Vortic x Untitled 2023 Terms & Conditions

1. TERMS OF USE

1.1 These Terms of Use and Data Protection Agreement (DPA) (together, the Terms) and the Subscription Confirmation are between you and Vortic Limited (company number 12644541) whose registered office is at 40 Queen Anne Street, London W1G 9EL, England (‘Vortic’/us/we) and set out how you can use and subscribe to our Services. Our Privacy Notice and cookie policy also apply, and should be read together with these Terms.

1.2 By using our Services (including by accessing and using our websites, or creating a subscription to use our Services) you agree to these Terms and the additional documents noted above. Please read the Terms and these additional documents carefully and contact us if anything is unclear

2. DEFINITIONS AND INTERPRETATION

The definitions in this Clause apply in the Terms:

Additional Services: this includes any agreed services that Vortic provides to you in addition to the Services, which may include custom work, the creation of 3D environments, 3D scanning and capture of works of art and digital assets, and post production processing.

Authorised Users: those of your employees, agents and independent contractors that you authorise to use the Services.

Content: any and all information, data (including personal data and/or personal information), text, music, audio, images, avatars, photographs, graphics, video, messages, comments, branding (including any trade names, trade marks, service marks, logos), tags, computer code, software, and other materials (including any of the above presented in an interactive, simulated, immersive, or extended reality environment) that is submitted, posted, displayed, published, reproduced, contributed, provided, or otherwise distributed or used on or through the Services.

Platform: Vortic’s extended reality software application, which it has developed to enable users to remotely view and engage with works of art with technology applications for use on mobile, iPad, desktop computers, and virtual reality headsets, including any updates or upgrades we may make to the software application from time to time.

Purpose: to use the Content in any and all media now known or later developed including in our Services:

(i) to enable you, and users of our Services, to make full use of the Services;

(ii) to allow us to improve and develop our Services and create new services;

(iii) for any sales and marketing activities (including social media) to promote part or all of our Services as agreed with you from time to time; and

(iv) other purposes referred to in our Privacy Notice, the DPA (or both).

Services: means all products, services, content, features, technologies or functions provided by us now or in the future, including the Platform, the Vortic embeddable web player, our websites, and any other online, offline, or mobile products and services on or via any platform or technology.

Subscription Confirmation: means Vortic’s subscription confirmation or other document that describes the Services or subscription plan ordered by you and the applicable Fees, expenses, length of subscription, and any other relevant terms.

Use: the way in which Your Content is deployed by us in providing the Services, which may include reproducing, downloading, copying, modifying, hosting, electronically storing, caching, displaying, communicating, transmitting, publishing, preparing derivative works, performing, making available and distributing Your Content to users of the Services.

Your Content: means any Content that you or someone on your behalf submits, posts, publishes, displays, reproduces, contributes, provides, or otherwise distributes or uses on or through the Services.

2.2 Interpretation: any phrase introduced by the terms “including”, “include”, or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.

3. LICENCES

3.1 The Services contain software, technology, confidential information and Content that is protected by intellectual property rights and other laws. All intellectual property rights in the Services and the Content belong to or are licensed to us. Subject to your compliance with these Terms, until your subscription is terminated we grant you a limited, personal, non-sublicensable, non-transferable, non-exclusive, revocable, right to use our Services (based on your subscription plan) and enter, upload, submit, post, display, publish, reproduce, provide, or otherwise distribute, show or use any of Your Content on or through our Services.

3.2 Our Services may include open source software. Use, reproduction and distribution of components of the Services licensed under an open source software licence are governed solely by the terms of that open source software licence and not these Terms. You acknowledge that any open-source software is provided “as is” and expressly subject to the disclaimers in Clause 10.

3.3 You retain ownership rights in Your Content. You grant us a non-exclusive, worldwide, royalty-free, sublicensable and transferable (to our third party suppliers and contractors) licence to Use Your Content for the Purpose.

