Terms of Service

1.Agreement structure and order of precedence

1. 1.1These Terms of Service, together with each Order Form, any applicable Schedule, the Data Processing Agreement, and the Service Level Agreement form the agreement between the customer identified in the Order Form (Customer) and SpotQA Limited trading as Virtuoso QA (Virtuoso).
2. 1.2The Schedules form part of the Agreement where they are stated to apply in an Order Form or where their application criteria are otherwise met. Each Order Form may identify the Schedules that apply to the relevant Services, but failure to list a Schedule does not prevent that Schedule applying where Customer accesses or uses Services, features or functionality described in that Schedule. For the avoidance of doubt, the Acceptable Use Policy and the Privacy Policy shall apply at all times to all users of the Platform regardless of whether Customer is on a Free Trial or not.
3. 1.3By executing an Order Form referencing these Terms, or by accessing or using the Services, Customer agrees to be bound by the Agreement.
4. 1.4In the event of conflict or inconsistency, the following order of precedence shall apply:
   1. (a)the Order Form;
   2. (b)the Data Processing Agreement, solely in respect of personal data processing;
   3. (c)any applicable Schedule, solely in respect of the subject matter of that Schedule;
   4. (d)the SLA, Acceptable Use Policy and other incorporated policies; and
   5. (e)these Terms.
5. 1.5The Data Processing Agreement, Acceptable Use Policy and Service Level Agreement are incorporated by reference as separate documents and are not a schedule to these Terms.

2.Definitions and interpretation

1. 2.1The definitions in Schedule A shall apply across the Agreement unless the relevant Order Form or Schedule states otherwise.

3.Services and access rights

1. 3.1Subject to payment of the Fees and compliance with the Agreement, Virtuoso grants Customer a non-exclusive, non-transferable, non-sublicensable right during the Term for Customer and its Permitted Users to access and use the Services specified in the Order Form solely for Customer's internal business operations.
2. 3.2Virtuoso may update, modify and improve the Services from time to time, provided that it will not materially reduce the core functionality of the paid Services during the then-current Term.
3. 3.3Customer is responsible for ensuring that its hardware, browser, systems, network connections and internet connectivity are sufficient to access and use the Services.
4. 3.4Scheduled and emergency maintenance may affect availability. Virtuoso will use commercially reasonable efforts to give advance notice of scheduled service disruption where practicable.
5. 3.5Where Virtuoso agrees to provide the Services on a Free Trial or Proof of Value, the terms set out in Schedule E shall apply.

4.Virtuoso obligations

1. 4.1Virtuoso undertakes to provide the Services substantially in accordance with the Documentation, the service levels as set out in the SLA, and with reasonable skill and care.
2. 4.2Virtuoso shall not be liable for breach of the undertaking at clause 4.1 to the extent that any non-conformance is caused by use of the Services contrary to Virtuoso’s reasonable instructions, or modification or alteration of the Services by any party other than Virtuoso (or someone authorised by Virtuoso).
3. 4.3If Virtuoso is in breach of the undertaking at clause 4.1, it will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with alternative but equivalent services. Such correction or substitution is the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 4.1.
4. 4.4Virtuoso:
   1. (a)does not warrant that the Services will be uninterrupted, error-free, free from vulnerabilities, secure against all possible threats, compatible with all Customer environments, or suitable for any particular business, legal, regulatory, security or compliance purpose; and
   2. (b)is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5. 4.5These terms shall not prevent Virtuoso from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these terms.
6. 4.6Virtuoso warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these terms and undertakes to comply with the provisions of the Bribery Act 2010.

