Terms of Service
Last updated 20 December 2021
Last updated 20 December 2021
The following terms constitute a legal contract between you, as either an individual or a single business entity (“you”, “your”, “customer”, “customers”), and VirtFusion Ltd (“VirtFusion”, “we”, “us” or “our”).
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING VIRTFUSION PROPRIETARY SOFTWARE (the “SOFTWARE”) OR OBTAINING A LICENSE KEY TO THE SOFTWARE OR USING THE SOFTWARE.
THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD TO YOU. BY DOWNLOADING THE SOFTWARE OR OBTAINING A LICENSE KEY TO THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THE AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THE AGREEMENT, YOU SHOULD CLICK THE “I DO NOT ACCEPT” BUTTON, TERMINATE THE DOWNLOAD PROCESS, AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE. THE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND US CONCERNING THE SOFTWARE, AND SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD RELATING TO THE SOFTWARE.
1.1. Grant of License. we hereby grant to you, and you accept, a limited, nonexclusive license to use the Software in machine-readable, object code form only, and the user manuals accompanying the Software (the “Documentation”), only as authorised in this Agreement. For purposes of this Agreement, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made by us and made available to end-users through an VirtFusion controlled web site. Notwithstanding the foregoing, we shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software.
1.2. Scope of Use. You may use one copy of the Software activated by a license key on a single server (virtual or physical) owned, leased, or otherwise controlled by you, at a single time. If you have multiple license keys for the Software, you may make and use as many copies of the Software as you have license keys. For purposes of this Agreement, “use” of the software means loading the Software into the temporary or permanent memory of a computer. Installation of the Software on a network server solely for distribution to other computers is not “use” of the Software, and is permitted, as long as you have a license key for each server (virtual or physical) to which the Software is distributed. The Software may not be used on or distributed to a greater number of computers than you have license keys. If you use or distribute the Software to multiple users, you must ensure that the number of users does not exceed the number of license keys you have obtained, or you will be in breach of this Agreement.
1.3. Copies and Modifications. You may not reverse engineer, decompile, disassemble, or otherwise translate the Software or any license keys you have obtained. You may not modify or adapt the Software or any license keys that you have obtained in any way. You may make one copy of the Software, the Documentation, and any license keys that you have obtained, solely for backup or archival purposes. Any such copies of the Software, Documentation, or license keys shall include any copyright or other proprietary notices that were included on such materials when you first received them. Except as authorised in this Section, no copies of the Software, Documentation, or license keys, or any portions thereof, may be made by you or any person under your authority or control.
1.4. Assignment of Rights. You will not sublicense, lease, rent, or lend your rights in the Software, Documentation, or license keys, as granted by this Agreement, to any party without our prior written consent.
2.1. Use Reporting, License Violations and Remedies. We reserve the right to gather data on key usage including license key numbers, server IP addresses, hypervisor counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this Agreement. We expressly prohibit simultaneous, multiple installations of our Software and hypervisor count overrides without prior written approval. Any unauthorised use shall be considered by us to be a violation of this Agreement. We reserve the right to remedy violations immediately upon discovery, by charging the then current list price of unauthorised keys to the credit card used to make the original, authorised purchase, or by any other means necessary. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any blocking of data required for compliance under this agreement is considered to be violation of this Agreement and will result in immediate termination of this Agreement pursuant to Section 4.
2.2. License Automatic Update and Expiration. Your license may include an expiration date that can result in the termination of the license. For permanent (non-lease) license keys, the license updates automatically unless we determine that a license is used in violation of the terms of this Agreement. If your license key is stolen, or if you suspect any improper or illegal usage of your license outside of your control you should promptly notify us of such occurrence. A replacement license will be issued to you and the suspect license will be allowed to expire. For lease licenses, your monthly payment for each month must be processed prior to the expiration date in order for the license updates to be performed. For your convenience we may provide license expiration warnings in the product interface should there be any issues that would cause the product license to eventually expire. It is your responsibility to contact us regarding any potential expiration that you deem inappropriate. we shall not liable for any damages or costs incurred in connection with the expired licenses.