3.4 By granting the licence in Clause 3.3, you also grant us the express right to grant a sublicense to users of the Services to the extent necessary for users to view and access Your Content through the Services, and to Use Your Content if permitted by a feature of the Services such as the Vortic embeddable web player (but not the right for the user to make use of Your Content independent of the Services).

3.5 You grant us a non-exclusive, worldwide, royalty-free, to use and display your name, logo, trade mark, and other distinctive brand features (Branding) in connection with the Services, including to identify you as a customer of ours on our websites, social media, and in other publicity and marketing activities. All intellectual property rights in your Branding licensed under this Clause 3.5 are and will remain your property. We will use your Branding in compliance with any branding guidelines you provide.

3.6 Nothing in these Terms gives you a right to use any of our trade names, trade marks, service marks, logos, domain names, or other distinctive brand features without our prior written consent.

3.7 The licences granted by you in Clauses 3.3 to 3.5 will continue for a commercially reasonable period of time after you remove or delete Your Content from our Services. You acknowledge and agree that we may retain, but not display, copies of Your Content that have been removed or deleted.

4. RESTRICTIONS

4.1 You acknowledge and agree that you are solely responsible for your (and your Authorised Users’) safe use of, and interaction with, the Services and you use them at your own risk. Vortic does not supervise any use of the Services, either by you, your Authorised Users, or any other user of the Services.

4.2 There may be important third party documents that are applicable to use of extended reality services, including terms and conditions, privacy policies, warnings, guidelines and/or instructions of any third party hardware or software provider, or manufacturer of virtual reality headsets (Third Party Documents). In relation to all such Third Party Documents you agree that:

(a) you will (and you will procure that your Authorised Users will) read these before you use the Services; and

(b) it is your responsibility to provide them to users of the Services before they use the Services.

4.3 You acknowledge and agree that Vortic is not responsible for, does not endorse, and has no obligation to oversee, monitor, review, censor, screen, or moderate any Content, or any interactive service we provide on our Services. You must evaluate and bear all risks associated with the use of any Content, including any reliance on the safety, accuracy, completeness, or usefulness of any Content.

4.4 You warrant, represent, and agree that all of Your Content will be accurate and up to date and that you:

(a) have all necessary rights, permissions, licences and consents to enter, upload, submit, post, display, publish, reproduce, provide, or otherwise distribute, show or use any of Your Content on or through our Services and for the Purposes and you will promptly provide written evidence of this to our reasonable satisfaction on request;

(b) are legally responsible (and we have no responsibility to you or to any third party) for Your Content and any data that you create, transmit, process or display as part of Your Content;

4.5 In relation to the use of our Services by you and your Authorised Users, you warrant, represent, and agree that you will (and you will procure that your Authorised Users will):

(a) comply with all applicable law, in particular applicable data protection laws;

(b) not resell, sub-license, disclose or pass the Services to a third party in any way not expressly permitted under these Terms;

(d) take all reasonable steps to ensure that: (i) only your Authorised Users are allowed to access the Services under these Terms; (ii) your access credentials to the Services are kept confidential and secure, used properly by your Authorised Users, and not disclosed to unauthorised people or used in an unauthorised way; and (iii) you will notify us in writing as soon as you become aware of any actual or suspected unauthorised use of our Services;

(e) not try to access the Services using a method other than the interface and the instructions that we provide (for example by using automated means without our permission, including harvesting bots, robots, spiders, or scrapers);

(f) not access, modify, copy, adapt, distribute, reproduce, download, transmit, broadcast, display, decompile, decode, reverse engineer, disassemble, extract source code, create derivative works of, or otherwise translate or convert, or use any of the Content or Services, except to the extent expressly permitted by these Terms or applicable law, or with our prior written consent;

(g) not act in such a manner that would be detrimental to us or cause us to be in breach of any applicable law;

(h) not use the Services in any way or for any purpose that infringes or misappropriates any intellectual property right or other rights of Vortic or any third party, including by the submission, use, display, reproduction, provision, or distribution of any of Your Content through the Services;