5.Customer obligations

1. 5.1Customer is responsible for all access to and use of the Services by its Permitted Users and for ensuring that Permitted Users comply with the Agreement.
2. 5.2Customer shall ensure that account credentials are kept secure and confidential and shall notify Virtuoso promptly of any suspected unauthorised access or credential compromise.
3. 5.3Customer may allow contractors or other non-employees to use the Services only where they access the Services for Customer's benefit, within Customer's purchased usage rights and subject to Customer remaining responsible for their acts and omissions.
4. 5.4Rights granted to Customer do not extend to Customer Affiliates unless the relevant Affiliate is identified in the Order Form or Virtuoso otherwise agrees in writing.
5. 5.5Except as expressly permitted by the Agreement or by law which cannot be excluded, Customer shall not and shall not permit any person to:
   1. (a)copy, modify, distribute, resell, lease, sublicense or commercially exploit the Services or Virtuoso Materials except as expressly permitted;
   2. (b)use the Services to provide services to third parties or operate a service bureau without Virtuoso's written consent;
   3. (c)reverse engineer, decompile, disassemble or attempt to discover source code, algorithms, models, underlying structure, ideas or interfaces of the Services;
   4. (d)access or use the Services to build, train, benchmark, evaluate, support or improve a competing product or service;
   5. (e)scrape, crawl, harvest, index or systematically collect content or data from the Services except through APIs or integrations expressly authorised by Virtuoso;
   6. (f)circumvent security controls or usage limits;
   7. (g)introduce malware, viruses or harmful code into the Services;
   8. (h)remove proprietary notices from the Services or Virtuoso Materials;
   9. (i)use the Services in a way that threatens their integrity, security, performance or availability; or
   10. (j)use the Services in breach of the Acceptable Use Policy, applicable law or the Documentation.
6. 5.6Additional restrictions relating to AI Services and Composable Assets are set out in Schedule B and Schedule C respectively.

6.Customer Data and prohibited data

1. 6.1Customer retains ownership of Customer Data. Customer grants Virtuoso a non-exclusive licence during the Term to host, copy, process, transmit, display and use Customer Data as necessary to provide, secure, support and improve the Services and to perform Virtuoso's obligations under the Agreement. For the avoidance of doubt, Virtuoso’s rights to use Customer Data, Usage Data, aggregated data, de-identified data and Derived Assets are subject to any express restrictions in the DPA and Schedule B in relation to personal data and third-party AI model training.
2. 6.2The Services are not designed for the processing of live production personal data, special category data, or other sensitive data unless expressly agreed in the Order Form and, where applicable, the DPA.
3. 6.3Customer is responsible for ensuring that Customer Data is lawful, accurate, appropriate for use in the Services and does not infringe third-party rights.
4. 6.4Virtuoso shall not be liable to the extent a claim, loss or incident arises from Customer's breach of this clause, except to the extent caused by Virtuoso's breach of the Agreement, the DPA or applicable law.

7.Usage limits

1. 7.1Customer's use of the Services is subject to the usage limits set out in the Order Form, including Permitted Users, Executions, Parallels, Credits, retention periods or other usage metrics, and Virtuoso’s Fair Usage Policy.
2. 7.2Unless the Order Form states otherwise, usage rights are valid only during the applicable Term and unused usage rights have no cash value, are not refundable and cannot be carried forward.
3. 7.3Customer may purchase additional usage rights or additional Services during the Term. If Customer exceeds the usage rights set out in the applicable Order Form, Virtuoso may charge Customer for the excess usage at its then-current rates, require Customer to purchase additional usage rights, or suspend or limit further excess usage until an appropriate Order Form is agreed.
4. 7.4Customer acknowledges that the Services are not intended as a permanent storage or backup service. Customer Data and Customer Test Execution Data may be retained only for the period specified in the Order Form or Documentation.

