This web page represents our Terms of Service regarding the Kubicle website, located at kubicle.com,
and the tools we provide you (the "Website" or the "Service"). It was last posted on May 24th 2018. These Terms apply to both paid Services ordered by you, as well Services provided to you for trial or evaluation purposes.
Throughout these terms, "we" and "our" as used in this Agreement refer to Virtuoso Learning Limited (trading as Kubicle). This Agreement is entered into between Virtuoso Learning Limited (“Virtuoso”) and you (the “Customer”, “you” or “your”).
By using the Website and its Services (starting from the “Commencement Date”) you acknowledge that you have read, understood and agree with the Terms of Service
The individual trial period will be for seven (7) days from the date you activate the Trial, while the enterprise team trial period will be for fourteen (14) days from the data of activation. At the end of the trial period, you will no longer have access to any data you entered into the Service and any organization of such data you made using the Features will be lost unless you upgrade to a premium account prior to the expiration of the Trial period. Virtuoso may terminate the trial at any time and reserves the right to make any modifications to the Features.
In consideration of any License Fees paid by you to Virtuoso, and subject to your Terms of Sale, Virtuoso grants you and your Users a limited number of revocable, non-exclusive licenses to access and enjoy use of the Services for the License Term.
Obligations of Virtuoso
You acknowledge and agrees that Virtuoso’s obligation is limited to the provision of the Services and Content, subject to the terms and conditions set out in this Agreement.
Virtuoso shall use its reasonable endeavours to make available the Services through the Website during the Term.
Virtuoso reserves the right to change any aspect of the Website or the Services at its sole discretion.
You shall promptly notify Virtuoso in the event there is a breach of security or any unauthorised use of the Login Details of any of its Users.
Where a User leaves the employment or agency of your organization, it is your responsibility to remove that User's access to the Services. Virtuoso will provide you with reasonable assistance in removing the access of such a User.
Each party represents and warrants to the other party that it has the authority and capacity to enter into and be bound by this Agreement.
You agree to indemnify and hold Virtuoso, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and legal fees) from any claim or demand made by any third party due to or arising out of:
Use of the Services by you or your Users in breach of the terms of this Agreement, or the infringement by you or your Users of the rights of any person or entity in connection with the Services; or
Use of or access to the Services and the Website where such use was made using the Login Details of one of your Users, except to the extent that such damages, liabilities and claims are directly attributed to the acts, omissions or negligence of Virtuoso.
Intellectual Property Rights
You acknowledge and agree that all Content provided on the Website or through the Services, or made available to you in any way, or, presented to you by Virtuoso, is property of Virtuoso and is protected by copyright, trademarks and other applicable intellectual property rights. You and your Users shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and except as expressly permitted herein, shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or other proprietary rights without the express prior written consent of Virtuoso.
You fully acknowledge and understand that by agreeing to this Agreement, you are being granted a limited, revocable license to view the Content on the Website. For the avoidance of doubt, aside from the limited license outlined above, no rights (including intellectual property rights) of any kind in the Content of the Website or the Services are transferred or granted to you.
The sharing of individual Login Details between multiple Users is strictly prohibited. Virtuoso tracks User activity in order to ensure that multiple Users are not using the same Login Details. When this occurs, Virtuoso reserves the right to terminate this Agreement immediately.
Each license granted to use the Services is unique and personal to the User who is designated by you. It is prohibited to transfer or reallocate licenses to use the Services from one User to another User.
Each party agrees that it shall not use for any purpose or disclose to any third party any Confidential Information of the other party without the express written consent of the other party. Each party agrees to safeguard the Confidential Information of the other party against use or disclosure other than as authorised by or pursuant to this Agreement through measures, and exercising a degree of care at least to the extent that it exercises in the safeguarding the confidentiality of its own proprietary information, but no less than a reasonable degree of care under the circumstances
Each party acknowledges that the wrongful use or disclosure of Confidential Information of the other party may result in irreparable harm for which there will be no adequate remedy at law. In the event of a breach by the other party or any of its officers, employees or agents of its or their obligations, the non-breaching party may immediately terminate this Agreement without liability to the other party, and may bring an appropriate legal action to enjoin such breach, and shall be entitled to recover from the breaching party reasonable legal fees and cost in addition to other appropriate relief.