(i) not use the Services in any way to compete with us or to build products or services that compete with our products or services, or create any software whose expression is substantially similar to that of the Services;

(j) not act fraudulently or maliciously, for example, by hacking or inserting malicious code (such as viruses, Trojans, worms, spyware, time-bombs, keystroke loggers, adware, or other harmful programmes or data) into the Services or any operating system;

(k) not do anything that could disrupt, disable, overburden, cause a material risk to, undermine, or damage the Services, our systems, software, security or operations, or interfere with any other users;

(l) use the Services to remotely view and engage with Content in an indoors environment only. You will always be in a safe space indoors and aware of your surroundings when you are using the Services. You will not use the Services in any situations that require your attention, as using extended reality may compromise your vision, hearing, and alertness;

(m) not use the Services for the purpose of harming or attempting to harm minors in any way;

(n) comply with all technology control or export laws and regulations that apply to the technology used or supported by the Services

(o) comply with any minimum or maximum (or both) limits of your selected subscription plan and/or our Services that we notify you about from time to time, including the features of your selected subscription plan and any Additional Services;

(p) not use the Services in any way, or submit any of Your Content to the Services, that: (i) does not comply with these Terms or applicable law; (ii) is associated with, promotes, features, encourages, facilitates, or condones illegal activity or violence; (iii) is to send or otherwise post unsolicited or unauthorised communications, advertising or promotional material (such as spam); (iv) contains or links to any content that is fraudulent, misleading, malicious, deceptive, discriminatory, harmful, inflammatory, offensive, defamatory, obscene, unethical, infringing or violative of any third party right, or otherwise objectionable; (v) involves the sale or advertisement of tobacco products, ammunition, firearms, counterfeit goods, and/or pornography; or (vi) contains any special categories of personal data except with the explicit consent of the data subject and in compliance with the DPA and all applicable laws;

(q) ensure that any Authorised User is aware of and accepts the terms of the Privacy Notice.

5. FEES

5.1 You will pay us a subscription fee in advance for the use of our Services as specified in the applicable Subscription Confirmation, based on the plan you select when you create your subscription (the “Fee”) together with any fees for Additional Services. You can see our subscription plan tier and Fee structure and the features of the Services we provide under the different plans in our pricing plan here: https://partners.vortic.art/pricing, which forms part of these Terms. We may amend our pricing plan from time to time and will provide notice of this as a material change, as set out in Clause 9 below.

5.2 Online subscriptions: If you have subscribed online, the Fee for your subscription is payable online by credit or debit card at the start of the subscription period.

5.3 Invoice subscriptions: If we have agreed payment of the Fee by invoice, a customised software project, a customised subscription, add ons or Additional Services with you, we will invoice you the Fees for these services and this invoice will be payable within 14 days of its date.

Subscription Upgrades

5.4 For any upgrade to either a monthly or annual subscription plan, once the upgrade has been processed your old subscription will immediately end and the term of your new upgraded subscription will begin. We will issue you a new Subscription Confirmation, charge you the relevant Fee for your new subscription plan, and the amount of any prepaid Fees applicable to the unused portion (if any) of your old subscription plan will be credited to your account.

5.5 If you have subscribed online, you can upgrade your subscription plan online at any time through your account. If you pay the Fee by invoice you can upgrade your subscription plan at any time by contacting a member of the Vortic team or by emailing us at support@vortic.art and we will process your upgrade as soon as practicable.

Subscription Downgrades

5.6 You can request a downgrade of the tier of your monthly subscription plan at any time. We will issue you a new Subscription Confirmation, apply the downgrade at the start of your next monthly billing cycle, and charge you the relevant Fee for your new subscription plan.

5.7 You can request a downgrade of the tier of your annual subscription plan at any time, although we will not apply the downgrade until the end of your current annual subscription term. At the end of your current annual subscription term, we will issue you a new Subscription Confirmation, apply the downgrade, and charge you the relevant Fee for your new subscription plan.

