These Terms of Service constitute a legally binding agreement (the “Agreement”) between you (collectively, “you,” “your,” or “user(s)”) and Virtuosica, Inc. (collectively, “Virtuosica,” “us,” “we,” “Company,” or “our”) governing your use of the services on https://virtuosica.com/ ( “Website”), any Virtuosica mobile application (“App”), and any other services or platforms that Virtuosica may offer (collectively, the “Platform”).
a. By accessing the Platform, accessing or using any information, Platform features, or resources available or enabled via the Platform, clicking on a button or taking similar action to signify your affirmative acceptance of this Agreement, or completing Virtuosica’s account registration process, you hereby represent that:
(i) you have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time or through the Platform;
(ii) you are of legal age in the jurisdiction in which you reside to form a binding contract with Virtuosica; and
(iii) you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization, or other legal entity you have named as the user during Virtuosica’s account registration process and to bind that company, organization or entity to this Agreement.
b. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Platform.
a. Types of Users
i. The term "you" and “User” as used in this Agreement will apply to all Virtuosica users, persons that visit the Website or App, and individuals or users who access and use the Platform on their own behalf or on behalf of an entity.
ii. Users that use the Platform to distribute, display, or stream live audiovisual content or works (“Performance Services”) are also referred to in this Agreement as “Artists.”
iii. If you use the Platform to book Artists to provide Performance Services, we refer to you as “Clients.”
iv. If you use the Platform to access or view Performance Services or specific Events (as defined herein), we refer to you as “Viewers.”
b. Performance Services and Events
i. Clients may engage or book Artists to provide Performance Services—involving audio, video, or both—for particular occasions or events (each, an “Event”). The details of each Event will be set forth in, and governed by, the parties’ Performance Contract (as defined herein) including:
- Scheduling details (i.e., date, time, and approximate length of the Event)
- Any limits on the number of, or criteria for, Viewers who can participate in the Event (i.e., maximum number of Viewers per Event or per login/video screen)
- Booking fees
- Mode of transmission for Performance Services at the Event
- Any other limitations, restrictions, or information
ii. Any Event that has been scheduled and confirmed by both the Client and the Artist through a properly executed a Performance Contract is referred to herein as a “Scheduled Event.” Any Event that has not been confirmed by both Client and Artist through a properly executed Performance Contract is referred to herein as a “Pending Event.”
iii. Clients may cancel and receive refunds for Scheduled Events as set forth in Virtuosica’s Refund Policy and Section 8(b) of this Agreement. Pending Events may be cancelled at any time without incurring any charges or penalties.
iv. When Artists agree to provide Performance Services at an Event, Artists agree to participate in the Event, for the full duration of the event, as scheduled and described in the parties’ Performance Contract. Artists may cancel Scheduled Events as set forth in Virtuosica’s Refund Policy. Pending Events may be cancelled at any time without incurring any charges or penalties.
v. No User may record, capture, screenshot, use, publish, reproduce, distribute, display, post, or share any portion of an Event unless expressly authorized by Virtuosica in writing and only using functionality that Virtuosica may make available on the Platform.
vi. Virtuosica reserves the right to monitor any Event and may cancel or end an Event or any User’s participation in an Event at any time, in its sole discretion. Virtuosica may make and maintain a recording of any Event for its monitoring and compliance purposes. Content derived from Events, will not be private and Users should not share or disclose any personal, private, or sensitive information relating to themselves or third parties. Virtuosica cannot guarantee the privacy of any Event.
vii. Clients and Viewers may end their participation in an Event at any time. An Event may also be ended at any time by Virtuosica or the Artist providing Performance Services at the Event. If the Event is ended due to a violation of this Agreement or other Virtuosica policy, Users must promptly notify Virtuosica in writing. Virtuosica will not be responsible for refunds or payouts to any participating User.
viii. Virtuosica will not be responsible or liable for any Event or its contents, or content from any participant in an Event.
c. Relationship with Virtuosica
i. Virtuosica merely makes the Platform available to enable Artists and Clients to find and transact directly with each other. Virtuosica does not introduce Artists to Clients, select Performance Services or Events for Artists, or select Artists for Clients. Through the Platform, Artists may be notified of Clients that may be seeking the services they offer, and Clients may be notified of Artists that may offer the services they seek; at all times, however, users are responsible for evaluating and determining the suitability of any Performance Services or Events, Clients, or Artists on their own. If users decide to enter into a Performance Contract (as defined herein), the Performance Contract is directly between the users, and Virtuosica is not a party to that Performance Contract.
ii. You acknowledge, agree, and understand that Virtuosica is not a party to the relationship or any dealings between Clients and Artists. Without limitation, users are solely responsible for:
- ensuring the accuracy and legality of any User Content (as defined herein);
- determining the suitability of other users for a Performance Contract (such as any interviews, vetting, background checks, or similar actions);
- negotiating, agreeing to, and executing any terms or conditions of Performance Contracts;
- providing Performance Services; and
- paying for Performance Services.
iii. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Performance Contract with another User, and for verifying any information about another user. Virtuosica does not make any representations about or guarantee the truth or accuracy of any Artist’s or Client’s listings or other User Content on the Platform, does not verify any feedback or information provided by users about Artists or Clients, and does not perform background checks on or guarantee the work of Artists or Clients. You acknowledge, agree, and understand that Virtuosica does not, in any way, supervise, direct, control, or evaluate Artists or their work and is not responsible for any Performance Services, Performance Contract terms, or content resulting from Performance Services.
iv. Virtuosica makes no representations about and does not guarantee, and you agree not to hold Virtuosica responsible for, the quality, safety, or legality of Performance Services, the qualifications, background, or identities of Users; the ability of Artists to provide Performance Services; the ability of Clients to pay for Performance Services; User Content and statements or posts made by Users; or the ability or willingness of a Client or Artists to actually complete a transaction. While Virtuosica may provide certain badges on Artist or Client profiles, such badges are not a guarantee or warranty of quality or ability or willingness of the badged Artist or Client to complete a Performance Contract and is not a guarantee of any kind, including, the quality of Performance Services, Events, or content resulting therefrom.
4. Contractual Relationship between Clients and Artists
i. Contracts for Performance Services
A. If a Client and Artist decide to enter into a Performance Contract, the Performance Contract is a contractual relationship directly between the Client and Artist. Clients and Artists have complete discretion both with regard to whether to enter into a Performance Contract with each other and with regard to the terms of any such contract. You acknowledge, agree, and understand that Virtuosica is not a party to any Performance Contract, that the formation of a Performance Contract between users will not, under any circumstance, create an employment or other service relationship between Virtuosica and any User or a partnership or joint venture between Virtuosica and any user.
B. With respect to any Performance Contract, Clients and Artists may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights), provided that any such agreements do not conflict with, narrow, or expand Virtuosica’s rights and obligations under the terms governing use of the Platform, including this Agreement and any applicable guidelines or policies. The parties to a Performance Contract can, if the parties prefer, agree to the Standard Performance Contract Terms (“Standard Terms”) in whole or in part, in addition to or instead of other such agreements. Only to the extent that they have not entered into another agreement or terms with respect to a Performance Contract, the parties to a Performance Contract agree that the Standard Terms apply to their Performance Contract.
C. The Standard Terms are provided as a sample only and may not be appropriate for all jurisdictions or all contracts. Users are responsible for complying with any local requirements, including applicable laws, rules, and regulations. Virtuosica does not assume any responsibility for any consequence of using the Standard Terms. The Standard Terms are not intended to and do not (1) constitute legal advice, (2) create an attorney-client relationship, or (3) constitute advertising or a solicitation of any type. Individual arrangements for Performance Services are fact-specific, and requirements vary by situation and jurisdiction and therefore any party should seek legal advice from a licensed attorney in the relevant jurisdictions. Virtuosica expressly disclaims any and all liability with respect to actions or omissions based on the Standard Terms.
ii. Disputes Among Users
A. For disputes arising between Clients and Artists, you agree to abide by the dispute process that applies to your particular Performance Contract. If the dispute process does not resolve your dispute, you may contact Virtuosica to assist or pursue your dispute independently, but you acknowledge and agree that Virtuosica is not obligated to provide any dispute assistance.