Term and Termination
This Agreement shall be for the Term.
Without prejudice to any of Virtuoso’s other rights and remedies, Virtuoso reserves the right, in its sole and absolute discretion, to take any action that it deems necessary and appropriate including, without limitation, suspending wholly or partly, temporarily or permanently, your (or your Users) use and/or access to the Website and/or the Services, in the event it considers that there is a breach or threatened breach of this Agreement.
Virtuoso shall have the right to terminate any User’s account or license with the Website with immediate effect in the event that you, your User or any party using a User’s Login Details commits a breach of this Agreement.
On termination of a User’s account or license with Virtuoso for any reason:
the User’s right to use the Services shall cease forthwith and the license granted under this Agreement to use the Services shall cease forthwith;
Virtuoso shall be entitled to be paid all sums due and unpaid in respect of a given license; and
these terms shall continue in force to the extent necessary to give effect to those of its provisions which expressly or impliedly have effect after termination.
Virtuoso shall have the right to terminate this Agreement with immediate effect where:
You fail to pay your agreed License Fees;
You commit a breach of this Agreement which it does not remedy within 14 days of being notified of the breach; or
You or your Users infringe on the intellectual property rights of Virtuoso.
You shall have the right to terminate this Agreement with immediate effect where:
Virtuoso commits a material breach of this Agreement which it does not remedy within 14 days of being notified of the breach; or
if the existence of this Agreement causes or is likely to cause you, your group, your organization’s member firm, or any related entity of any of your organization’s member firm to be in breach of your independence or other regulatory requirements from time to time; or
if Virtuoso shall become insolvent or go into liquidation, or shall pass a resolution for winding up or if a Court shall make an order to that effect, or shall have a receiving or administration order made against it or any event analogous to any of these events occurs.
In the event that this Agreement is terminated by you pursuant to clause 24 (i) or (iii) within the first 12 months of the Term, Virtuoso shall promptly provide you with a prorated refund of License Fees, where applicable.
On termination of this Agreement for any reason:
Your right to use the Services shall cease forthwith and any license granted under this Agreement to use the Services shall cease forthwith;
Virtuoso shall be entitled to be paid all sums due and unpaid under this Agreement; and
These terms shall continue in force to the extent necessary to give effect to those of its provisions which expressly or impliedly have effect after termination.
Exclusions and Limitations of Liability
All warranties, representations, guarantees, conditions and terms other than those expressly set out herein whether express or implied by statute, common law, trade usage or otherwise, and whether written or oral in respect of the Website are hereby expressly excluded by Virtuoso to the fullest extent permissible by law.
The Website and the Services are provided “as is” and Virtuoso makes no warranty or representation to the Customer with respect to them. Neither Virtuoso, nor any of our respective licensors, licensees, service providers or suppliers warrant that the Website or any function contained in the Website will be uninterrupted or error-free, that defects will be corrected, or that the Website or the servers that make the Website available are free from viruses or other harmful components. Virtuoso does not warrant or make any representations regarding the use or the results of the use of the materials or Content incorporated in the Website (or any third-party site accessed through the Website, if applicable) in terms of their correctness, accuracy, timeliness, reliability, or otherwise and you will be solely responsible for any damage to its computer system or loss of data that results from the download, viewing or copying of any such Content or material by Users.