5.7 If you have subscribed online, you can downgrade your monthly subscription plan online through your account. If you pay the Fee by invoice, you can request to downgrade your monthly subscription plan at any time by contacting a member of the Vortic team or by emailing us at support@vortic.art. You will not receive a refund for any Fees that are paid or payable in respect of your old subscription plan.

5.8 All sums payable under these Terms are exclusive of VAT or any similar applicable taxes, including sales or value-added taxes. You are responsible for paying all applicable fees, taxes, levies, or duties associated with your subscription to or use of the Services.

5.9 All payment processing services provided to you in relation to the Fees and any other amounts due under these Terms are provided by our nominated payments provider. Any obligations owed to you under these Terms or under financial services regulation relating to the provision of payment services are owed by the payment provider, not Vortic.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 We own all intellectual property rights in our Services, and all related confidential information and documentation, unless otherwise stated. This includes rights in all copyrighted works, inventions, designs, trade marks, moral rights, databases, domain names, and any other intellectual property (including registrations and applications for, and renewals or extensions of, such rights, and similar or equivalent rights or forms of protection in any part of the world).

6.2 If you provide us with any feedback regarding our Services (including suggestions, comments, improvements, ideas, proposals or documents) (Contributions), you agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) we are not under any obligation of confidentiality regarding those Contributions; (iii) we may have something similar to the Contributions already in development or under consideration; (iv) we may use or disclose (or not) such Contributions for any purpose in any way; (v) your Contributions automatically become the property of Vortic without any obligation of Vortic to you; and (vi) unless otherwise specifically agreed with us in writing, you are not entitled to any payment, compensation or reimbursement of any kind from Vortic.

6.3 If a third party notifies you of any claim that the use of our Services infringes any right of a third party, you will immediately notify us in writing. If any such claim is made to you or us, you will, at our request, immediately cease use of our Services. If we are unable to allow you to continue using our Services the provisions of Clause 14 will apply. This Clause constitutes your sole and exclusive remedy in respect of any such third-party claims.

7. CONFIDENTIALITY

We may both share or become aware of confidential information about each other when you use our Services. We both agree to take reasonable steps to protect each other’s confidential information and keep it from being accessed by unauthorised individuals. Either of us may share each other’s confidential information with legal or regulatory authorities to the extent legally required to do so.

8. DATA PROTECTION

The parties agree to comply with the terms of the DPA (available on our website, as updated from time to time in accordance with Clause 9) in respect of how any personal data will be used, processed, shared and managed.

9. CHANGES

9.1 You can see the most current version of the Terms on our website www.vortic.art (the date these were last updated is set out at the top of the Terms). You can download a copy of these Terms and keep them for future reference or ask us for a copy at any time.

9.2 We may change these Terms from time to time and will generally give you notice of material changes by sending you an email. We may also make some changes immediately, without notice, for example if they:

(a) are required for legal or security reasons;

(b) relate to a new service or extra functionality and do not affect terms relating to the existing Services, or are not a material change.

9.3 You should stop using our Services if you do not agree to any proposed changes to the Terms (including any increase to the Fees) and remove all of Your Content. If you do not terminate these Terms and cancel your subscription during the notice period (either by cancelling your online account if you have subscribed online, or by emailing us at support@vortic.art) and you keep using our Services from the effective date of any new terms, we will consider you have accepted the change.

10. ACCESSING OUR SERVICES

10.1 Other than as expressly set out in these Terms, we do not make any specific promises about the Services. All warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose, reasonable care and skill or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law. The Services and all third-party products and services are provided ‘as is’. Vortic does not give any warranty or representation and does not accept any liability (howsoever arising whether under contract, tort, in negligence or otherwise) in relation to: (i) any third-party software or products and services; (ii) the Content within our Services, the specific functions of the Services or their safety, accuracy, reliability, availability or ability to meet your needs or business requirements; (iii) any of Your Content being accessible on the Services; (iv) the Services operating in a manner which is uninterrupted or free from minor errors or defects; or (v) the Services being compatible with any particular software, hardware or equipment.