B. If Artists or Clients intend to obtain an order from any arbitrator or any court that might direct Virtuosica or its affiliates to take or refrain from taking any action with respect to an Account (as defined in Section 3 below), that party will (1) give us at least five business days’ prior notice of any hearing; (2) include in any such order a provision that, as a precondition to obligation affecting Virtuosica, we be paid in full for any amounts to which we would otherwise be entitled; and (3) include in any such order a provision that, as a precondition to any obligation affecting Virtuosica, Virtuosica be paid for the reasonable value of the services to be rendered pursuant to such order.
iii. Confidential Information
A. Users may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in the Standard Terms. If and to the extent that users do not articulate any different agreement with regard to confidentiality, then they agree that Section 2(d)(iii) (Confidential Information) applies.
B. To the extent that a user provides confidential information to another user, the recipient will protect the secrecy of the discloser’s confidential information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care. Upon written request from a user, the party that received confidential information will promptly destroy or return the disclosing party’s confidential information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
a. Account Eligibility
i. Before you can use the Platform, you will need to register for an account (“Account”). Users may be able to create an Account by logging in through certain social media networks or pre-existing accounts on external platforms or websites, as identified on the Platform (“External Accounts”). We reserve the right to bar anyone from registering for an Account.
ii. By using the Platform or registering for an Account, you represent and warrant that:
- You are at least 18 years old;
- You are legally qualified to enter a binding contract with Virtuosica;
- You are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country;
- You are not on any list of individuals prohibited from conducting business with the United States;
- You are not prohibited by law from using the Platform;
- You do not have more than one Account; and
- You have not previously been removed from the Platform by Virtuosica, unless you have our express written permission to create a new Account.
iii. The Platform is not available to persons under the age of thirteen (13). If you are between the age of thirteen and the age of legal majority in your jurisdiction of residence, you may only use the Platform under the supervision of a parent or legal guardian who agrees to be bound by this Agreement.
iv. When using the Platform or creating an Account on behalf of a company, entity, or organization (collectively, “User-Entity”), you represent and warrant that you: (1) are an authorized representative of that User-Entity with the authority to bind that organization to this Agreement and grant the licenses set forth herein; and (2) agree to the terms of this Agreement on behalf of such User-Entity.
v. Specifically, a management company, manager, agency, agent, publicist, or other individual or organization (each, an “Artist Representative”) may register an Artist (“Affiliated Artist”). By registering, the Artist Representative represents and warrants, for itself and each Affiliated Artist, that: (1) Artist Representative is the authorized representative of the Affiliated Artist (and, if the Affiliated Artist is below the age of 18, is registering with any consent required of the Affiliated Artist’s parent or legal guardian and agrees to the terms of this Agreement; (2) neither the Artist Representative nor the Affiliated Artist is barred from using the Platform under the laws of the United States, the place of residence of the Artist Representative or any Affiliated Artist, or any other applicable jurisdiction; and (3) Artist Representative is responsible for complying with all applicable laws and regulations relating to Affiliated Artist’s participation in the features of the Platform under this Agreement and will fully indemnify Virtuosica for any failure to do so.
vi. We may use a combination of automated systems and a team of moderators to monitor and review the Platform for content or conduct that indicates breach of this Agreement. We reserve the right, at our sole discretion, to terminate or suspend any Account, restrict access to the Platform, or make use of any operational, technological, legal, or other means available to enforce this Agreement (including without limitation blocking specific IP addresses), at any time without liability and without the need to give you prior notice.
vii. Without limiting the foregoing in any way, we expressly reserve the right to terminate or suspend any Account without notice for (1) violating these terms, (2) if we determine that your conduct on the Platform was inappropriate or improper, (3) if we, or our affiliates, determine that your conduct on other platforms or services operated by our affiliates was inappropriate or improper, or (4) for any reasons whatsoever that we deem, in our sole discretion, justifies termination. If your Account is terminated or suspended, you agree you will not receive a refund for any paid services or features for which you have already been charged, or a payout for Performance Services rendered.
b. User Conduct and Responsibilities
i. While using the Platform, you agree that you will:
- Comply with this Agreement and check this page occasionally to ensure you are aware of any changes to our policies;
- Comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, anti-spam laws, and regulatory requirements;
- Use the latest versions of the Platform;
- Treat other users in a courteous and respectful manner and abide by our community guidelines;
- Be respectful when communicating with any of our customer service representatives or other employees;
- Maintain a strong password and take reasonable measures to protect the security of your login credentials.
ii. Subject to this Agreement and any other Virtuosica policies, you may share political opinions; participate in political activity; provide links to a political committee’s official website, including the contribution page of a political committee; and solicit viewers to make contributions directly to a political committee. You agree, however, that these activities are entirely your own. Moreover, by engaging in these activities, you represent and warrant that you are eligible to engage in them under applicable law, and that you will abide by all relevant laws and regulations while doing so.
iii. Viewing User Content and Events or Performance Services
- At this time, Events and Performance Services are not available for download or offline viewing.
- The quality of the display of the content on the Platform may vary from device to device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your Internet connection. Not all Content is available in all formats, such as HD, Ultra HD and HDR.
- Users are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges. The time it takes to view or access User Content, Events, or Performance Services on your device will vary based on a number of factors, including your location, available bandwidth at the time, the Content you have selected, and the configuration of your device.
- Users may not record—audio, video, or both—or broadcast any Events or Performance Services, in whole or in part. By participating in an Event or Performance Services, you acknowledge and agree that Virtuosica may record, film, live stream, photograph, or otherwise capture any portion of the Event or Performance Services, including your voice and/or image, in any media. Virtuosica may edit such media, use such media alone or together with other materials, or authorize others to use such media for marketing and promotional purposes and for any other lawful purpose in the ordinary course of its business.
c. Prohibited Conduct
While using the Platform, you agree that you will not:
- Misrepresent your identity, age, current or previous employment positions, professional qualifications, or affiliations with a person or entity;
- Use the Platform in such a way that damages the Platform or prevents their use by other users;
- Use the Platform in such a way that interferes with, disrupts, or negatively affects any platforms, servers, or networks related to the Platform;
- Use the Platform for any harmful, illegal, or nefarious purpose;
- Harass, bully, stalk, intimidate, assault, defame, harm, or otherwise mistreat any person;
- Post or share Prohibited Content (as defined below);
- Solicit passwords for any reason or purpose, solicit personal identifying information from other users for commercial or unlawful purposes, or disseminate another person’s personal information without his or her permission;
- Use any Account belonging to another User;
- Use the Platform in connection with any fraudulent conduct, pyramid scheme, or other similar practices;
- Violate the terms of the license granted to you by Virtuosica (as outlined in Section 5 of this Agreement);
- Disclose private or proprietary information that you are not authorized to disclose;
- Copy, modify, transmit, distribute, or create any derivative works from any of the following, without Virtuosica’s prior written consent or except as otherwise permitted by the functions or features of the Platform or Virtuosica’s Music Guidelines:
- User Content
- Virtuosica Content
- Any other copyrighted material, images, trademarks, trade names, service marks, or other intellectual property, content or proprietary information accessible through the Platform
- Express or imply that any statements you make are endorsed by Virtuosica;
- Use any robot, crawler, site search/retrieval application, proxy, or other manual or automatic device, method, or process to access, retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Platform or its contents;
- Upload viruses or other malicious code or otherwise compromise the security of the Platform;
- Forge headers or otherwise manipulate identifiers to disguise the origin of any information transmitted to or through the Platform;
- “Frame” or “mirror” any part of the Platform without our prior written authorization;
- Use meta tags or code or other devices containing any reference to Virtuosica or the Platform (or any of our trademarks, trade names, service marks, logos, or slogans) to direct any person to any other website for any purpose;
- Modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile, or otherwise disassemble any portion of the Platform, or cause others to do so;
- Use or develop any third-party applications that interact with the Platform, User Content, or any user’s information without our written consent;
- Use, access, or publish the Platform’s programming interface without our written consent;
- Probe, scan, or test the vulnerability of the Platform or any system or network; or
- Encourage, promote, or agree to engage in any activity that violates the terms of this Agreement.
d. Reporting Misconduct
You can report any abuse or complain about any User’s conduct or content by contacting us through appropriate, designated channels with a description of the abuse or an outline of your complaint. We reserve the right to investigate any possible violations of this Agreement, and we may, in our sole discretion, immediately terminate any user’s right to use or access the Platform, without prior notice, as set out further in this Agreement.