2.3. Proprietary Rights to Software and Trademarks. You acknowledge that the Software and the Documentation are proprietary to us, and the Software and Documentation are protected under applicable national and international intellectual property laws, regulations and international treaties. You further acknowledge and agree that, as between you and us, we own and shall continue to own all right, title, and interest in and to the Software and Documentation, including all intellectual property rights (including all copyright, trade secret, patent, and trademark rights). This Agreement does not grant you any ownership interest in or to the Software or the Documentation, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trademarks or service marks that we use in connection with the Software or with services rendered by us are marks owned by us. This Agreement does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.
2.4. Confidentiality. You shall permit only authorised users, who possess rightfully, obtained license keys, to use the Software or to view the Documentation. Except as expressly authorised by this Agreement, you shall not make available the Software, Documentation, or any license key to any third party. You will use your best efforts to cooperate with and assist us in identifying and preventing any unauthorised use, copying, or disclosure of the Software, Documentation, or any portion thereof.
The Software will be available to you for use upon your receipt of one or more license keys. Upon acceptance of this Agreement, you may obtain one or more license keys by paying the requisite license fees, using the procedure set forth on our web site. The license fees paid by you are paid in consideration of the license granted under this Agreement.
This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, accessing, and using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until terminated. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. If you are leasing the Software, and fail to pay the applicable license fees, we shall have the right to shut down your server. You may terminate this Agreement at any time by: (i) providing written notice of your decision to terminate the Agreement to us and (ii) either returning the Software, Documentation, all copies thereof, and all license keys that you have obtained to us or destroying all such materials and providing written verification of such destruction to us. We may terminate this License Agreement if you breach any term of the Agreement by giving you written notice of your breach and our decision to terminate the Agreement. Upon termination of the Agreement by us, you agree to either return to us the Software, Documentation, all copies thereof, and all license keys that you have obtained, or to destroy all such materials and provide written verification of such destruction to us.
You will, at your own expense, indemnify and hold us, and our subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable legal fees (collectively, “Claims”), arising out of any use of the Software by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorised by this Agreement.
THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS,” AND WE DISCLAIM ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT AUTHORISED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, WE EXPRESSLY DO NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE.
7.1 Nothing in this Agreement shall exclude or limit the liability of either Party for their own acts of fraud (including fraudulent misrepresentation) or for death or personal injury caused by their negligence.
7.2 SUBJECT TO SECTION 7.1 ABOVE, IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF VIRTFUSION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.1. Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of England whose courts shall have exclusive jurisdiction over any and all disputes arising out of or in connection with it.
8.2. Severability. If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation.
8.3. Survival. Articles 2, 5, 6, 7, and 8 of this Agreement and all Sections thereof, shall survive the termination of this Agreement, regardless of the cause for termination, and shall remain valid and binding indefinitely.
8.4. Headings. The Article and Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
8.5. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
8.6. Billing. Billing is provided by a secure online portal at account.virtfusion.com. Secure online payments are accepted via credit/debit card. For customers with larger services, we also accept Bank Transfer. Invoices are created 7 days before they are due with notification via email, providing clear and adequate notice. If payment is not completed by the due date, service(s) will be automatically suspended by the billing system until payment is completed. Once the due date has passed, a 10% administration fee may be automatically added to the invoice. Should payment not be completed within 10 days of the due date, with no attempt from the customer to contact the billing department, services will be cancelled. All data on the involved services will be destroyed permanently.
8.7. Cancellation. All cancellations require 24 hour’s notice for all products and services. The time periods are prior to the date your invoice is due. Cancellation must be submitted through the billing system. Customers can login and request cancellation under their license settings or via a support ticket. Cancellations submitted via Email, Live Chat or any other mediums will not be accepted.
8.8. Money Back Guarantee & Refunds. Instead of a money-back guarantee, we offer a fully featured free evaluation where you can test our product to its full potential before making a purchase. Because our product is digitally licensed, refunds cannot be issued under any circumstances.
8.9. Chargebacks. Customers who choose to file a dispute against any payment made to VirtFusion will have their service immediately cancelled, without refund. Cancellations must be completed using the correct procedure as outlined above.
8.10. Delivery. On successful purchase of our product, your license will be automatically issued to you via email and accessible under your account via our billing system.
8.11. Price Changes. We may change the price of our product at any time and if you have a recurring purchase, we will notify you by email, or other reasonable manner, at least 30 days before the price change. If you do not agree to the price change, you must cancel and stop using our product before the price change takes effect. If there is a fixed term and price for your product offer, that price will remain in force for the fixed term. Early adopter products are only subject to inflation-based price changes for the lifetime of the service.