10.2 Occasionally, we may have to interrupt the use of the Services, for example to perform maintenance; if we do, we will try to minimise the downtime and to notify you in advance if possible. We cannot guarantee that the Services will be free from bugs or viruses, or never be faulty. We may suspend, withdraw, or stop any part of our Services without notice.

10.3 We may automatically issue updates, changes and enhancements to our Services from time to time without notice, and will notify you in accordance with Clause 9 if such changes involve a material change to the Terms.

10.4 If you have granted permission to a third party to access your account, we may refuse access to that third party if we are concerned about unauthorised or fraudulent access by that third party. We will give you notice if we do this, unless notifying you would be unlawful or compromise our reasonable security measures.

10.5 You may contact our team for support by emailing us at: support@vortic.art. This email address is monitored between the hours of 10am to 6pm on business days in England.

10.6 It is your responsibility to back up any data you enter into our Services. You acknowledge and agree that you are solely responsible for any damage to your systems or other devices or loss of data that results from use of our Services.

10.7 If you’re dissatisfied with our Services, including any access issues, downtime, or data loss, your only remedy is to stop using our Services.

11. INDEMNITY

11.1 You will defend, indemnify and hold harmless Vortic against all costs, claims, damages, losses and expenses (including court costs and reasonable legal fees) arising out of or related to: (i) Your Content; (ii) your (or your Authorised Users’) use of or access to the Services; (iii) your breach of these Terms, any applicable law, or the rights of any third party (including any intellectual property rights, data protection or privacy rights).

11.2 Subject to Clauses 11.3 and 11.7, Vortic will:

(a) defend at its own expense any claim brought against you by any third party alleging that your use of the Services infringes any copyright, database right or registered trade mark, registered design right or registered patent in the United Kingdom (IP Claim); and

(b) pay, subject to Clause 11.4, all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.

11.3 In respect of an IP Claim under Clause 11.2 you will:

(a) immediately notify Vortic upon becoming aware of any actual or threatened IP Claim and provide full written particulars;

(b) make no comment or admission and take no action that may adversely affect Vortic’s ability to defend or settle the IP Claim;

(d) give Vortic sole authority to defend or settle the IP Claim as Vortic considers appropriate.

11.4 The provisions of Clause 12 shall apply to any payment of costs and damages awarded or agreed in settlement or final judgment of an IP Claim under Clause 11.2.

11.5 If the Services are or are likely to become subject to an IP Claim, Vortic may use reasonable endeavours to:

(a) obtain the right for you to continue to use the Services; or

(b) replace or modify the Services (or the part of it subject to the IP Claim) so that it becomes non-infringing without materially affecting its functionality.

11.6 If Vortic is unable to achieve either of the outcomes described in Clause 11.5 having used reasonable endeavours or otherwise elects to proceed under this Clause 11.6 then, on receiving written notification from Vortic, you will immediately stop using the Services and these Terms will immediately terminate. This Clause 11.6 is without prejudice to your rights and remedies under Clause 11.2.

11.6 Vortic will have no liability or obligation under this Clause 11 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from:

(a) any modification of the Services without Vortic’s approval;

(b) use of the Services otherwise than in accordance with these Terms or Vortic’s instructions; or

(c) installation or use of the Services in combination with any software, hardware or data that has not been supplied or expressly authorised by Vortic.

11.7 The provisions of this Clause 11 set out your sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.

12. LIABILITY

12.1 We will not be in breach of this Agreement or otherwise liable for any failure or delay in the performance of any of our obligations as a result of events, circumstances or causes beyond our reasonable control.

12.2 Except as expressly and specifically provided in these Terms you assume sole responsibility for results obtained from the use of the Services, and for any conclusions drawn from such use. We will have no liability for any damage caused by errors or omissions in any information, instructions or Content you provide to us in connection with the Services, or any actions we take at your direction.