8.Fees and payment

1. 8.1Customer shall pay the Fees specified in the Order Form or as otherwise agreed in writing between the parties. Fees are based on purchased access rights and are not dependent on actual usage. Unless the Order Form states otherwise, Fees are payable annually in advance, and are non-cancellable and non-refundable except as expressly stated in the Agreement.
2. 8.2Customer shall pay undisputed invoices within 30 days of invoice date or as otherwise stated in the Order Form. Customer must notify Virtuoso of any good faith invoice dispute within 15 days of receipt. Virtuoso may charge interest on overdue amounts at 2% above the Bank of England base rate or the highest rate permitted by law, whichever is lower.
3. 8.3If Fees are payable by instalments and Customer fails to pay an instalment within 30 days of its due date, Virtuoso may, on not less than 10 days' notice, require all remaining unpaid instalments for the applicable Term to become immediately due unless the overdue amount is paid during the notice period.
4. 8.4Virtuoso may increase Fees for a Renewal Term by the greater of 7% or the percentage increase in the UK Retail Prices Index over the preceding 12-month period, unless otherwise stated in the Order Form.
5. 8.5Fees are exclusive of VAT and other applicable taxes and must be paid without set-off, counterclaim, deduction or withholding except as required by law.
6. 8.6If payment remains overdue 30 days after the due date, Virtuoso may suspend access to all or part of the Services on not less than 5 Business Days' notice. Virtuoso shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.

9.Purchases through resellers

1. 9.1If Customer purchases Services through an authorised reseller, partner or marketplace provider approved by Virtuoso, the terms set out in Schedule G shall apply.

10.Ownership

1. 10.1As between the parties, Virtuoso owns all right, title and interest in and to the Services, Platform, Documentation, Virtuoso Materials, Usage Data, improvements, modifications, adaptations and derivative works of the Services.
2. 10.2Customer owns Customer Data and Customer-created test cases, journeys, workflows, reports, configurations and testing artefacts, excluding any Virtuoso Materials incorporated into them.
3. 10.3Virtuoso may create, use, commercialise and exploit Usage Data, insights, benchmarks, templates, learnings, best practices, product improvements and derived materials, provided they do not identify Customer, any individual or any third party and do not disclose Customer Confidential Information.
4. 10.4Virtuoso may create, generate, derive, transform, aggregate, combine, enhance or develop Derived Assets. All Intellectual Property Rights in Derived Assets vest exclusively in Virtuoso, provided Derived Assets do not identify Customer and do not disclose Customer Confidential Information except with Customer's prior written consent. Virtuoso may use and commercialise Derived Assets for any lawful business purpose, including making them available to other customers and users.
5. 10.5Customer grants Virtuoso a perpetual, irrevocable, worldwide, royalty-free licence to use feedback, suggestions, enhancement requests and recommendations relating to the Services without restriction or compensation.

11.Term and termination

1. 11.1The Agreement starts on the Effective Date and continues for the Initial Term stated in the Order Form or, if no period is stated, 12 months.
2. 11.2Unless the Order Form states otherwise, the Agreement automatically renews for successive periods equal to the Initial Term unless either party gives written notice of non-renewal at least 60 days before the end of the then-current Term.
3. 11.3Without affecting any other right or remedy available to it, either party may terminate the Agreement immediately by written notice if the other party:
   1. (a)fails to pay an amount due and does not remedy the default within 10 Business Days after written notice;
   2. (b)commits a material breach and fails to remedy it within 30 days after notice where capable of remedy; or
   3. (c)becomes insolvent, enters administration, liquidation or analogous proceedings, or ceases or threatens to cease business.
4. 11.4If Virtuoso validly terminates the Agreement under clause 11.3, all Fees payable for the remainder of the Term become immediately due and payable and no refund is due.
5. 11.5If Customer validly terminates the Agreement for Virtuoso’s uncured material breach under clause 11.3(b), Customer’s sole remedy is a pro-rata refund of prepaid unused Fees for the affected Services for the period after the effective date of termination.
6. 11.6On expiry or termination for any reason:
   1. (a)Customer's right to access the Services ends, subject to any express post-termination rights in an applicable schedule or attachment.
   2. (b)Customer shall have 30 days to export Customer Data unless the Agreement was terminated for cause and Virtuoso is legally or technically unable to provide export access. Customer Data not retrieved within thirty (30) days may be deleted by Virtuoso in its discretion.
7. 11.7Termination does not affect accrued rights or provisions intended to survive, including confidentiality, ownership, restrictions, payment obligations, indemnities, liability limits, the DPA where applicable, and post-termination restrictions relating to AI Services and Composable Assets.

