last update: 9-11-2020
1.2 Each Party represents that it has validly entered into the Agreement and has the legal power to do so, and represents and warrants to the other Party that: (i) the Agreement constitutes a valid and binding agreement enforceable against such a Party in accordance with its terms,
(ii) no authorization or approval from any corporate body, any third party etc. is required in connection with such Party’s execution or performance of the Agreement, and (iii) the execution and performance of the Agreement does not and will not violate any Party's constituent documents, the terms or conditions of any other agreement, to which it is a party or by which it is otherwise bound and/or the Law. If a person is entering into the Agreement on behalf of a company or any other legal entity, such a person represents that is fully authorized to represent such a company and/or legal entity, in which case the Customer shall be such a company and/or legal entity.
2.1 The capitalized terms used herein shall have the following meaning, unless the context requires otherwise:
"Account" - means any account created by the Customer for the purpose of using the Services;
"Account Information" shall have a meaning given in Clause 7.6;
"Amendments" shall have a meaning given in Clause 11.1;
"Company", "We", "Us" or "Virbe" means Virbe sp. z o.o. with its seat in Lublin, address: ul. Tomasza Zana 11A, 20-601 Lublin, entered into the register of business entities of the National Court Register maintained by the District Court for Lublin-Wschód in Lublin with its seat in Świdnik, VI Commercial Department of the National Court Register under the number KRS 0000780459, NIP: 9462687906, REGON: 383015364, share capital: PLN 6,000;
"Customer" or "You" means any user, person, or entity who creates an account and uses Services supplied by the Company hereunder;
"Customer Content" shall have the meaning given in Clause 4.6;
"DPA" shall have the meaning given in Clause 8.1;
"End-User" means any person with whom the Customer or its Representatives interact with while using Services;
"Extended Subscription Period" shall have a meaning given in Clause 7.1;
"GDPR" shall have a meaning given in Clause 8.2;
"Intellectual Property" means all works within the Act of 4 February 1994 on Copyright and related Rights, patents, rights in inventions, supplementary protection certificates, utility models, rights in designs, trademarks, service marks, trade and business names, logos, get up and trade dress and all associated goodwill, rights to sue for passing off and/or for unfair competition, copyright, moral rights and related rights, rights in computer software, rights in databases, topography rights, domain names, rights in information (including know-how and trade secrets) and the right to use, and protect any confidential information, image rights and rights of publicity and all other similar or equivalent rights subsisting now or in the future in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, and rights to claim priority from, such rights for their full term and the right to sue for damages for past and current infringement in respect of any of the same;
"Law" means all national and supra-national laws and regulations applicable to a given Party;
"Party" or "Parties" means the Company and the Customer, as parties to the Agreement;
"Personal Data" means personal data within the meaning of the GDPR, processed by Virbe (or a sub-processor) on behalf of the Customer pursuant to, or in connection with, the Agreement;
"Representative" means a named user(s) in the Service designated by the Customer to operate Services for or on behalf of the Customer;
"Services" means the services and products supplied by the Company to the Customer under the Agreement, as described in Clause 4 hereof;
"Subscription Period" shall have a meaning given in Clause 7.1;
"Subscription Plan" shall have a meaning given in Clause 4.2;
"Trial Period" shall have a meaning given in Clause 5.1;
"Virbe Content" shall have a meaning given in Clause 4.6(b);
"Virbe Intellectual Property" means any and all Intellectual Property, which: (i) is owned by Virbe or any of its affiliates or which is owned by a third party, but which Virbe has a right to use, (ii) is used in the Services, or is disclosed to the Customer in connection with the Services and does not constitute Customer Content, including in particular images of the characters, models, 3D animations.
3.2 Customer’s access to the Internet is not the subject of the Agreement. The Customer bears sole responsibility for the functionality of its Internet access, including the transmission paths and its own hardware.
4.1 Virbe renders the following Services: Virbe Beings Web Manager available through the following Internet domain: https://virbe.ai, Virbe Beings Live Preview available through the following Internet domains: https://web-plugin.virbe.ai and https://live.virbe.ai, Virbe Beings Web Plugin which can be integrated on the Customer website.
4.2 The Customer chooses a specific subscription plan from those available on the Company's website ("Subscription Plan"). The Customer acknowledges and agrees to the limitations of each of the Subscription Plans (whichever is chosen by the Customer).
4.3 Virbe is exclusively entitled to add, change, remove, and adapt the functionality, the use, subject matter, and the range of particular Services, including the software provided, its contents, and its nature; as well as to cease rendering the Services, in particular, in the event of further development of the Services offered by the Company.
4.4 The Services are exclusively designated for business use and must be used only in accordance with their contractual intended purpose and the Agreement.