12.3 Subject to Clauses 12.1 and 12.2:

(a) Vortic’s total aggregate liability howsoever arising under or in connection with these Terms or the Subscription Confirmation (including in respect of the indemnity in Clause 11.2) is limited to the total aggregate Fee paid hereunder for the 3 months immediately preceding the date on which the claim giving rise to the liability arose;

(b) Vortic will not be liable whether in tort, contract, misrepresentation, restitution or in any other way for: (i) any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms; or (ii) any of the following (whether direct or indirect): loss of profits; loss of business; loss or damage to equipment; loss of opportunity; loss of savings, discount or rebate (whether actual or anticipated); harm to reputation or depletion of goodwill and/or similar losses; loss or corruption of data or information; or pure economic loss.

13. TERM

Unless terminated earlier in accordance with Clause 14 your subscription will continue for the period applicable to your selected subscription plan as set out in the Subscription Confirmation. At the end of each subscription period (whether monthly or annual) your subscription will automatically renew under these Terms for a further period of the same duration as the previous one, provided you have paid, and continue to pay, the Fees in accordance with these Terms.

14. SUSPENSION AND TERMINATION

14.1 Termination by you: You may terminate these Terms by giving us at least 7 days written notice in advance before the end of the current subscription period. For the avoidance of doubt, if you terminate early, you will still need to pay all relevant Fees up to the end of the subscription period for your subscription plan and will not receive a refund for any Fees that you have already paid.

14.2 Notice and Takedown provision: We may immediately suspend your subscription or access to our Services, in whole or in part, and may remove or take down Your Content, if: (i) we believe in our sole discretion that you, any of your Content, or your use of the Services is in breach of any of these Terms or any applicable law or may cause harm to us, users of our Services, or other third parties; or (ii) we are required to do so by any competent court or government agency. As a final option, where Vortic has first used commercially reasonable efforts to resolve the problem, Vortic may terminate these Terms and close your account.

14.3 Termination by Vortic: We may terminate these Terms and your subscription at any time:

(a) by providing you with 30 (thirty) days written notice in advance;

(b) on written notice to you if we discontinue or withdraw, in whole or in part, our provision of the Services to all customers. In such a case, we will use reasonable endeavours to give you as much notice as reasonably practicable.

14.4 We may also immediately without notice suspend (in whole or in part) your account or terminate these Terms and close your account if:

(a) we have reasonable concerns about the security, unauthorised, or fraudulent use of your account;

(b) we reasonably believe you are in breach of applicable law or any of these Terms;

(d) you fail to pay the Fees following the payment due date;

(e) you have given us false information;

(f) you have been abusive to anyone at Vortic; or

(g) you have not accepted changes to these Terms.

14.4 Where practicable, we will give you notice of any suspension under these Terms and the reasons for such suspension as soon as we reasonably can, unless it would compromise our security measures or be otherwise unlawful. If we suspend your subscription or access to the Services: (i) all Fees applicable to the suspended Services are still payable; and (ii) you will not be entitled to any compensation, refunds or credits for the reasonable period of suspension, unless this suspension was due to our error or omission.

14.5 Mutual termination: Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice to the other party if:

(a) the other party: (i) commits a material breach of these Terms and (if that breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; or (ii) commits a series of breaches of these Terms which when taken together have the impact or effect of or otherwise amount to a material breach; or

(b) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business, becomes insolvent, is unable to pay its debts as they fall due, goes into liquidation, has a receiver or manager appointed over any of its assets, makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction.

14.6 On termination or expiry of the Terms for any reason:

(a) you will cease using the Services and any other activities authorised by these Terms, and all rights granted to you under these Terms will cease;

(b) we may immediately disable your use of the Services and delete your account and data;

(c) you remain liable for all Fees and expenses, and any other obligations you have incurred during your Subscription, and you will immediately pay to us any outstanding amounts you owe us under these Terms up to and including the date of termination or expiry; and

(d) any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Terms will remain in full force and effect.

