. You may not do anything expressly prohibited in this section.
- License Grant to You. Subject to the terms and conditions of this Agreement, Virtually hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services set forth in an Order Form, during the Subscription Term and solely for your internal business purposes. You will not: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilised by Virtually in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
- You grant us a license to use your feedback, trademarks and logos in connection with providing the Services and for marketing your business and Virtually.
- License Grant to Virtually. You hereby grant to Virtually and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to (a) modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or Virtually’s or its affiliates’ business(es); and (b) to use your business name(s), trademarks, service marks, logos or any publicly available images (collectively, “Your Marks”) in connection with: (x) providing the Services, (y) for marketing and promotional purposes in connection with Virtually’s business, and (z) for Marketing Services. Virtually agrees that any use by Virtually of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to Virtually or its affiliates herein, all right, title and interest in and to Your Marks are expressly reserved by you.
Data Ownership and Use
You own all data you provide to us, but you also grant us a license to use it for certain purposes, for example, to improve our products or to provide you with complementary products of our partners.
- Your Data. As between you and Virtually, you own all right, title and interest in Your Data. You hereby grant to Virtually a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing Virtually’s or its affiliates’ products and services and/or complementary products and services of our partners. You represent and warrant to Virtually that you have all rights necessary to grant the licenses in this Section 6.1, and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
- Virtually Data. All right, title and interest in any data or information collected by Virtually independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information Virtually obtains about End Users through the Virtually App (whether the same as Your Data or otherwise), will be solely owned by Virtually (collectively, “Virtually Data”).
- Virtually reserves all rights to Aggregated Data.
- Aggregated Data. You agree Virtually owns all Aggregated Data. You also agree that nothing in this Agreement will prohibit Virtually or its affiliates from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.
- We will notify one another if either of us becomes aware that Your Data has been compromised.
- Unauthorised Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorised under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
- We are not responsible for resolving or intervening in any dispute over Your Data.
- Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees, Affiliates (former or current), or contractors of your business. You acknowledge and agree that Virtually has no obligation whatsoever to resolve or intervene in such disputes.
You and Virtually will protect each other’s Confidential Information and only use it to fulfil obligations stated in this Agreement.
- A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party’s prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 7 will restrict Virtually with respect to Virtually Data or Aggregated Data.
Term, Termination and Suspension
- Termination for Cause. Virtually may terminate this Agreement and/or any subscription, effective immediately upon notice to you, if you or an Affiliate are in material breach of this Agreement. In the event of a termination pursuant to this Section 8.2, in addition to other amounts you may owe Virtually, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term. In no event will any termination relieve you of your obligation to pay any fees payable to Virtually for the period prior to the effective date of termination.
- This describes what will occur and the rights that apply when the Agreement is terminated.
- Rights on Termination or Expiration. Upon termination or expiration of this Agreement (a) all Order Forms will automatically terminate and be of no force or effect; (b) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (c) except as specified in the following paragraph, Virtually will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law.
- For a period of no greater than thirty (30) days following a notice of termination, Virtually will make Your Data (except Cardholder Data) available to you through Virtually’s standard web services. Upon request by you within thirty (30) days following the termination date of this Agreement, and provided that; (a) you have paid Virtually all amounts owed under this Agreement; and (b) the Parties have an agreed upon a SOW (as defined in Section 2.7), Virtually will make Your Data in its possession or control available to you through Virtually’s data export service. After such thirty (30) day period, Virtually will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Subscription Term you require Virtually’s assistance in retrieving Your Data, additional fees may apply.
- We have the right to suspend or terminate the Services at any time if we detect harmful or illegal activity under your account.
- Right to Terminate or Suspend Services. We may suspend or terminate your access to and use of the Services (or any portion thereof) at any time without notice if we believe (a) that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to Virtually or any third party, (b) that we are required to do so by law, or (c) where the Parties do not agree on the use of a sub-processor.
Warranties & Disclaimer
You are responsible for keeping your account contacts and other account information up to date, and you must notify us if anything changes.