4.5 The Customer is solely responsible for the proper protection and storage of their password and login (credentials). The Customer is not permitted to provide access to or otherwise transfer the credentials to any third parties, without prior consent of the Company. The credentials for the Services may not be passed on or used by several persons at the same time. Access to, and use of, the Services is restricted to the specified number of individual Representatives permitted under the Subscription Plan chosen by the Customer. In any case, Virbe shall not be liable for any such unauthorized or improper use or transfer of credentials by/to any third parties.
4.6 The Customer undertakes to use the Services exclusively for its own purpose and in a manner consistent with the Law and the Agreement.
4.7 The Customer confirms that - in providing the Services - Virbe is acting solely as a software provider and all contents, information, data, text, software, graphics, commentary, video, messages, or any other materials submitted by using the Service ("Customer Content") is the property of the Customer. In the view of the above:
(a) Virbe is not responsible for the way the Customer uses the Services;
(b) the websites and all information, content, materials, products (including any software), website addresses, and layouts and services included on or otherwise made available to the Customer by Virbe ("Virbe Content") are provided on a “as is” and “as available” basis, without any warranties of any kind, and to the maximum extent permitted by the Law, the Company is not giving any warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement in connection with the Services;
(c) Virbe does not guarantee the compatibility of the Services with other producers’ software;
(d) the Customer is fully responsible for: (i) Customer's Content, (ii) compliance with the provisions of the Agreement by its Representatives and End-Users, and (iii) for any and all activities that occur on the Account.
4.8 Without limiting the provisions of Clause 4.6 above, the Customer may not:
(a) hinder the functioning of Services, especially in the form of reverse engineering or hacking the Services, attempting to gain unauthorized access to the Services (or any portion thereof), or related systems, networks, or data;
(b) use the Services in a way, which could cause any damages or risks to Virbe, including reputational risks, including e.g. by the way of generating or sending unsolicited communications or communication judged to be spam;
(c) misrepresent or mask the origin of any data, content, or other information submitted by the Customer, including e.g. by the way of "spoofing", "phishing" manipulating headers or other identifiers, impersonating anyone else;
(d) use the Services in a way which violates the rights any persons, in particular the End-Users;
(e) promote or advertise products or services different from the ones belonging to the Customer without legal basis;
(f) sublicense, license, sell, lease, rent, or otherwise make available the Services or provide access to any third party;
(g) copy, translate, disassemble, decompile, reverse engineer, or otherwise modify the Services in whole or in part, or create derivative works based thereon;
(h) endanger, interfere, compromise or circumvent the privacy, use, and/or security of the Services, including, without limitation, submitting data or content that may contain viruses or other harmful components;
(i) breach any duty towards, or the rights of, any person including, without limitation, rights of publicity or privacy, or take actions that can otherwise result in consumer fraud, product liability, tort, breach of contract, injury, or damage or harm of any kind to any person;
(j) allow or encourage anyone else to take any of the actions listed above.
4.9 The Customer has become familiar with the technical requirements necessary to use the Services and has no objections in respect thereof. The Customer is aware of risk and threats connected with electronic data transmission.
4.10 The Customer acknowledges and agrees that the Company does not warrant that the Services will be uninterrupted, timely, secure, error-free, or free from viruses or other malicious software, and no information or advice obtained by the Customer shall create any warranty not expressly stated in the Agreement.
4.11 Virbe is entitled to access Customer accounts for technical and administrative purposes and for security reasons. The information obtained in such a manner shall not be processed or made available to any third parties, unless required by the Customer or under the Law.
4.12 The Customer is responsible for procuring and maintaining the network connections required to connect the Customer's network to the Services, including, but not limited to, browser software that supports protocols used by the Company and to follow the Company’s procedures for accessing Services. Minimum technical requirements to use the Services are provided in Schedule 1 hereto. Virbe will not be responsible for notifying the Customer, its Representatives, or End-Users of any upgrades, fixes, or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including, but not limited to, the Internet) which are not owned, operated, or controlled by the Company. We assume no responsibility for the reliability or performance of any network connections as described in this section.
5.1 The use of offered Services free of charge for the first 30 days ("Trial Period").
5.2 The following provisions shall apply to the Services in the Trial Period:
(a) after signing up, the Customer receive an access to a fully-functional trial account for the Trial Period, free-of-charge;
(b) during a Trial Period, providing credit card details is not required;
(c) The Customer is entitled to use only one virtual being in a Trial Period at any given time.
6.1 "Virbe" is a trade name and is therefore subject to protection under the Law.
6.2 Any and all Virbe Intellectual Property is and shall remain the exclusive property of Virbe (or, where applicable, any third party who has granted the right to use the Virbe Intellectual Property). Nothing in the Agreement is intended to transfer or grant a license to any Virbe Intellectual Property, unless expressly stated herein.