While using the Platform, you may have access to: (a) content that you upload or provide while using the Platform (“Your Content”), (b) content that other Users upload or provide while using the Platform (“User Content”), and (c) content that Virtuosica provides on and through the Platform (“Virtuosica Content”). As used in this Agreement, “content” includes, without limitation, all text, images, video, audio, or other material on the Platform, including information on users’ profiles and in direct messages between users.
a. Your Content
i. Your Content must comply with Virtuosica’s content guidelines. By using the Platform, you acknowledge that you are solely responsible and liable for Your Content and you agree to indemnify, defend, release, and hold Virtuosica harmless from any claims made in connection with Your Content.
ii. When you create an Account, we may collect information you have made publicly available through any external accounts, or that you have otherwise authorized your external accounts to share with third-party platforms like ours. You represent and warrant that the information you provide to Virtuosica is accurate, including any information submitted through external accounts (if applicable), and that you will update your Account information as necessary to ensure its accuracy.
iii. The content included on your individual profile should be relevant to the intended purpose of the Platform. You may not display any contact information, banking information, or other sensitive information—whether in relation to you or any other person (i.e., home or work addresses, telephone numbers, email addresses, credit/debit card or other banking details, driver's license or passport details, social security information, health insurance information). If you choose to reveal any personal information about yourself to other Users, you do so at your own risk. We encourage you to exercise caution in disclosing any personal information online.
iv. By using the Platform, you acknowledge that any Content that you submit to public areas of the Platform may be visible to other Users and may be viewed by other Users and any person visiting or using the Platform or possessing a link to the Platform (e.g. individuals who receive a link to a User’s profile or shared content from other Users). You further acknowledge that other Users may share some or all of Your Content with third parties and your use of the Platform constitutes your consent to any such sharing or distribution of Your Content, subject to the terms of this Agreement.
v. By uploading Your Content on the Platform, you represent and warrant that you have all necessary rights and licenses to do so (except for public performance rights in those musical compositions that are licensed to Virtuosica by Broadcast Music, Inc., The American Society of Composers, Authors and Publishers or SESAC, Inc. (the “PROs”) for use during Events and in connection with Performance Services), and automatically grant Virtuosica a non-exclusive, royalty free, perpetual, worldwide license to use Your Content (including, without limitation, editing, copying, modifying, adapting, translating, reformatting, creating derivative works from, incorporating into other works, advertising, distributing, and otherwise making available to the general public such content, whether in whole or in part and in any format or medium currently known or developed in the future) on or in connection with the Platform for the purposes of providing access to the Platform for Users, for monitoring or improving the Platform, for advertising or promoting the Platform or any Users thereof, or for other legitimate business purposes. We may assign or sub-license the above license to our affiliates and successors without any further approval by you. We do not have any obligation to store Your Content. Our license to Your Content is subject to your rights under applicable law and is for the limited purpose of operating, developing, providing, and improving the Platform, or researching and developing new services or platforms.
vi. Subject to proper reporting by Users, Virtuosica will facilitate payment of all royalties associated with the public performance, via the Platform, of those musical compositions licensed by the PROs. For the purpose of clarity, Virtuosica is only responsible for licensing, reporting, and payment of royalties in connection with public performances carried out through the platform.
vii. You understand and agree that we may monitor or review Your Content, and we have the right to remove, delete, edit, limit, or block or prevent access to any of Your Content at any time, at our sole discretion. Furthermore, you understand and agree that we have no obligation to display or review Your Content.
viii. You agree that Your Content will comply with the FTC’s Guidelines Concerning the Use of Testimonials and Endorsements in Advertising, the FTC’s Disclosures Guide, the FTC’s Native Advertising Guidelines, and any other guidelines issued by the FTC from time to time (the “FTC Guidelines”), as well as any other advertising guidelines required under applicable law. For example, if you have been paid or provided with free products in exchange for discussing or promoting a product or service through the Platform (i.e., at an Event), or if you are an employee of a company and you decide to discuss or promote that company’s products or services through the Platform, you agree to comply with the FTC Guidelines’ requirements for disclosing such relationships. You, and not Virtuosica, are solely responsible for any endorsements or testimonials you make regarding any product or service through the Platform.
ix. You agree that Virtuosica may access, preserve, and disclose your account information, including Your Content, if required to do so by law or upon a good faith belief that such access, preservation, or disclosure is reasonably necessary to:
- comply with legal process;
- enforce the terms of this Agreement;
- respond to claims that any content violates the rights of third parties;
- respond to your requests for customer service; or
- protect the rights, property, or safety of Virtuosica or any other person.
b. User Content
A. Other Users will also share content on the Platform. User Content belongs to the user that posted the content and is stored on our servers and displayed through the Platform at the direction of that user.
B. Except as contemplated in this Agreement, you do not have any rights to User Content and you may only use other users’ personal information to the extent that such use of the information is consistent with Virtuosica’s purpose and guidelines.
C. You may not, under any circumstances, use other users’ information for commercial or unlawful purposes, such as to spam, harass, stalk, or make unlawful threats. Should we become aware that you have misused another User’s information, we reserve the right to terminate your Account and restrict your access to the Platform.
D. User Content is subject to the terms and conditions of Sections 512(c) and 512(d) of the Digital Millennium Copyright Act 1998. If you have a question or complaint about User Content, please see Section 4(e) of this Agreement and our DMCA and Infringing Content Policy for more information.
ii. Artist Content
A. “Artist Content” refers to all proceeds of Performance Services, including any materials, rights of publicity, performances, participation (including any chat, comment, statement, audio, images, and any other photo, video, element, or other communication), or other content that Artists provide in connection with Performance Services or upload or publish on the Platform.
B. Artist Content may not:
- violate, infringe, or misappropriate the intellectual property, privacy, publicity, moral or “droit moral,” or other legal rights of any third party; or
- communicate anything that is, or that incites, promotes, facilitates, or encourages action that is, explicitly or implicitly: offensive, dangerous, gratuitously violent, defamatory, illegal (including illegal gambling, games of chance, sweepstakes, or contests), a violation of law or the rights of any third party, abusive, harassing, threatening, hateful, racist, derogatory, harmful to any reputation, pornographic, indecent, profane, obscene, or otherwise objectionable (including nudity).
C. Unless specifically permitted by the terms of a Performance Contract, Users may not record, store, perform, republish, rebroadcast, re-air, or display Artist Content.
D. To the extent that Artists offer Performance Services that include music, the following terms apply:
- Except for the public performance licenses acquired by Virtuosica, Artists will be responsible for securing all other necessary rights, authorizations, and permissions, including the right to reproduce, publicly perform, and communicate to the public any and all sound recordings and musical works embodied in the Artist Content, royalty-free, without the obligation to pay royalties to any third party, including the owner of copyright in a sound recording (e.g., a record label) or a musical work (e.g., a music publisher), a performing rights organization (“PRO”) (e.g., ASCAP, BMI, SESAC), a sound recording PRO (e.g., SoundExchange), all applicable unions or guilds, engineers, producers, or any other parties with ownership interest in the Artist Content.