- Accuracy of Your Account Information. You agree to provide Virtually with complete and accurate account information, including your legal company name, street address, e-mail address, bank account, and such other information as may be requested by Virtually (collectively, “Account Information”). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify Virtually in writing if any Account Information changes. You agree that Virtually has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information.
- We promise that the software will perform as described in the Documentation.
- Warranty of Functionality. Virtually warrants to you that during a Subscription Term: (a) the subscribed Software Service will perform materially in accordance with the functionality described in the Documentation applicable to such Software Service; and (b) such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that Virtually will use commercially reasonable efforts to modify the applicable Services to achieve the functionality described above. If Virtually is unable to restore such functionality, you may terminate the Agreement by providing written notice to Virtually, and you will be entitled to receive a pro-rata refund of any pre-paid fees. Virtually will have no obligation with respect to a warranty claim unless notified by you in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilised in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any free, trial or beta Services.
- This is our disclaimer of legal liability for the quality, safety, or reliability of our Services.
- DISCLAIMER. Virtually MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. Virtually DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH Virtually AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “Virtually PARTIES”).
If we are sued by another party as a result of something you’ve done, you’ll cover the costs.
- You agree to indemnify, defend, and hold harmless the Virtually Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising from or relating to: (a) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement; (b) any access to or use of the Services by you, an Affiliate or End User; (c) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and (d) any dispute between you and another party regarding ownership of or access to Your Data
Limitations and Exclusions of Liability
These are the limits of legal liability we may have to you.
- Virtually EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY Virtually. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE Virtually PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT OR $100.00 (USD), WHICHEVER IS GREATER. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH Virtually AND THE Virtually PARTIES.
- IN NO EVENT WILL ANY Virtually PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF Virtually, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
- THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- In the unlikely event we end up in a legal dispute, you agree we will first attempt to resolve it through this informal process.
- Mandatory Informal Dispute Resolution. If you have any dispute with Virtually arising out of or relating to this Agreement, you agree to notify Virtually in writing with a brief, written description of the dispute and your contact information, and Virtually will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.
- If we can’t resolve a dispute after following the process above, then we must resolve through arbitration and not in court.
- Arbitration Agreement. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND Virtually, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED BETWEEN BOTH PARTIES WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND Virtually AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
- This Agreement controls our relationship.
- Entire Agreement. This Agreement constitute the entire agreement and supersede any prior agreements between you and Virtually with respect to the subject matter hereof. In the event of a conflict between an Order Form and this Agreement, the Order Form will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between Virtually, on the one hand, and you or any Affiliate, on the other hand.
- If any part of this Agreement can’t be enforced, the rest of the Agreement stands.
- Waiver and Severability. No waiver of any provision of this Agreement by Virtually will be effective unless in writing and signed by Virtually. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- We are entering this Agreement with you and you agree you won’t transfer it to anyone else. In an effort to make sure we meet our obligations to you, we can bring in other parties to fulfill the duties promised in this Agreement.
- Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without Virtually’s prior written consent. Virtually may assign, transfer or sublicense any or all of Virtually’s rights or obligations under this Agreement without restriction.
- You give us permission to contact you through the Services or via email for any Notices under this Agreement and agree to send any Notice to Virtually at the address listed in this Section.
- Notices. Any notices provided by Virtually under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from Virtually through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day.
- We are not liable for things that are not in our control, like natural disasters.
- Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Virtually’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
- You agree that we can communicate with you electronically.
- Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
- We are providing you Services for your business and this Agreement does not create a partnership or any other legal relationship.
- Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Virtually.
For the purposes of this Agreement, the following capitalised terms will have the meanings set forth for each of them below:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. “Affiliate” also includes any of your business locations and any Franchisees that have been designated to receive Services under this Agreement.
“Aggregated Data” means anonymised, de-identified, or aggregated data derived by or through the operation of the Services that is created by or on behalf of Virtually in compliance with applicable laws and that does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.
“Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and you. Cardholder Data is a subset of End User Data.
“Confidential Information” means (a) any software utilised by Virtually in the provision of the Services and its respective source code; (b) each Party’s business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; and (c) any special pricing or other non-standard terms agreed to by the Parties in an Order Form or other separate written document.