You expressly understand and agree that (to the fullest extent permitted by law) Virtuoso shall not be liable for loss of profits or contracts, loss of income or revenue, loss of goodwill, losses incurred as a result of wasted employee or management time, anticipated savings, loss or corruption of, or damage to, data or other intangible losses, arising out of, or resulting from: (a) the use or the inability to use the Website or Services; (b) the use of any Content or other material on the Website or any website or websites linked to the Website; (c) unauthorised access to, loss of or alteration of the your transmissions or data; (d) any changes which Virtuoso may make to the Services or Content; (e) the deletion of, corruption of, or failure to store, data or communications data maintained or transmitted by or through your use of the Services; (f) failure of your authorised User to keep his or her Login Details secure and confidential or (g) any losses, claims, demands and damages (whether direct or consequential) of any kind and nature, known and unknown, arising out of or in connection with the use of the Website and the Services whether or not caused by or resulting from Virtuoso’s negligence; (h) an event of Force Majeure; or (i) any other matter relating to the Website. The limitations on liability in this clause shall apply whether or not Virtuoso has been advised of or should have been aware of the possibility of any such losses arising.
No exclusion or limitation of liability in this agreement shall affect or limit a party’s liability for death or personal injury arising from negligence, fraudulent misrepresentation, nor any other liability which cannot be excluded or limited under applicable laws.
Further, please note that no advice or information, obtained by you from Virtuoso personnel or through this Website shall create any warranty not expressly provided for in this Agreement.
Except for the liability of Virtuoso under clause 40 (Virtuoso Indemnity) and subject to clauses 26, 27, 28 and 29, the maximum aggregate liability of Virtuoso (including its respective agents and sub-contractors) to the Customer under, arising from or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall not exceed the License Fees paid or payable by the Customer to Virtuoso.
The accuracy of the information on the Website is not guaranteed and is subject to change and therefore Virtuoso cannot accept responsibility for any loss, damage or expense incurred upon using any Content or other information contained on the Website. Virtuoso therefore disclaims all liability and responsibility arising from any reliance placed on such Content or other information by you or any User of the Website, or by anyone who may be informed of any of its contents.
Virtuoso has no special relationship with or fiduciary duty to you. You acknowledge that Virtuoso has no control over, and no duty to take any action regarding: (a) which Users gain access to the Services; (b) what Content you access via the Services; (c) what effects the Content or Services may have on you or your Users; (d) how you may interpret or use the Content; or (e) what actions you may take as a result of having been exposed to the Content. You release Virtuoso from all liability for you having acquired or not acquired Content through the Services.
Whilst Virtuoso will try to provide you with uninterrupted access to this Website and its Services. Virtuoso may need to withdraw, modify, discontinue or temporarily or permanently suspend one or more aspects of this Website or the Services where Virtuoso has a legal, technical or other legitimate reason to do so (including technical difficulties experienced by Virtuoso or any Internet infrastructure). However, Virtuoso will try, wherever possible, to give reasonable notice of this.
The following definitions shall apply to this Agreement:
“Agreement” means this license agreement.
“Customer” means the party whose details are set out on the Cover Page.
“Commencement Date” means the date when consent is granted to this Agreement by you.
“Content” means all content and information, including but not limited to text, software, music, sound, photographs, graphics, video and any other material available on the Website or through the Services.
“Confidential Information” means any data or information that is proprietary to the party which discloses it and not generally known to the public, whether in tangible or intangible form, in whatever medium, whenever and however disclosed, including, but not limited to information that should reasonably be recognized as confidential information of the party which discloses it.
“Force Majeure” mean any non-performance, defective performance or delay in the performance of any of the Services through the Website caused directly or indirectly by any cause beyond Virtuoso’s reasonable control, including acts of God, war, hostilities, riot, fire, explosion, accident, flood, sabotage, terrorism, lack of adequate power or labour, strike, lock-out or other industrial action (whether or not relating to Virtuoso’s employees), or injunction compliance with governmental laws, regulations or orders.
“Login Details” means the unique and confidential username and password that identifies a User and allows that User to access the Services.
“Party” or “Parties” means Virtuoso and the Customer.
“License Fees” mean the fees payable for access to and use of the Services and are set out on the Cover Page.