- If an Artist is a composer or author of a musical work and is affiliated with a PRO, the Artist will notify the PRO of any licenses granted under this Agreement or a Performance Contract and the Artist is solely responsible for complying with the PRO's reporting and other obligations. Note: Virtuosica pays royalties to the PROs (as defined herein) when Artists use the Platform to publicly perform compositions from the PROs’ affiliated artists. It is an Artist’s obligation to determine PRO affiliation for compositions to be performed during an Event or when providing Performance Services. For a list of artists associated with ASCAP, BMI, and SESAC, please contact the PROs directly.
- Under the terms of this Agreement, Artist Content is licensed and distributed on a “through-to-the-audience” basis, meaning the owners or operators of any video conferencing or other software designated by Virtuosica for providing or participating in Performance Services will not be separately liable to an Artist or any other third party for Artist Content.
E If—and only if—the terms of a Performance Contract expressly allow Artist Content to be recorded, stored, republished, rebroadcast, re-aired, or otherwise publicly displayed, Artists grant, to the applicable User, all right, title, and interest in the recorded or stored Artist Content (“Recorded Content”). In such a case, Recorded Content will be considered a “work made for hire” under 17 U.S.C. Section 101, et. Seq.
F. To the extent that the Recorded Content contains any Artist Content which may be subject to rights that are not effectively assignable, or the free and unrestricted use of any Recorded Content is subject to rights that are not effectively assignable, Artists further grant, the applicable User, a fully-paid, unlimited, universal, sublicensable, perpetual, and irrevocable license—in any and all manner and media, whether now known or hereinafter invented or devised—to:
- Make, use, sell, sublicense, execute, reproduce, distribute, and modify the Recorded Content;
- Create derivatives of the Recorded Content;
- Publicly display and perform the Recorded Content;
- Make, have made, use, sell, import, and export products and services that include the Recorded Content;
- Otherwise commercially exploit the Recorded Content; and
- Use, publish, reproduce, and display the Artist’s name, image, voice, appearance, performance, likeness, and Artist Content, including in or in connection with advertising, marketing, promoting, republishing, rebroadcasting, and re-airing.
The Artists grant this same license to any platform or media on which the Recorded Content or Artist Content is stored, performed, recorded, republished, rebroadcast, re-aired, or displayed, and grants any rights necessary or required by such platform or media in order to store, perform, record, republish, rebroadcast, re-air, or display the Recorded Content or Artist Content.
G. Unless permitted by the terms of a Performance Contract, Users may not sell, resell, commercialize, or encumber any granted or licensed rights in Artist Content, including creating a non-fungible token (“NFT”) from Artist Content. Users may only sublicense their rights in Artist Content to the extent necessary for Users to use the Artist Content as agreed upon by the parties to a Performance Contract and in accordance with the terms of this Agreement.
H. Virtuosica may record Events or Performance Services and retain Artist Content. Artist Content or Recorded Content may be edited or modified (for example, add music or captions, capture screenshot or excerpts, or otherwise) and may be included in a compilation with content from or featuring other Events, Artist Content, or Recorded Content, as permitted by applicable law and licenses. Artists grant, to Virtuosica, an unlimited license to modify and use Artist Content for promotional purposes, including stills from Events or Performance Services, behind-the-scenes footage, marketing materials, and trailers or snippets.
1. Artists hereby grant, to Virtuosica, an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions) on a through-to-the-audience basis, create derivative works from, and otherwise use and exploit all Artist Content that they post, publish, transmit, or upload to or through the Platform or to Virtuosica via email, through any media and formats now known or hereafter developed, for the purposes of:
- Advertising, marketing, and promoting (including through the public performance, public display, making available, and communicating to the public) Artists, Events, Performance Services, Virtuosica, and the Platform, at Virtuosica’s sole discretion
- Distributing Artist Content, and information about Artists and Artist Content with the public, in accordance with Artists’ Account settings that you selected when setting up your account
- Sharing information about Artist Content with other Users or other third parties for any purposes related to the functions and features of the Platform
- Providing biographical information about Artists in connection with Artists’ involvement with Events or Performance Services
- Transmitting or distributing Artist Content to service-providers (i.e., data storage or cloud computing service providers) for the purpose of reproducing, hosting, storing, and managing Artist Content.
- Each Artist further grants, to Virtuosica, a royalty-free license to use their name, image, voice, likeness, and any photographs or artwork (e.g., album cover artwork) made available by or on behalf of an Artist through the Platform, in conjunction with advertising, marketing, or promoting Artists, Events, Performance Services, Virtuosica, and the Platform.
- For the avoidance of doubt, the rights granted in Paragraphs 1 and 2 above include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), publicly perform sound recordings and music videos (and the musical works embodied therein), and publicly display any lyrics uploaded by Artists to the Platform, all on a royalty-free basis.
- This means that Artists are granting, to Virtuosica, the right to use their Artist Content without the obligation to pay any royalties or other fees to any sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), PROs (in the United States or otherwise), a sound recording performing rights organization (e.g., SoundExchange, Inc.), any unions or guilds (e.g., the American Federation of Television and Radio Artists (“AFTRA”) or American Federation of Musicians (“AFM”)), and engineers, producers or other participants involved in the creation of Artist Content.
- If Artists have assigned their rights or owe payments to any such entities, then Artists must obtain the consent of such entities to grant the license set forth in this Agreement, or request that such entity agree to be bound by the terms of this Agreement.
- Virtuosica reserves the right to demand confirmation, in writing, from Artists regarding all authorizations, licenses, permissions, and consents obtained by Artist (if any) with respect to any third-party materials embodied in Artist Content. If Artists fail to provide Virtuosica with such confirmation upon request, Virtuosica reserves the right to remove or deny access to any or all of that Artist’s Content that is available on or through the Platform and to suspend or terminate that Artist’s Account. Virtuosica will have no liability to Artists for any actions taken by in accordance with the foregoing.
c. Virtuosica Content
i. All other intellectual property on the Platform (collectively, “Virtuosica Content”) is owned, controlled, and licensed by Virtuosica, absolutely and in its entirety. Virtuosica Content includes, without limitation, text, content, graphics, user interfaces, sounds, artwork, software, databases, logo designs (whether registered or unregistered), trademarks (whether registered or unregistered), and other similar protectible assets, as well as Recorded Content (as defined herein). All right, title, and interest in and to Virtuosica Content remains with Virtuosica at all times, together with the right to apply for protection of the same. All other trademarks, logos, service marks, company, or product names set forth in or appearing on the Platform are the property of their respective owners.
ii. We grant you a non-exclusive, limited, personal, non-transferable, revocable, license to access and use Virtuosica Content, subject to the following conditions and limitations:
- You may not use, sell, modify, or distribute Virtuosica Content, except as permitted by the functionality of the Platform.
- You may not use our name, trademarks, logos, or other insignia in metatags, keywords, or hidden text.
- You may not create derivative works from, or otherwise commercially exploit, Virtuosica Content, in whole or in part, in any way.
- You must use Virtuosica Content for lawful purposes only.