12.Indemnities

1. 12.1Customer shall indemnify Virtuoso against direct losses, costs, expenses and liabilities against any and all claims arising out of or relating to: (a) Customer Data or Customer Contributions; (b) Customer's or Permitted Users' breach of the Agreement, law, the Acceptable Use Policy or the DPA; (c) use of the Services outside the Documentation or Order Form; or (d) infringement or misappropriation caused by Customer Data, AI Inputs (where applicable), Customer Contributions or Customer-configured outputs.
2. 12.2Subject to clause 12.3, Virtuoso shall indemnify Customer against direct losses, costs, expenses and liabilities arising from a third-party claim that Customer's authorised use of the Services infringes that third party's Intellectual Property Rights. Virtuoso shall have no liability for infringement claims or alleged infringement claims to the extent such claim arises from: (a) Customer Data, AI Inputs, Customer Contributions or AI Outputs (b) modification of the Services or part thereof by anyone other than Virtuoso or at Virtuoso’s direction; (c) the combination or use of the Services with software or other materials not provided or not approved for use by Virtuoso; (d) the use of the Services contrary to the Agreement, the Documentation, the Acceptable Use Policy, or Virtuoso’s instructions; (e) Customer's use of the Services or Documentation after notice of the alleged or actual infringement; or (f) Customer's negligence, wilful misconduct or breach.This clause states Customer’s sole and exclusive remedy, and Virtuoso’s entire liability, for any actual or alleged infringement of third-party Intellectual Property Rights by the Services.
3. 12.3If the Services become or are likely to become subject to an infringement claim, Virtuoso may, at its sole option, (a) procure such licence, authorisation or consent as is necessary to enable Customer’s continued use of the Services; (b) modify or replace the affected Services so that it becomes non-infringing without any material adverse effect to the functionality of the Services; or (c) if neither (a) nor (b) is commercially reasonable, terminate the affected Services and refund an amount equal to the unused portion of any Fees pre-paid in respect of such Services
4. 12.4Indemnification is subject to prompt notice, control of the defence, reasonable cooperation and no admission or settlement without consent, except where settlement imposes no obligation, admission or liability on the indemnified party.

13.Warranties and disclaimers

1. 13.1Each party warrants that it has authority to enter into the Agreement and will comply with applicable law in performing its obligations.
2. 13.2Virtuoso’s warranties in relation to the Services are limited to those expressly set out in clause 4. Except as expressly stated in the Agreement, the Services, Early Access Services, Documentation, Composable Assets, AI Services, AI Outputs and Deliverables are provided as-is and as-available and all implied warranties, conditions and terms are excluded to the fullest extent permitted by law..
3. 13.3Customer is responsible for determining whether the Services meet its requirements and for all decisions, results and conclusions derived from use of the Services.

14.Limitation of liability

1. 14.1Nothing in the Agreement limits or excludes liability for death or personal injury caused by negligence, fraud, fraudulent misrepresentation, deliberate default, wilful misconduct, Customer’s payment obligations, or any liability that cannot legally be limited or excluded.
2. 14.2Subject to clause 14.1, to the maximum extent permitted by law, neither party is liable for indirect, incidental, consequential, special or punitive loss, loss of profits, loss of revenue, loss of business, loss of goodwill, loss of anticipated savings, loss or corruption of data, or business interruption. Each party's total aggregate liability arising out of or relating to the Agreement shall not exceed the Fees paid or payable by Customer to Virtuoso for the Services giving rise to the claim in the 12 months before the event first giving rise to liability.
3. 14.3The liability cap applies in aggregate across Customer and its Affiliates and applies whether the claim arises in contract, tort, negligence, breach of statutory duty, restitution or otherwise.
4. 14.4Customer's remedies for SLA failures are as set out in the SLA. The SLA remedies are Customer's sole remedies for failure to meet service levels, but do not limit claims for confidentiality, data protection, security, indemnity or liabilities that cannot be excluded.