“License Term” means the license term which is set out on your Terms of Sale. Where the License Term is stated in the Terms of Sale to be “5 Years”, this means that the license granted to a User under this Agreement shall continue for 5 years unless and until: (i) Virtuoso ceases trading; or (ii) the terms of this Agreement are breached leading to a termination of this Agreement or a license granted under this Agreement; or (iii) the Customer terminates an individual User's license.
The following general terms shall also apply.
This Agreement may not be assigned by the Customer without the prior written consent of the Virtuoso (which consent shall not be unreasonably withheld).
The headings contained in this Agreement are inserted for convenience of reference only and shall not in any way form part of nor affect nor be taken into account in the construction or interpretation of any provisions of this Agreement.
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute any party the agent of another Party, nor authorise any party to make or enter into any commitments for or on behalf of any other Party.
If Virtuoso fails to exercise or enforce a right under this Agreement that failure shall not constitute a waiver of such right or provision.
If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, that provision shall be deemed severed and the validity and enforceability of the remaining provisions shall not be affected. The Parties nevertheless agree that the court should endeavour to give effect to the Parties' intentions as reflected in the provision.
This Agreement sets out the entire agreement and understanding with respect to the subject matter of this Agreement and supersedes all representations, communications and prior agreements (written or oral).
Each Party acknowledges that on entering into this Agreement, it does not rely, and has not relied, upon any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether a party to this Agreement or not) except those expressly set out in this Agreement.
Amendment to this Agreement
This Agreement may not be altered unless agreed in writing by both Parties.
This Agreement shall be made subject to the laws of England and Wales which shall exclusively govern the interpretation, application and effect of this Agreement. The Courts of England and Wales shall have exclusive jurisdiction over all claims or disputes arising in relation to, out of, or in connection with, this Agreement.
Subject to clause 29, the aggregate liability of the Customer to Virtuoso under this Agreement (including under any indemnities) for all losses, damages, costs, claims and/or expenses suffered by Virtuoso arising out of or in connection with any breach or non-performance by Customer of the terms of this Agreement or any tort or breach of statutory duty in connection with Customer’s obligations under this Agreement shall be limited in the following ways:
You shall not be liable to Virtuoso for any loss of revenue, profits or business, or any indirect, special or consequential loss, irrespective of whether such loss was foreseeable or whether Virtuoso has been advised of the possibility that such loss may be incurred; and
Subject to clause 39(a) above, the amount recoverable shall be no more than the License Fees paid or payable by the Customer to Virtuoso
Virtuoso shall indemnify Customer against all losses, damages, liability, claims, costs, fines, penalties and expenses (including reasonable legal expenses whether or not proceedings are brought) awarded against or incurred by Customer as a result of or in connection with any claim made that the provision of the Services, Content and/or Website to the Customer or User under this Agreement infringes the rights of a third party (including intellectual property rights).
Each party shall comply with its obligations under the General Data Protection Regulation (“GDPR”) and all related guidance which arise in connection with this Agreement with regard to the processing of personal data in relation to the provision of the Services, Content and Website. “Personal data”, “data processor” and “processing” shall have the meanings given to them in the GDPR.
to the extent that it receives, or otherwise has access to, any Customer and/or User personal data, in its capacity as data processor in relation to Customer and/or User personal data: (i) only process Customer and/or User personal data strictly in accordance with Customer’s instructions; and (ii) put in place and maintain throughout the Term appropriate technical and organizational security measures to safeguard Customer and/or User personal data against unauthorised or unlawful processing and against loss, destruction, theft, damage or disclosure; and
allow its data processing facilities, procedures and documentation to be reviewed by Customer (and/or its agent), on reasonable request in order to ascertain compliance with the GDPR and shall assist Customer with such subject access request(s) as may be received.
Virtuoso shall provide the Services: (i) with all due skill, care and diligence and to the highest professional and industry standards; (ii) in accordance with all applicable law, rules and regulations; (iii) in a good and timely manner; and (iv) in accordance with any service levels.