- You may not sub-license your right to use or access Virtuosica Content.
iii. The Platform is licensed, not sold, to you for use according to the terms of this Agreement. Subject to your complete and ongoing compliance with the terms of this Agreement, Virtuosica hereby grants you a personal, limited, revocable, non-transferable license to access and use the Platform solely for your own personal, non-commercial use, as further discussed in Section 5 of this Agreement.
iv. Virtuosica reserves all other rights not expressly granted in this Agreement.
d. Prohibited Content
i. You may not upload or share Prohibited Content. “Prohibited Content” includes, without limitation, content that:
- contains language or imagery that could be deemed offensive, hateful, threatening, derogatory, racist, harassing, harmful to any reputation, or otherwise objectionable (e.g., language that could be deemed discriminatory towards an individual’s race, color, ethnicity, national origin, religion, disability, sexual orientation, gender expression, gender identity, or physical appearance);
- is obscene, pornographic, gratuitously violent, or otherwise may offend human dignity, or contains nudity;
- is abusive, insulting or threatening, discriminatory, or otherwise promotes or encourages racism, sexism, hatred, or bigotry;
- is illegal or encourages or facilitates any illegal activity (e.g., terrorism, inciting racial hatred, or any action that, in itself, constitutes committing a criminal offense);
- is defamatory or libelous or that you know, or have reason to know, is false, misleading, or fraudulent;
- relates to commercial activities, purposes, or arrangements outside of the purposes and intended uses of the Platform (e.g., gambling, games of chance, sweepstakes, contests, competitions, promotion or sales of alcohol, tobacco, or other controlled substances), advertising or promotion of third-party brands or products, solicitation for unrelated or unlawful services, links to other websites, or premium-rate telephone numbers);
- involves transmitting “junk” mail or “spam”;
- contains spyware, adware, viruses, corrupt files, worm programs, or other malicious code designed to interrupt, damage, limit the functionality of, or otherwise disrupt software, hardware, telecommunications, networks, servers, or other equipment, Trojan horses or other material designed to damage, interfere with, wrongly intercept, or expropriate data or personal information, whether from Virtuosica or otherwise;
- infringes the rights of any third party (e.g., intellectual property rights or privacy rights);
- was automatically-generated or otherwise not created by you, unless expressly authorized by Virtuosica;
- includes the image or likeness of another person without that person’s consent (or, in the case of a minor, the minor’s parent or guardian);
- includes the image or likeness of a minor unaccompanied by the minor’s parent or guardian, or is otherwise harmful to minors;
- wrongfully impersonates any other person, including falsely stating your name;
- is inconsistent with the intended purpose and uses of the Platform;
- may harm or damage the reputation of Virtuosica, its affiliates or partners, or other Users.
ii. Virtuosica has a zero-tolerance policy with respect to Prohibited Content. Uploading or sharing Prohibited Content may result in the immediate suspension or termination of your Account or your access to the Platform.
e. Infringing Content
i. If you believe, in good faith, that any content or materials on the Platform infringe upon your intellectual property rights, please view our DMCA and Infringing Content Policy for information regarding how to make a complaint.
ii. So that we are able to prevent unauthorized use of Your Content outside of the Platform, you authorize Virtuosica to act on your behalf with respect to infringing uses of Your Content, particularly to the extent that the content has been taken from the Platform by other users or third parties. This expressly includes the authority, but not the obligation, to send notices on your behalf, pursuant to 17 USC § 512(c)(3), if Your Content is taken and used by third parties outside of the Platform (i.e., DMCA Takedown Notices). Virtuosica is not obligated to take any action with regard to use of Your Content by other users or third parties. Our license to Your Content is subject to your rights under applicable law (e.g., laws regarding personal data protection, to the extent the content contains personal information as defined by such laws).
a. Subject to your complete and ongoing compliance with this Agreement, Virtuosica grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to use a copy of the Platform on a desktop computer or mobile device that you own or control and to run such copy of the Platform solely to access the Platform for your own personal, non-commercial purposes. This license does not allow you to use the Platform on any device that you do not own or control. The terms of the license will govern any upgrades provided by Virtuosica that replace or supplement any aspect of the Platform, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
b. Certain software code incorporated into or distributed with the Platform may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the Sun Public License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed under this Agreement and instead is separately licensed pursuant to the terms and conditions of the respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
c. We reserve the right to stop offering or supporting the Platform (or any particular portion or part thereof) or restrict access to the Platform at any time, at which point your license to use or access the Platform, or any part thereof, will be automatically terminated. In such event, we will not be required to provide refunds, benefits, or other compensation to users in connection with such discontinued access to the Platform.
d. In consideration for Virtuosica’s permission to use or access the Platform, you agree that we, as well as any of our affiliates or third-party partners, may place advertising on the Platform.
a. By accessing or using the Platform through a mobile device, you acknowledge that such use of the Platform is subject to the terms and conditions of using the mobile device and any underlying software, as set by the provider of the device or software (i.e., Apple/iOS App Store or Google Play). It is your sole responsibility to review the terms and conditions that apply to any relevant mobile devices before using the Platform thereon.
b. You understand that the Platform is evolving and, as a result, you may be required to accept updates to the Platform or other software that you have installed on your mobile device. You acknowledge and agree that Virtuosica may update the Platform, with or without notifying you. You may need to update third-party software from time to time in order to access or use the Platform.
c. We may ask for your permission to collect certain usage data from your device. By granting this permission, you agree that we may collect and use technical data and related information, including, but not limited to, UDID, device location, and other technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Platform, and to anonymously track and report your activity inside of the Platform, including for analytics purposes.
d. In consideration for Virtuosica’s permission to use or access the Platform, you agree that we, as well as any of our affiliates or third-party partners, may place advertising on the Platform. Additionally, by submitting suggestions or feedback to us regarding the Platform, you agree that we may use and share such feedback for any purpose without compensating you.
e. We may provide you with emails, text messages, push notifications, alerts and other messages related to the Platform, such as enhancements, offers, products, events, and other promotions. When accessing the Platform, you may be asked to accept or deny push notifications or alerts. If you deny, you will not receive any push notifications or alerts. If you accept, push notifications/alerts will be automatically sent to you. If you no longer wish to receive push notifications/alerts from Virtuosica or the Platform, you may opt out by changing your notification settings on your mobile device. With respect to other types of messaging or communications, such as emails or text messages, you can unsubscribe or opt out by either following the specific instructions included in such communications, or by emailing your request to firstname.lastname@example.org.
a. Fees; Payment
i. Suggested fees or rates for Performance Services will be listed on the Artist’s profile on the Platform, however, Artists and Clients are ultimately responsible for negotiating and determining the fees applicable to Performance Services (within any parameters provided by Virtuosica). Clients agree to pay all amounts due in accordance with the relevant Performance Contract and with Virtuosica’s payment terms in effect when booking Performance Services, including any applicable service, transaction, or processing fees.
ii. All transactions are in U.S. dollars (“USD”) unless otherwise specified at the point of payment.
iii. Fees for Performance Services will be paid and processed through the applicable third-party payment processors (i.e., Stripe). Clients must provide any third-party processors with valid payment information. You acknowledge and agree that Virtuosica does not operate, own, or control any third-party payment processors. Use of payment information is governed by Users’ agreements with, and the privacy policies of, the payment processors, not this Agreement. Users agree to immediately notify payment processors of any change to billing details or other information for payment card(s).
b. Artist Payouts
i. In order to receive payouts from transactions with Clients, Artists must register for an account through the applicable third-party payment processor. Virtuosica currently uses Stripe to process all payments and payouts through the Platform, however, Virtuosica reserves the right to change payment processors at any time. Virtuosica will provide notice to all Users prior to implementing such a change. Artists’ use of Stripe is subject to Stripe’s Terms of Service, as they may be modified from time to time. Please note that if an Artist is not approved by Stripe to obtain a Stripe account, that Artist will not be able to receive payouts through the Platform.
ii. When using Stripe to facilitate transactions through the Platform, payouts from transactions with Clients will initially be deposited into an Artist’s Stripe account, and Virtuosica acts as the custodian of such funds before such funds are disbursed into an Artist’s Account. Virtuosica reserves the right to establish limits on the total amount of any given transaction or cumulative transactions within a specified time period. Virtuosica may also, in its discretion, impose a reserve requirement on an Artist’s Account. The service fees that Artists pay to Virtuosica in connection with transactions include the fees charged by Stripe for such transactions. Virtuosica will retain the service fee charged to Users as described herein, and Virtuosica will use the service fee to pay any Stripe fees associated with transactions between Artists and Clients.
iii. Artists hereby appoint Virtuosica as their agent with respect to facilitating the receipt of payments from Clients, through Stripe, and the disbursement of those payments to Artists’ Accounts. Artists agree to treat a payment from Clients to Virtuosica on their behalf in the same manner as if it were paid directly to Artists, and Artists will perform all Performance Services for which a Client has paid regardless of whether the Artist has received the applicable funds from Virtuosica.
c. Refunds for Events or Performance Services
i. Clients are responsible for reading and understanding all relevant terms and conditions before making a commitment to book Performance Services. When booking Performance Services, Clients are entering into a binding contract with the Artists to book Artists for an Event.
ii. Once an Event has been confirmed and scheduled by both Client and Artist, Clients may cancel and receive refunds for scheduled Events, as follows:
- If an Event is canceled two weeks (14 days) or more in advance of the scheduled Event, a refund will be issued to the Client, via Stripe, for the total amount of fees paid for the Event minus a penalty booking fee of $50 and any associated Stripe fees (e.g. payment processing fee and refund fee). The penalty booking fee will be distributed accordingly between Virtuosica and the applicable Artist.