“Documentation” means online user guides, documentation, and help and training materials, as may be updated by Virtually from time to time, accessible at the applicable Website(s), and any other materials provided by Virtually as part of the Services.
“End User” means a business or individual that schedules or purchases products or services from you through the Services, that you market to, communicate with, or target through the Services, or that otherwise interacts with you through the Services, or that you authorise to use the Services in connection with your business.
“End User Data” means all data, information or other material about an End User that you, an Affiliate or End User provides or submits to the Services. End User Data may include Cardholder Data and such portions of Your Data that relates to specific End Users.
“Marketing Services” means Virtually’s online marketing platform, which allows consumers to locate Virtually subscribers and evaluate, review and book their services, directly through the Virtually App and through our partner applications.
“Virtually Marks” means all service marks, logos and product and service names used, applied for, registered, or otherwise owned by Virtually and its affiliates.
“Services” means the Software Services, Website, Apps, hardware and other services. “Services” excludes Third Party Offerings and our Virtually App.
“Software Service” is defined in the Introduction.
“Third Party Offerings” means any third party products, applications, websites, implementations or services, including loyalty programs, that the Services link to, or that interoperate with or are used in conjunction with the Services.
“Website” means https://www.Virtually.video.
“Your Data” means any data, information or material provided or submitted or made available by you and Affiliates to the Services. Your Data may include End User Data and Cardholder Data (and your or their representative’s data), but excludes Aggregated Data.
- our consumer-facing website (“Virtually.video”),
- our online business management software product (“Software Service”),
- our social media pages,
Collectively the “Virtually Services”.
The following terms will have the meanings indicated below.
“End User” means any individual who interacts with the Virtually Services, including individuals who book appointments, purchase services and otherwise interact with our Subscribers through the Virtually Services.
“Other Information” is any information that does not reveal your specific identity or does not relate to an individual, such as usage data not linked to any unique identifiers.
“Personal Information” means data that relates to or about an identified or identifiable natural person or, where applicable, household as defined under relevant law. This may include information such as name, address, telephone number, email address, or unique online identifiers.
“Subscriber” is any business or entity that subscribes to (or otherwise accesses or uses) our Software Service, including any staff, employees, consultants, advisors, or independent contractors accessing the Virtually Services on the Subscriber’s behalf.
Categories of Personal Information
While the Personal Information we collect varies depending upon the nature of the Virtually Services provided or used and our interactions with individuals, Personal Information we may collect or obtain includes:
- Contact details (e.g., name, address, email, telephone number, which may include third party emergency contact information),
- Personal details (e.g., date of birth, education, skills),
- Financial and transaction data (e.g., purchase history, account information, billing information, including credit card information etc.),
- Online identifiers (e.g. IP address, Device IDs, etc.), and
How We Collect Information
- Through the Virtually Services
- We collect information about you whenever you use the Virtually Services, for example:
- If you are an End User interacting with the Virtually Services through a Subscriber, we collect Personal Information that you provide to the Virtually Services when you initiate a transaction or otherwise engage with the Subscriber, such as to book an appointment, make a purchase, or respond to a marketing campaign.
- If you are a Subscriber, when you sign up for our Software Service, we ask for your company name, address, phone number, email, credit card information, photos, and other information about your business. If you attend one of our events (e.g., a tradeshow, webinar, or training), we may ask for your feedback, contact details or other information to follow-up with you, such as send you marketing communications consistent with your choices.
- We collect information about you when you interact with the Virtually Services. For example, if you initiate a transaction through the Virtually Services, such as a purchase, we may collect information about you, such as your name, email, phone number, address, credit card information, as well as any other information you provide in order to process the transaction. This information may be shared with others for the same purposes. We encrypt credit card numbers using industry standard technology. We may also collect other Personal Information at the request of the Subscriber you are transacting with or through. We may also store information that your computer or mobile device provides to us in connection with your use of the Virtually Services, such as IP address, operating system, device ID, and device type.
- From other sources
- In addition to the information we collect from you through Virtually Services, we may receive information about you from other sources, such as public databases, strategic and joint marketing partners, social media pages and platforms, people with whom you are friends or otherwise connected on social media platforms, as well as from other third parties. For example, if you elect to connect your social media account to your Virtually account, certain information from your social media account may be shared with us, including information that’s part of your profile or your friends’ profiles. We may also collect other Personal Information through the Virtually Services under the direction of our Subscribers.