14.7 Termination or expiry of these Terms will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Terms which existed at or before the date of termination or expiry. Your statutory rights are not affected.

15. GENERAL

15.1 The person accepting these Terms on your behalf represents that they are authorised to enter into these Terms on your behalf, and to bind you to its terms and conditions.

15.2 The Terms represent the entire agreement between the parties and supersedes and extinguishes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them, whether written or oral, relating to its subject matter. Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.

15.3 No failure or delay by a party to exercise any right or remedy provided under the Terms or by law, or a single or partial exercise of such right or remedy, will constitute a waiver of that or any other right or remedy, nor will it preclude or restrict the further exercise of that or any other right or remedy.

15.4 You will not assign, novate, subcontract, sublicense, or otherwise transfer any of your rights or obligations in the Terms without our prior written consent. We may at any time assign, novate, subcontract, sublicense, or otherwise transfer any of our rights or obligations in the Terms without your consent.

15.5 All notices and other communications under these Terms will be made in writing. Any notice you send us must be sent to Vortic at support@vortic.art or through your online account if you have subscribed online. Any notice we send you will be sent to the primary email address you provided when you registered for the Services.

15.6 These Terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms or their subject matter or formation.

SCHEDULE

1.BACKGROUND

1.1 Art Fairs Unlimited LLC (Untitled Art) is a US based company organising a leading international art fair that brings together over 130 art galleries and a global audience for the Untitled Art Fair 2023 from 6 to 10 December 2023 (Untitled Fair). The virtual exhibition of the Untitled Fair (Virtual Exhibition) will be hosted on the Vortic Platform until 26 January 2024. This Schedule sets out terms between you and us specific to your participation in the Virtual Exhibition for the Trial Period (defined below).

1.2 By using our Services to create and display Your Content for the Virtual Exhibition during the Trial Period you agree this Schedule will apply to such use in addition to the Terms set out above (save as amended in this Schedule), our Privacy Notice and cookie policy. In the event of any inconsistency or conflict between this Schedule and the Terms, the terms of the Schedule will prevail to the extent of the inconsistency or conflict solely in relation to the Virtual Exhibition.

1.3 By using our Services to create and display Your Content for the Virtual Exhibition during the Trial Period Your Content will automatically be eligible to enter a prize draw that is sponsored by Vortic, as set out in Clause 8 of this Schedule.

2. TERM

Clause 13 of the Terms is replaced with the following clause for the purposes of this Schedule: “Your trial period will start from the date that you accept the Terms and will continue until 26 January 2024, unless an extension is agreed in writing by the parties (Trial Period).”

3. LICENCE

Clause 3.1 of the Terms is replaced with the following clause for the purposes of this Schedule to reflect that the licence granted by Vortic relates solely to your use during the Trial Period: “The Services contain software, technology, confidential information and Content that is protected by intellectual property rights and other laws. All intellectual property rights in the Services and the Content belong to or are licensed to us. Subject to your compliance with this Schedule and the Terms, we grant you a limited, personal, non-sublicensable, non-transferable, non-exclusive, revocable, right during the Trial Period solely for the purposes of the Virtual Exhibition to use our Services and enter, upload, submit, post, display, publish, reproduce, provide, or otherwise distribute, show or use any of Your Content on or through our Services.”

4. FEES

The parties agree that no Fees will be payable under Clause 5 of the Terms for the use of the Services during the Trial Period solely for the purposes of the Virtual Exhibition.

5. LIABILITY

You agree that as you are using the Services free of charge during the Trial Period solely for the purposes of the Virtual Exhibition it is reasonable that:

(a) Vortic will have no liability of any kind in any circumstances to you in respect of the Services, including without limitation any liability for negligence (save for death or personal injury caused by Vortic’s negligence);

(b) Vortic gives no warranty of any kind in respect of the Services and all statutory and implied warranties, terms and conditions are excluded to the full extent allowed by law;

(c) you are solely responsible for any breach of your obligations under this Agreement, any applicable third party contract, or any applicable law, including the consequences of any such breach; and

(d) Clauses 11.2 to 11.8 and Clause 12.3 of the Terms do not apply to your use of the Services.