- If an Event is canceled between seven (7) and thirteen (13) days in advance of the scheduled Event, a 50% refund will be issued to the Client, minus any associated Stripe fees. The non-refundable amount of fees paid for the Event, minus any associated Stripe fees, will be distributed accordingly between Virtuosica and the applicable Artist.
- If an Event is canceled between three (3) days and six (6) days in advance of the scheduled Event, a 25% refund will be issued to the Client, minus any associated Stripe fees. The non-refundable amount of fees paid for the Event, minus any associated Stripe fees, will be distributed accordingly between Virtuosica and the applicable Artist.
- Clients will not be entitled to a refund for cancellations that occur within the 72 hours preceding the scheduled Event. The full, non-refundable amount of fees paid for the Event, minus any associated Stripe fees, will be distributed accordingly between Virtuosica and the applicable Artist.
iii. Clients agree that they will not make unjustified requests for a refund from any Artist, payment processor, or payment card provider in relation to any transaction between Clients and Artists. If Virtuosica determines that a Client’s request for a refund or chargeback request was made in bad faith, Virtuosica reserves the right to suspend or delete that Client’s Account.
i. Users will not be entitled to a refund for any subscription-based offerings on the Platform (“Subscriptions”). Subscriptions are recurring, on a quarterly or monthly basis, with billing cycles automated by Stripe.
ii. Users may cancel Subscriptions, as well as payments in connection with Subscriptions, at any time. Terminating a Subscription take effect in the subsequent (not current) term for that Subscription. Once a Subscription has been cancelled, the cancelling User’s access to the Subscription and associated features will terminate at the end of the term or cycle during which the cancellation was initiated.
iii. State-Specific Subscription Terms
A. For Users residing in New York: Upon notice in writing and delivered to Virtuosica, Users may place any Subscriptions on hold for up to one year.
B. For Users residing in North Carolina: You may review the North Carolina Buyer’s Rights here.
C. For Users residing in California:
- You may cancel any Subscriptions, without penalty or obligation, at any time prior to midnight of the third business day following the date on which you subscribed. If you subscribed using an external service, you must cancel through your external service.
- If you subscribed through your Apple ID, refunds are handled by Apple/Google, not Virtuosica. You can request a refund from Apple through your Apple ID account on your phone or at https://getsupport.apple.com.
- All other Users may request a refund by contacting Virtuosica’s customer service department at email@example.com, or by mailing or delivering a signed and dated notice stating that you (the User) are canceling this Agreement, or words of similar effect. Please also include your name and the email address, phone number, or other unique identifier that you may have used to create your Account. This notice should be sent to: Virtuosica, ATTN: Subscription Cancellations, 4344 Promenade Way 208, Marina Del Rey, CA 90292.
- In accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at Consumer Information Division, 1625 North Market Blvd., Suite N112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
D. For Users residing in Arizona, California, Connecticut, Illinois, Iowa, Minnesota, New York, North Carolina, Ohio, Rhode Island, and Wisconsin:
- You may cancel any Subscriptions, without penalty or obligation, at any time prior to midnight of the third business day following the date on which you purchased the Subscription.
- In the event that you die before the end of your Subscription period, your estate may be entitled to a refund of that portion of any payment you had made for your Subscription that may be allocated to the period after your death.
- In the event that you become disabled (such that you are unable to use the Platform) before the end of your Subscription period, you will be entitled to a refund of that portion of any payment you had made for your Subscription that may be allocated to the period after your disability by providing Virtuosica with notice in the manner described herein.
i. Artists acknowledge and agree that Artists are solely responsible:
- for all tax liability associated with payments received from Performance Services or Events and through Virtuosica, and that Virtuosica will not withhold any taxes from payments to Artists;
- to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Artists are not covered by or eligible for any insurance from Virtuosica;
- for determining whether Artists are required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to fees for Performance Services and remitting any such taxes or charges to the appropriate authorities, as appropriate; and
- if outside of the United States, for determining if Virtuosica is required by applicable law to withhold any amount of fees from Performance Services, notifying Virtuosica of any such requirement, and indemnifying Virtuosica for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest).
ii. In the event of an audit of Virtuosica, Artists agree to promptly cooperate with Virtuosica and provide copies of tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Artists are engaging in an independent business as represented to Virtuosica.
a. Third-Party Software, Systems, and App Stores
i. The following additional terms and conditions apply if your use or access of the Platform involves a third-party platform, system, app store, or other software product (“Third-Party Software”). To the extent that the other terms of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this section, the more restrictive or conflicting terms and conditions in this section will apply, but solely with respect to the Platform and the Third-Party Software. You acknowledge and agree that:
- This Agreement is concluded solely between you and Virtuosica, not with the providers of any Third-Party Software, and Virtuosica (not the Third-Party Software providers) is solely responsible for the Platform and the content thereof. To the extent that this Agreement provides usage rules for the Platform that are less restrictive or in conflict with the applicable terms of service of the Third-Party Software through which you access the Platform, the more restrictive or conflicting terms of the Third-Party Software will take precedence and will apply.
- The Third-Party Software provider has no obligation whatsoever to provide any maintenance and support services with respect to the Platform. Virtuosica is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. The Third-Party Software provider will have no warranty obligation whatsoever with respect to the Platform, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be our sole responsibility.
- Virtuosica, not the Third-Party Software provider, is responsible for addressing any claims that you or any third party may have relating to the Platform, or your access or use of the Platform, including, but not limited to: (1) product liability claims; (2) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; (3) claims arising under consumer protection or similar legislation; or (4) intellectual property infringement claims.
- The Third-Party Software provider and its subsidiaries are third-party beneficiaries of this Agreement, and, upon your acceptance of this Agreement, the Third-Party Software provider through whom you accessed the Platform will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
ii. In the event of a conflict between the applicable terms and conditions for a Third-Party Software or mobile carrier and this Agreement, the terms and conditions of the Third-Party Software or mobile carrier will govern and control. We are not responsible, and have no liability whatsoever, for third-party products or services you obtain through a Third-Party Software or mobile carrier. We encourage you to conduct whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties.
b. Third-Party Links and Services
i. If you use a service, feature, or functionality that is operated by a third party and made available through the Platform (including services we jointly offer with the third party), each party’s terms will govern the respective party’s relationship with you. Virtuosica is not responsible or liable for a third party’s terms or actions taken under the third party’s terms.
ii. Certain features of the Platform may require access to and use of your device’s map features or functionality, such as Google Maps or other External Services. Any use of those features will be subject to the terms and conditions applicable to such External Services. By using the Platform, you may also be required to agree to the end-user terms for any such third-party services. It is your sole responsibility to review the terms and conditions that apply to the third-party services before using those services in conjunction with the Platform. This Agreement does not apply to any activities conducted via third-party services.