How Personal Information May Be Used
We may use your Personal Information for legitimate business purposes, including:
- To provide the functionality of Virtually Services and related support.
- To create, and administer accounts, fulfil and record transactions, and provide you with related assistance (e.g., technical help, answer inquiries relating to Personal Information, etc.).
- To send administrative information to you, for example, information regarding our services and changes to our terms, conditions, and policies.
We will engage in these activities to manage our contractual relationship with you, with your consent, and/or to comply with a legal obligation.
- To provide you with marketing and promotional materials and opportunities and facilitate social sharing.
- To send you marketing communications and offer other materials that we believe may be of interest to you, such as to send you newsletters or other direct communications.
- To share information with other marketers (and their service providers) to permit them to send you marketing communications, consistent with your choices.
- To allow you to participate in competitions or similar promotions.
- To facilitate social sharing functionality if you choose to do so.
- We will engage in this activity with your consent, to manage our contractual relationship with you, or where we have a legitimate interest.
- For reporting and trending.
- To better understand you and our other users, so that we can tune and personalise our offering.
- For trending and statistics, and to improve our products and services
- We will engage in this activity because we have a legitimate interest.
- To accomplish our business purposes.
- For audits, to verify that our internal processes function as intended and are compliant with legal, regulatory or contractual requirements.
- For fraud and security monitoring purposes, for example, to detect and prevent cyberattacks or attempts to commit identity theft.
- For responding to legal duties, such as requests from public and government authorities.
- To defend our legal rights or those of others.
- We will engage in these activities to comply with a legal obligation or because we have a legitimate interest.
To the extent that we process your Personal Information based on your consent, you may withdraw your consent at any time.
What and How Personal Information May Be Disclosed
Certain privacy laws require that we disclose certain information about the categories of Personal Information (as defined by applicable law) that we have disclosed for a business purpose as well as the categories that we have “sold” as defined under applicable law.
Disclosed for a business purpose. In general, we may disclose the following categories of Personal Information (as described above in more detail) to our Partners and Service Providers to provide the Virtually services:
- Contact details,
- Personal details,
- Financial and transaction data,
- Other Virtually Services related data,
- Geolocation data,
- Online identifiers, and
- Cookie-related data.
We do not sell your data.
We may disclose your Personal Information:
- To our strategic partners and service providers who provide services to us or to our Subscribers, such as website hosting, data analysis, payment processing services, order fulfillment, information technology and related infrastructure provision, customer service, email delivery, credit card processing, auditing and other similar services.
- To our Subscribers if you are an End User and are using our Virtually Services to interact with that Subscriber. Please contact the Subscriber you interact with directly for more information on that Subscriber’s privacy practices.
- To third parties to permit them (or their own customers) to send you marketing communications, consistent with your choices.
- To sponsors of sweepstakes, contests and similar promotions, consistent with your choices.
- To you, through message boards, dashboards, challenges, chat, profile pages and blogs and other services to which you are able to post information and materials, including as described in the sections below titled “Testimonials, Ratings and Reviews” and “Public Forum.”
- To other website users and as well as to your social media account provider, in connection with your social sharing activity, such as if you connect your Facebook account to your Virtually account or our social media pages.
- In the context of a corporate transaction. If Virtually is involved in a sale or business transaction (e.g., merger or acquisition), Virtually will retain a legitimate interest in disclosing or transferring your Personal Information to other parties in the event of any reorganisation, merger, sale, joint venture, assignment, transfer or other disposition of all or any portion of our business, assets or stock (including in connection with any bankruptcy or similar proceedings), including in any negotiations leading to such. Such parties may include, for example, an acquiring or target entity and its advisors.
Please note that we may use and disclose Other Information for any purpose, except where we are required to do otherwise under applicable law. If we are required to treat Other Information as Personal Information under applicable law, then we may use it for all the purposes for which we use and disclose Personal Information. In some instances, we may combine Other Information with Personal Information. If we combine any Other Information with Personal Information, we will treat the combined information as Personal Information..