6.3 During the Subscription Period and subject to other provisions of the Agreement, the Company grants a non-exclusive, worldwide licence to Virbe Intellectual Property contained in the Services to use and promote the Services in accordance with the Agreement, without the right to sub-license. The remuneration for the license is included in the fees paid by the Customer to the Company under the relevant Subscription Plan. The license is granted on the fields of exploitation required for proper use of the Services in accordance with the Agreement. For the avoidance of doubt, the Customer shall be entitled to use Virbe Intellectual Property consisting in images of the characters, models, 3D animations in its marketing campaigns on social media.
6.4 All rights, title, and interest in and to the Services and all hardware, software, and other components of, or used to provide, the Services, including all related Virbe Intellectual Property, will remain with Virbe and/or its affiliates and belong exclusively to Virbe and/or its affiliates.
6.5 Prior written consent of Virbe is required for any business and non-business use of offered Services that is beyond the Agreement. Such consent is required, in particular, when disseminating and publicizing particular elements (e.g. photos, films, texts) in other Internet services/websites, printed publications, books, multimedia presentations and in other electronic media, as well as for the disposal or use of its work (adaptations, alterations, modifications), unless allowed by the Law.
7.1 In case the Customer wishes to continue using the Services following the lapse of the Trial Period, the Customer will need to make a payment according to the current price list available on the Company's website. In such a case, the Agreement shall be deemed to be concluded for the period corresponding to the Subscription Plan chosen by the Customer ("Subscription Period"). The term of the Agreement shall automatically renew for additional periods equal to the expiring Subscription Period, unless the Customer closes its Account or either Party terminates the Agreement ("Extended Subscription Period").
7.2 All payments shall be made electronically, using services provided by external payment providers, as available on the Company's website. The Customer acknowledges and agrees that Virbe shall send invoices and payment reminders exclusively by electronic means.
7.3 The Customer acknowledges and accepts that the payments for the Extended Subscription Period may be charged automatically, including in particular by charging the Customer's credit card.
7.4 Lack of timely payment shall be deemed as the voluntary resignation from the Services by the Customer. In such a case, the Company shall be entitled to suspend the Customer's access to the Services with immediate effect and without any prior notification.
7.5 Unless expressly agreed otherwise, all amounts stated in the Agreement or the price list are exclusive of all duties or taxes. The Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, or charges of any kind imposed by federal, state, or local governmental entities on amounts payable by the Customer.
7.6 The Customer is responsible for providing valid and current Account information, including payment and billing information, as well as the contact information ("Account Information"), as well as for updating the Account Information immediately after any changes to the same (for example, a change in the Customer billing address or credit card expiration date).
7.7 Regardless of the billing cycle, the Company provides no refunds, no right of set-off, or credits for unused time of the Services, or plan downgrades if the Customer decides to close, downgrade, or suspend the Agreement before the end of the Customer’s Subscription Period.
8.2 Regardless of the above, the Customer shall comply with the European Union’s General Data Protection Regulation (EU/2016/679) ("GDPR") as well as any other applicable data protection regulations.
8.3 Any observations or breach of data protection may be reported at [email protected].
9.1 The Customer acknowledges and agrees that the Company's liability shall be solely governed by the Agreement. To the fullest extent possible, the Customer and the Company exclude any statutory provisions related to the Company's liability, in particular any statutory warranty.
9.2 The Company's liability hereunder shall be limited as follows:
(a) the Company shall only be liable for damages incurred by the Customer, caused by the Company's intentional actions;
(b) damages shall in any case be limited to the direct damage caused to the Customer and liability for any loss of profits, indirect, incidental, special, consequential or exemplary damages etc. is hereby expressly excluded;
(c) the aggregate liability of the Company shall not exceed the total remuneration paid by the Customer hereunder for the Services in the period of twelve (12) months preceding the first incident out of which the liability arose.
9.3 The Customer shall indemnify, defend, and hold harmless Virbe and/or its affiliates from and against any and all losses, damages, demands, claims, actions, liabilities, fines, penalties, and related expenses (including reasonable legal fees) asserted against or incurred by Virbe that arise out of, or result from, the Customer data and in relation to any and all claims related to the infringement of any patent, copyright, trademark, or trade secret right, or other intellectual property rights, private right, or any other proprietary or personal interest of any third party violated by the Customer data. The Customer data is any and all data inserted by the Customer and/or created in the Virbe’s Services for the term of the Agreement.