iv. Additionally, your dealings with or participation in promotions of advertisers found on the Platform, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that we will not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
v. If you are a California resident, you hereby waive California Civil Code Section 1542 (and any other similar applicable state statute), which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her would have materially affected his or her settlement with the debtor or released party.”
c. External Service Purchases
i. When making a purchase on the Platform, you may have the option to pay through an external service and your external service account will be charged for the purchase in accordance with the terms disclosed to you at the time of purchase and the general terms applicable to your external service account. Some external services may charge you sales tax, depending on where you live, which may change from time to time.
ii. If you initiate a chargeback or otherwise reverse a payment made with your external service account, we may terminate your Account immediately, at our sole discretion. We will retain all funds charged to your external service account until you cancel your subscription through your external service account. Certain Users may be entitled to request a refund.
a. You can delete your Account at any time by logging into your Account on the Platform and following the instructions to terminate your Account. However, you will need to cancel or manage any external service purchases through your external service account (e.g., iTunes, Google Play) to avoid additional billing.
b. Users are responsible for payment of any outstanding balances and collection of any payouts prior to deleting their Account. Artists may collect any remaining payouts within ninety (90) days following termination of their Account. If payouts are not collected within ninety (90) days, Virtuosica may retain the funds.
c. We reserve the right to investigate and, if appropriate, suspend or terminate your account without a refund or payout if you have violated this Agreement, misused the Platform, or behaved in a way that we deem inappropriate or unlawful, on or off the Platform. We reserve the right to make use of any personal, technological, legal, or other means available to enforce this Agreement, at any time without liability and without the obligation to give you prior notice, including, but not limited to, preventing you from accessing the Platform.
a. The following disclaimers are made on behalf of Virtuosica, its officers, employees, directors, shareholders, affiliates, agents, and licensors (collectively, the “Covered Parties”).
b. VIRTUOSICA PROVIDES THE PLATFORM ON AN “AS IS” AND “AS AVAILABLE” BASIS AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM (INCLUDING ALL CONTENT CONTAINED THEREIN), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT REPRESENT OR WARRANT THAT (i) THE PLATFORM WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, (ii) ANY DEFECTS OR ERRORS IN THE PLATFORM WILL BE CORRECTED, OR (iii) THAT ANY CONTENT OR INFORMATION YOU OBTAIN ON OR THROUGH THE PLATFORM WILL BE ACCURATE.
c. VIRTUOSICA TAKES NO RESPONSIBILITY FOR ANY CONTENT THAT YOU, OTHER USERS, OR THIRD PARTIES POST, SEND, OR RECEIVE THROUGH THE PLATFORM, NOR DO WE TAKE ANY RESPONSIBILITY FOR THE IDENTITY, INTENTIONS, LEGITIMACY, OR VERACITY OF ANY USERS WITH WHOM YOU MAY COMMUNICATE THROUGH THE PLATFORM. ANY MATERIAL OBTAINED, VIEWED, OR ACCESSED THROUGH USE OF THE PLATFORM IS ACCESSED AT YOUR OWN DISCRETION AND RISK. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER HARDWARE, COMPUTER SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM (i) ANY SECURITY BREACH, (ii) ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, (iii) COMPUTER LINE OR NETWORK FAILURE, OR (iv) ANY OTHER TECHNICAL OR OTHER MALFUNCTION.
d. You are responsible for the use of your Account and Virtuosica expressly disclaims any liability arising from the unauthorized use of your Account. Should you suspect that any unauthorized party may be using your Account, or you suspect any other breach of security, you agree to notify us immediately.
e. You understand that Virtuosica does not conduct criminal background or identity verification checks on its users or otherwise inquire into the background of users. We make no representations or warranties as to the conduct, identity, intentions, legitimacy, or veracity of users. We reserve the right to conduct—and you authorize us to conduct—any criminal background check or other screenings at any time using available public records and you agree that any information you provide may be used for that purpose. If we decide to conduct any screening through a consumer reporting agency, you hereby authorize us to obtain and use a consumer report about you to determine your eligibility under the terms of this Agreement.
f. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS. ALWAYS USE YOUR BEST JUDGMENT AND TAKE APPROPRIATE PRECAUTIONS. COMMUNICATIONS RECEIVED THROUGH THE PLATFORM, INCLUDING AUTOMATIC NOTIFICATIONS SENT BY VIRTUOSICA, MAY RESULT FROM USERS ENGAGING WITH THE PLATFORM FOR IMPROPER PURPOSES, INCLUDING FRAUD, ABUSE, HARASSMENT, OR OTHER SUCH IMPROPER BEHAVIOR. YOU AGREE TO USE CAUTION IN ALL INTERACTIONS WITH OTHER USERS, PARTICULARLY IF YOU DECIDE TO COMMUNICATE OUTSIDE OF THE PLATFORM OR MEET IN PERSON.
g. USERS ARE NOT COVERED PARTIES WITHIN THE MEANING OF THESE TERMS. WE DO NOT CONTROL OR HAVE THE RIGHT TO CONTROL USERS, EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY APPLICABLE SUPPLEMENTAL TERMS, OR AS REQUIRED BY APPLICABLE STATE OR FEDERAL LAW, REGULATION, OR ORDINANCE.
i. You agree to indemnify and hold harmless the Covered Parties against any and all claims, damages, losses, costs, liabilities, and expenses or fees (including reasonable attorneys’ fees), of any kind, relating to or arising out of: (i) your use of the Platform; (ii) your violation or breach of any provision of this Agreement, any additional or supplemental rules or policies relating to the Platform, or any applicable law or regulation, whether or not referenced herein; (iii) your violation of any rights of any third party; (iv) your use of, or inability to use, the Platform.
ii. Virtuosica reserves the right, at its sole discretion and expense, to assume the exclusive defense of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the us in asserting any available defenses. This provision does not require you to indemnify any of the Covered Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression, or omission.
b. Limitation of Liability
i. YOU UNDERSTAND AND AGREE THAT IN NO EVENT WILL THE COVERED PARTIES BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM OR THIS AGREEMENT, HOWEVER ARISING (INCLUDING NEGLIGENCE), EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ii. IN NO EVENT WILL VIRTUOSICA’S AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS RELATING TO THE PLATFORM EXCEED THE AMOUNT, IF ANY, PAID BY YOU IN CONNECTION WITH THE PLATFORM WHILE YOU HAVE AN ACCOUNT.
iii. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION WILL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL WITH RESPECT TO THEIR ESSENTIAL PURPOSE.
iv. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
v. Virtuosica provides online tools and materials to assist Users with posting, promoting, booking, and participating in Events and Performance Services, and may provide advice, information, or resources related to posting, promoting, booking, and participating in Events and Performance Services, as applicable. However, any information, documents, and other materials available through the Platform, and any advice or resources provided, (collectively, the “Resource Materials") are for informational purposes only. The Resource Materials are not guaranteed to be correct, complete, or up-to-date, and all final decisions about posting, promoting, booking, and participating in Events and Performance Services will be at the discretion of Users. Virtuosica does not review any information that Users’ input or provide for accuracy or sufficiency. You understand that Virtuosica’s provision of the Platform does not constitute any guarantee of a particular outcome with respect to Artists, Events, or Performance Services or otherwise make Virtuosica responsible in any way for the success or failure of any Event or Performance Services or other efforts that Users may undertake in connection with the Platform.
a. YOU AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND VIRTUOSICA ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND VIRTUOSICA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
b. Governing Law
i. This Agreement and any and all claims, disputes, or other legal proceedings by or between you or Virtuosica, including, but not limited to, any such claims or disputes that are in any way related to or arising under this Agreement or your access to or use of the Platform will be governed by the laws of the State of California without giving effect to any conflict-of-laws principles that may otherwise provide for the application of the law of another jurisdiction.