Explanation of Individual Rights
Right to a Copy/Access or Portability: You may have the right to request, free of charge, a copy of the specific pieces of Personal Information that we have collected about you in a readily useable format that allows you to transmit this information to another entity without hindrance.
Right to Know: You may have the right to request, free of charge, that we provide certain information about how we have handled your Personal Information, including the categories of Personal Information collected; categories of sources of Personal Information; business and/or commercial purposes for collecting your Personal Information; categories of third parties/with whom we have shared your Personal Information; and whether we sell any categories of Personal Information to third parties (however, we do not sell your Personal Information).
Right to Deletion: You may have the right to request deletion of your Personal Information that we have collected, subject to certain exemptions. Please note that we may need to retain certain information for recordkeeping purposes and/or to complete any transactions that you began prior to requesting a change or deletion (e.g., when you make a purchase or enter a promotion, you may not be able to change or delete the Personal Information provided until after the completion of such purchase or promotion). We may also retain residual information, such as records to document that your request has been fulfilled.
Right to Non-Discrimination: You may have the right not to receive discriminatory treatment on the basis of exercising your privacy rights under applicable law.
Right to Correct/Rectify: You may have the right to rectify any incorrect Personal Information we may hold about you.
Submitting a Request
Where applicable law allows for such a right, if you would like to request to access, correct, object to the use, restrict or delete Personal Information that you have previously provided to us, or if you would like to request to receive an electronic copy of your Personal Information for purposes of transmitting it to another company (to the extent this right to data portability is provided to you by applicable law), you may submit a request through the Virtually Services themselves or contact us at firstname.lastname@example.org with a subject line “Data Subject Request”. We will respond to your request consistent with applicable law.
If you are an End User you may be able to access, correct or request deletion of Personal Information that you have previously provided to us through your online customer account. These Data Subject Requests and other rights, including objection, restriction and portability (to the extent this right to data portability is provided to you by applicable law), can also be made directly to the relevant Subscriber.
For your protection, we may only implement requests with respect to the Personal Information associated with the particular email address that you use to send us your request, and we may need to verify your identity before implementing your request. Where applicable law allows for an authorised agent to submit such a request, please contact us at email@example.com with a subject line “Data Subject Request – Agent Request” and someone will be in touch with the agent and the End User to verify the request. We will try to comply with your request as soon as reasonably practicable. Moreover, where you are an End User, Virtually may need to forward your request and refer you to your Subscriber who may be better placed to address your request.
If you are under 18 years of age and a user of the Virtually Services, you may also be entitled to ask us to remove content or information that you have posted to the Virtually Service by submitting a request to firstname.lastname@example.org. Please note that your request does not ensure complete or comprehensive removal of the content or information if doing so infringes on the rights of another user.
If you are an End User of one of our Subscribers and would no longer like to be contacted by one of our Subscribers, or would like request the exercise of a right as set out above in relation to Personal Information held by a Subscriber, please contact the Subscriber directly.
Your choices regarding our use and disclosure of information
Information we collect may be used by Virtually for marketing purposes such as one-off promotional emailing, mobile text messages, direct mail, and sales contacts. We give you many choices regarding our use and disclosure of your Personal Information for marketing purposes. You may:
- Opt-in or opt-out from receiving electronic communications from us: If you are a user of Virtually and no longer want to receive marketing-related emails or mobile text messages from us on a going-forward basis, you may opt-out of receiving these marketing-related emails or mobile text messages by changing your preferences in your account settings or following the unsubscribe prompts from within the messages themselves. If you have provided your information to Virtually, and opt-out, Virtually will put in place processes to honour your request. This may entail keeping some information for the purpose of remembering that you have opted-out.
- Consent to sharing of your Personal Information with unaffiliated third parties for their (or their customers’) direct marketing purposes: We only share your Personal Information with unaffiliated third-parties for their marketing purposes when you have consented to the sharing. We do not share data with unaffiliated third-parties in the absence of your consent and such consent will only be valid for a single data transfer. To address what these unaffiliated third-parties do with your data once you have consented to the sharing, please contact the third-party to learn more about your choices.