15.Confidentiality

1. 15.1The Parties agree that, during the Term, and for three (3) years thereafter, the Receiving Party will keep confidential and will not publish or otherwise disclose or use for any purpose other than as provided for in this Agreement the Confidential Information of the Disclosing Party.
2. 15.2Each party shall protect the other party's Confidential Information using at least reasonable care and shall use it only for purposes of the Agreement.
3. 15.3Confidential Information excludes information that is public without breach, already known without restriction, lawfully received from a third party, or independently developed without use of the Disclosing Party's Confidential Information.
4. 15.4The Receiving Party may disclose Confidential Information to employees, contractors, professional advisers and agents who need to know it for the Agreement and are bound by confidentiality obligations at least as protective as this clause.
5. 15.5The Receiving Party may disclose Confidential Information where required by law or regulatory process, provided it gives notice where legally permitted and discloses only what is required.
6. 15.6Trade secrets and highly sensitive technical, security, product and business information remain protected for so long as they remain confidential.
7. 15.7On request or termination, the Receiving Party shall return or destroy Confidential Information, except for legal, regulatory, audit, security or automated backup copies retained in accordance with ordinary business processes and protected under this clause.

16.Data protection and security

1. 16.1Each party shall comply with applicable Data Protection Legislation.
2. 16.2Where Virtuoso processes personal data on Customer's behalf, the DPA applies.
3. 16.3Virtuoso shall maintain an information security programme with administrative, technical and organisational safeguards designed to protect Customer Data against unauthorised access, disclosure, loss or misuse. Customer acknowledges that it remains responsible for securing its systems, credentials, endpoints and integrations.
4. 16.4Virtuoso may satisfy reasonable security assurance requests through standard security materials, certifications, audit reports, penetration test summaries, security whitepapers, questionnaires or other equivalent materials. Customer audit rights, if any, are as set out in the DPA.

17.General

1. 17.1Neither party is liable for delay or failure caused by events beyond its reasonable control, provided it gives notice where practicable and uses reasonable efforts to mitigate the effect.
2. 17.2Neither party may assign the Agreement without the other party's prior written consent, except to an Affiliate or in connection with a merger, reorganisation, change of control or sale of substantially all assets, provided the assignee assumes the assigning party's obligations.
3. 17.3Virtuoso may update these Terms from time to time by giving Customer at least thirty (30) days’ prior notice after which time such changes shall become binding. If Customer reasonably considers that an update materially reduces Customer’s rights or materially increases Customer’s obligations:
   1. (a)Customer may object to the update by giving Virtuoso written notice before the end of the notice period, setting out reasonable details of the grounds for its objection.
   2. (b)The parties shall make efforts in good faith to resolve the objection. If the parties are unable to resolve the objection before the proposed effective date of the update, the version of the Terms in force immediately before the proposed update shall continue to apply for the remainder of the then-current Subscription Term.
   3. (c)At the start of the next Renewal Term, Virtuoso’s then-current Terms shall apply unless otherwise agreed in writing. Customer’s renewal of, or continued access to or use of, the Services during any Renewal Term shall constitute acceptance of Virtuoso’s then-current Terms.

Notwithstanding the above, Virtuoso may make updates which take effect on shorter or immediate notice where required by applicable law, regulation, security requirements, third-party provider requirements, or where reasonably necessary to address misuse of the Services, a vulnerability, legal risk, or material operational risk.

4. 17.4Notices must be sent by email to the address specified in the Order Form. Notices to Virtuoso must be sent to notices@virtuosoqa.com. Customer acknowledges and agrees that any notification requirements under this Agreement shall be satisfied by Virtuoso notifying Customer on behalf of any Affiliates (if applicable).
5. 17.5No waiver is effective unless in writing. Invalid provisions are severed and replaced, where possible, with enforceable provisions achieving the intended commercial result.
6. 17.6The Agreement does not create a partnership, joint venture or agency relationship and does not confer third-party rights under the Contracts (Rights of Third Parties) Act 1999.
7. 17.7The Agreement is governed by the laws of England and Wales. The courts of England and Wales have exclusive jurisdiction over disputes arising from or relating to the Agreement, including non-contractual disputes.

Prior set of terms may be found here.