ii. The parties agree that their arrangement under this Agreement is in interstate commerce and that the Federal Arbitration Act applies to the construction of the arbitration provisions below. For any claim, dispute, or other legal proceeding not subject to the arbitration provisions below, the claim or dispute will be brought and litigated exclusively in the state courts located within Los Angeles County, California or the federal courts in the Central District of California, as appropriate, and you agree to submit to the personal jurisdiction of each of these courts for the purpose of litigating such claims or disputes.
c. Agreement to Arbitrate
i. If you reside in the United States, subject to the Exceptions to Arbitration set forth below, you and Virtuosica each agree that any and all disputes between users and Virtuosica arising under or related in any way to this Agreement or such user’s use of the Platform, Virtuosica websites or platforms, or the App must be resolved through binding arbitration as described in this section.
ii. With the exception of the prohibition on class arbitrations set forth in this "Dispute Resolution" section, if an arbitrator or court decides that any part of this Agreement to Arbitrate is unenforceable, the other parts of this Agreement to Arbitrate will still apply.
d. Exceptions to Arbitration
i. This Agreement to Arbitrate will not apply to the following: (1) small claims court cases that qualify; (2) legal proceedings that involve efforts to obtain user-identifying information; (3) any legal proceedings brought against Virtuosica by companies or other legal entities or individuals acting on behalf of such companies or other legal entities; (4) any legal proceedings brought by Virtuosica against companies or other legal entities or individuals acting on behalf of any such companies or other legal entities; and (5) a party's right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
ii. If, for some reason, the prohibition on class arbitrations set forth in this Dispute Resolution section cannot be enforced, then the entirety of this Agreement to Arbitrate will not apply. Where this Agreement to Arbitrate does not apply, the remainder of this Agreement, and the Dispute Resolution section, will continue to apply.
e. Informal Dispute Resolution
i. If either of you or Virtuosica intends to seek arbitration under this Agreement, the party seeking arbitration must first notify the other party of the dispute, in writing, at least 30 days in advance of initiating arbitration.
ii. Notice to Virtuosica should be sent to 4344 Promenade Way 208, Marina Del Rey, CA 90292. If you have an Account, notice to you will be sent to the e-mail address associated with your Account.
iii. The notice of dispute ("Notice") must (1) describe the nature and basis of the claim or dispute and (2) set forth the specific relief sought. If you and Virtuosica do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Virtuosica may commence formal arbitration proceedings.
f. Arbitration Procedure
i. The arbitration will be governed by the Consumer Arbitration Rules of the American Arbitration Association ("AAA"), if applicable, as modified by this section. Any settlement offer made by you or Virtuosica may not be disclosed to the arbitrator. Unless otherwise required by the applicable arbitration rules, the arbitration will be held in Los Angeles, California.
ii. For any claim where the total amount of the award sought is $10,000 or less, you and Virtuosica may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Virtuosica, subject to the arbitrator's discretion to require an in-person hearing. In cases where an in-person hearing is held, you or Virtuosica may attend by telephone, unless the arbitrator requires otherwise.
iii. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different users but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award will be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
g. Opt-Out Procedure
i. IF YOU ARE A NEW VIRTUOSICA USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE ("OPT-OUT") BY MAILING US A WRITTEN OPT-OUT NOTICE ("OPT-OUT NOTICE"). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE VIRTUOSICA TERMS OF SERVICE FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO VIRTUOSICA, INC, RE: OPT-OUT NOTICE, 4344 PROMENADE WAY 208, MARINA DEL REY, CA 90292.
ii. For your convenience, we are providing an Opt-Out Notice form you must complete and mail to opt out of the Agreement to Arbitrate. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street address, city, state and zip code), and the e-mail address(es) associated with the Virtuosica account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective.
iii. This procedure is the only way you can opt out of the Agreement to Arbitrate.
iv. If you opt out of the Agreement to Arbitrate, all other parts of this Agreement and this Dispute Resolution section will continue to apply. Opting out of the Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements between you and Virtuosica.
h. Modification of the Agreement to Arbitrate
i. Notwithstanding any provision of this Agreement to the contrary, you and Virtuosica agree that, if Virtuosica makes any changes to this Dispute Resolution section (other than a change to any referenced notice address or site link) in the future, that change will not apply to any claim that was filed in a legal proceeding prior to the effective date of the change. The change will apply to all other disputes or claims governed by this Agreement that have arisen or may arise between you and Virtuosica.
ii. We will notify you of changes to this Dispute Resolution section by posting the changes on the Virtuosica websites or platforms and the App at least thirty (30) days before the effective date of the changes and also by e-mail. If you do not agree to any modified terms, you may close your account within the thirty (30) days between the notification date and the effective date, and you will not be bound by the changes.
a. Governing Law; Venue
ii. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Virtuosica agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles, California if you are a California citizen or resident, and in the United States District Court for the District in which you reside if you are not a California citizen or resident.
If any clause or provision set forth in this Agreement is determined to be illegal, invalid, or unenforceable under present or future law, the clause or provision will be deemed to be deleted without affecting the enforceability of all remaining clauses or provisions.
No failure or delay in exercising any right, power or privilege under this Agreement will operate as a waiver of such right or acceptance of any variation of the Agreement, and nor will any single or partial exercise by either party of any right, power, or privilege preclude any further exercise of the right or the exercise of any other right, power, or privilege.
This Agreement, together with any amendments, policies, and additional agreements between you and Virtuosica in connection with Platform, will constitute the entire agreement and understanding between you and Virtuosica concerning the Platform. You acknowledge and agree that you have not relied upon any statement, promise, or representation made or given by or on behalf of Virtuosica that is not set out in this Agreement or any document expressly referenced herein.
i. The headings in this Agreement are for convenience only and have no legal or contractual effect.
ii. To the extent allowed by law, the English version of this Agreement is binding, and any translations are provided for convenience only.
iii. All pronouns and any variations thereof will be deemed to refer to the masculine, feminine, neuter, singular, or plural as the identity of the subject entities or persons.
iv. Any word both capitalized and uncapitalized will be deemed to have the same meaning.
f. Relationship of the Parties
This Agreement does not create, and may not be construed to create, any agency, partnership, joint venture, fiduciary, or other special relationship or employment. You do not have the authority to bind or make representations on behalf of Virtuosica in any manner.
g. Assignment; Transfer
You agree that your Account is non-transferable and all of your rights to your Account, and its content, terminate upon your death, unless otherwise provided by law. Any rights and licenses granted hereunder may not be transferred or assigned by you but may be assigned by Virtuosica without restriction.
h. Terms for International Users
The Platform is controlled, operated, and administered by Virtuosica (or its service-providers or licensees) from its offices within the United States, and is not intended to subject Virtuosica to the laws or jurisdiction of any state, country, or territory other than those of the United States. Those who choose to access the Platform do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules, and regulations. Any additional charges such as customs, fees, taxes, and import duties are the responsibility of the User. Without limiting the foregoing, Virtuosica may limit the availability of the Platform, in whole or in part, to any person, geographic area, or jurisdiction, at any time and at Virtuosica’s sole discretion.
i. Notices; Electronic Communications
i. Virtuosica may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via e-mail, written or hard copy, or through conspicuous posting on our websites or platforms, as determined by Virtuosica in its sole discretion. We reserve the right to determine the form and means of providing notifications to users, provided that you may opt out of certain means of notification as described in this Agreement. We are not responsible for any automatic filtering that you or your network provider may apply to e-mail notifications sent to the e-mail address associated with your Account. We recommend that you add firstname.lastname@example.org and email@example.com to your e-mail contacts or address book to help ensure that you receive e-mail notifications from us.
ii. By accessing the Platform or registering for an Account, you consent to receive communications from Virtuosica in electronic form, and agree that all terms and conditions, agreements, notices, disclosures, and other communications provided electronically satisfy any legal requirement that such communications would satisfy if they were in writing. This section does not affect your statutory rights.