We will try to comply with your request(s) as soon as reasonably practicable. Please also note that if you do opt-out of receiving marketing-related emails from us, we may still send you messages for administrative, transactional or other purposes directly relating to your use of the Virtually Services, and you cannot opt-out from receiving those messages.
Tracking and Advertising
You can log in to Virtually using sign-in services such as Facebook Connect or Google. These services will authenticate your identity and provide you with the option to share certain Personal Information with us such as your name and email address to pre-populate our sign-up form. Some services like Facebook Connect give you the option to post information about your activities on our websites to your profile page to share with others within your network. In addition, when using some of our mobile applications we may allow you a chance to tell friends about our services by accessing the contacts in your Facebook or other social media account.
Testimonials, Ratings and Reviews
If you submit testimonials, ratings or reviews to the Virtually Services, any Personal Information you include may be displayed in the Virtually Services. If you want your testimonial removed, please contact us at email@example.com.
We also partner with service providers to collect and display ratings and review content on our web sites.
Where a third-party payment processor is utilised as a sub-processor, we have implemented appropriate onward transfer safeguards over your Personal Information.
Links To Other Websites
Please note that we are not responsible for the collection, usage and disclosure policies and practices (including the data security practices) of other organisations, such as Facebook, Apple, Google, Microsoft or any other app developer, app provider, social media platform provider, operating system provider, wireless service provider or device manufacturer, including any Personal Information you disclose to other organisations through or in connection with the Virtually Services, including our social media pages.
We will retain your Personal Information for as long as needed or permitted in light of the purpose(s) for which it was obtained and consistent with applicable law. The criteria used to determine our retention periods include:
- The length of time we have an ongoing relationship with you and provide the Virtually Services to you (for example, for as long as you have an account with us or keep using the Virtually Services);
- Whether there is a legal obligation to which we are subject (for example, certain laws require us to keep records of your transactions for a certain period of time before we can delete them); or
- Whether retention is advisable in light of our legal position (such as in regard to applicable statutes of limitations, litigation or regulatory investigations).
Security of Your Information
The security of Personal Information is a high priority at Virtually. We seek to use reasonable technical, administrative and physical safeguards designed to protect Personal Information within our organisation. Unfortunately, no data transmission or storage system can be guaranteed to be 100% secure. If you have any questions about the security of your interaction with us please refer to our Security Policy
Use of Service By Minors
The Virtually Services are not directed or targeted at children under the age of sixteen (16), and we request that they do not provide Personal Information through the Virtually Services.
The Virtually Services are controlled and operated by us from Australia and are not intended to subject us to the laws or jurisdiction of any state, country or territory other than that of Australia. Your Personal Information may be stored and processed in any country where we have facilities, including Australia, or in which we engage service providers, and by using the Virtually Services you understand that your information will be transferred to countries outside of your country of residence, including Australia, which may have data protection rules that are different from those of your country. In certain circumstances, courts, law enforcement agencies, regulatory agencies or security authorities in those other countries may be entitled to access your Personal Information.
Some of the non-European Economic Area (“EEA”) countries are recognised by the European Commission as providing an adequate level of data protection according to EEA standards (the full list of these countries is available at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/adequacy-protection-personal-data-non-eu-countries_en. For transfers from the EEA to countries not considered adequate by the European Commission, we have put in place adequate measures, such as standard contractual clauses with our vendors (based on the clauses published at http://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32010D0087.
We ask that you not send us, and you not disclose, any sensitive Personal Information (e.g. information related to racial or ethnic origin, political opinions, religion or other beliefs, genetic characteristics, trade union membership or criminal background) on or through the Virtually Services or otherwise to us, except where explicitly requested or consented to.
Virtually, 14/20-40 Meagher Street, Chippendale, NSW, 2008
For the EEA, you may also:
- Contact us for your country or region, if applicable at firstname.lastname@example.org.
- Lodge a complaint with a data protection authority for your country or region or where an alleged infringement of applicable data protection law occurs. A list of data protection authorities is available at http://ec.europa.eu/newsroom/article29/item-detail.cfm?item_id=612080.
Profitwell – https://www.profitwell.com/privacy-policy