9.4 Virbe shall bear no liability in particular for:
(a) any negative consequences being the result of force majeure, including in particular fires, strikes and accidents;
(b) technical conditions beyond the control of Virbe, e.g. the Internet;
(c) any actions of third parties. The hardware, software, and technical infrastructure used by the Customer and/or End-Users can also influence the Services. Any delay or default affecting the availability, functionality, or timely performance of the Services caused by such circumstances will not constitute a breach of the Agreement;
(d) usage of the Services in breach of the Agreement and/or the Law;
(e) disturbances in accessibility of offered Services, unless not caused intentionally by Virbe;
(f) damages suffered by the Customer, End-User, or any other person or entity having arisen due to the third-party claims, suspension or closing of the account by the Customer, or for other reasons arising from the Customer’s fault;
(g) damage incurred by the Customer, End-Users, or any other person or entity as a result of Customer’s third party usage of Services that enable or prevent the Customer or End-Users from accessing the provided Services;
(h) damages caused by the Customer or the impossibility to use Services, incidental and consequential damages, including damage actually suffered, the loss of expected profits/benefits, data loss, damage or computer crash, the costs of substitute equipment and software, shut-down, or company reputation infringement;
10.1 Links on the Company's website to third party websites are provided only as a convenience to you. If you use these links, you will leave the Company's website. The Company does not control or endorse any such third party websites. The Customer agrees that the Company and its affiliates will not be responsible or liable for any content, goods or services provided on or through these outside websites or for your use or inability to use such websites. You will use these links at your own risk.
11.1 Virbe will be entitled to modify the provisions hereof, as well as any documents issued hereunder ("Amendments"), at its convenience, and the Customer shall be bound by the Agreement in the version currently available at the Company's website. Any changes to the provisions hereof shall be effective upon the lapse of fourteen (14) days from the notification thereof to the Customer. Therefore, we encourage you to periodically familiarize yourself with the current and up-to-date version of the terms and conditions on our Internet website.
11.2 Upon being notified of changes of the provisions hereof, as per Clause 11.1 below, within the period of fourteen (14) days from receiving such a notification, the Customer shall be entitled to terminate the Agreement upon immediate effect, by the way of a written (including in electronic form) notification delivered to the Company, whereas: (i) such a termination shall not have any adverse consequences for the Customer, (ii) lack of such a termination shall be deemed as a consent for the Amendments.
11.3 Clauses 11.1 and 11.2 shall apply accordingly to any changes to the Subscription Plans, including the price list.
12.1 Any and all notifications from the Company to the Customer shall be made electronically, either through the Customer's Account, or on the Customer's contact e-mail provided in the Account Information.
13.1 In case the Customer breaches the Agreement or the provisions of the Law in connection with the use of the Services, Virbe shall be entitled to suspend the provision of the Services to the Customer and/or terminate the Agreement with immediate effect. In case of the above, Virbe shall not be liable for any damages whatsoever incurred by the Customer, the End-User, or any other third party.
13.2 The Customer is entitled to terminate this Agreement upon 30-day notice, however not earlier than upon the expiration of the Subscription Period.
13.4 Closing the account by the Customer before the end of Subscription Period for which a payment has been made does not obligate Virbe to refund the amount for the unused period.
14.1 Entire Agreement
To the broadest extent possible under the Law, the Agreement shall exclusively govern the contractual relationship between the Customers and the Company.
In the event of any conflict between these terms and conditions and any other document constituting the Agreement, the provisions of these terms and conditions shall prevail.
If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, and such a term and/or provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the Parties.
14.3 No waiver of rights
Failure to exercise or enforce any rights or provisions of the Agreement by Virbe shall not constitute a waiver of such a right.
Virbe is entitled to assign any rights and/or obligations under the Agreement to any of its affiliates, without prior consent of the Customer. The Customer is not entitled to assign any rights or obligations under this agreement to any third parties without Virbe’s prior consent.
14.5 Governing Law
The Agreement shall be governed by the laws of Poland, without giving effect to any principles of conflicts of law.
14.6 Claims & Jurisdiction
Any claims under the Agreement should be notified to Virbe at the following e-mail: [email protected], providing detailed description of the factual and legal grounds for raising the claims. Virbe shall respond to each claim within the period no later than within 30 days and will use its best endeavours to resolve such a claim no later than within 90 days.
Any disputes related to the Agreement, which cannot be resolved amicably, in particular in accordance with the claims procedure described above, shall be resolved by the common courts in Poland, competent for the seat of the Company.
Technical Requirements for Virbe Beings Web Manager
We make sure to support most recent versions of the following browsers:
- Desktop Mac: Chrome, Safari, Firefox
- Desktop Windows: Chrome, Firefox
Technical Requirements for Virbe Beings Web Plugin & Virbe Beings Live Preview
We make sure to support most recent versions of the following browsers:
- Desktop Mac: Chrome, Safari, Firefox
- Desktop Windows: Chrome, Firefox
- Mobile Android: Chrome, Firefox
- Mobile iOS: Chrome, Safari, Firefox