6.TERMINATION

Unless terminated earlier in accordance with Clause 14 of the Terms, the Terms will automatically terminate on the earlier of the end of the Trial Period, or a full licence agreement for the Services being entered into by the parties.

7. MARKETING PERMISSIONS

The following additional marketing permissions apply for the purposes of the Virtual Exhibition:

(a) Untitled, Vortic and you agree to coordinate and promote Your Content in the Virtual Exhibition through their and your usual marketing channels in the lead up to and duration of the Virtual Exhibition, including website, newsletter and social media.

(b) Marketing Assets (Marketing Assets) will be used by Vortic and made available to you to promote the exhibition. This may include high resolution artwork images, written copy and audio files that you have uploaded to the platform, as well as installation views, videos and video flythroughs which will be created by Vortic and provided to you.

(c) You grant permission for the Marketing Assets you provide to be used by Vortic for the promotion of the Virtual Exhibition (including promoting the winners of the Prize Draw, if applicable) in accordance with the licences granted in Clauses 3.3 to 3.5 of the Terms. Any additional content created by Vortic to promote the Virtual Exhibition will be agreed and approved on a case by case basis.

(d) You acknowledge Vortic’s contribution and technical expertise in realising the Virtual Exhibition, and agree to refer to Your Content being ‘Powered by Vortic’ in all communications, publicity and marketing activities, including on your websites and in social media, regarding the Virtual Exhibition.

(e) Winners of the Prize Draw may be required to take part in promotional activity related to the Prize Draw, and will participate in such activity on Vortic’s reasonable request. Vortic will secure the relevant permissions from the Prize Draw winners to promote the award online and on social media channels, including appropriate credits to the winners, the relevant artists involved, and Untitled Art.

8. PRIZE DRAW TERMS AND CONDITIONS

8.1 This prize draw (Prize Draw) is offered and promoted by VORTIC LIMITED (company number 12644541) whose registered office is at 40 Queen Anne Street, London W1G 9EL, England. By entering the Prize Draw, you agree to the terms and conditions set out in this Clause 8, as well as the Terms and the additional documents noted above.

8.2 You are eligible to enter the Prize Draw if:

(a) you will be an exhibitor at the Untitled Fair. You will be invited by email to sign up to the Vortic Platform and receive information on how to create and display Your Content for the Virtual Exhibition;

(b) you accept the Terms and use our Services to create and display Your Content for the Virtual Exhibition during the Trial Period (you will be automatically entered into the Prize Draw at this time); and

8.3 No purchase is necessary to enter the Prize Draw. You will need access to the internet in order to accept the Terms and use our Services to create and display Your Content for the Virtual Exhibition. Only one entry into the Prize Draw is permitted. You can create and display multiple virtual rooms of Your Content within the Virtual Exhibition by using the Vortic Platform, and this will only count as a single entry into the Prize Draw.

8.4 Your Content must be created and displayed in final form within the Virtual Exhibition no later than Friday 27 October 2023, 11:59PM GMT.

8.5 The Virtual Exhibition will continue online until January 26, 2024. It is expected that:

(a) the Virtual Exhibition will be taken down from the Untitled channels on December 29 2023.

(b) the Virtual Exhibition will be taken down from the Vortic Platform on January 26 2023.

(c) Your Content may remain accessible on the Vortic Platform and through the embeddable link for you to use on your website.

8.6 Vortic and Untitled will provide a physical booth for Vortic to display a selection of the Participants’ exhibitions at the Untitled Fair. Vortic will cover the production costs for the virtual reality presentation including technical and display equipment, tables, chairs and promotional materials.

8.7 There will be three prizes awarded in the Prize Draw (Prizes):

(a) first place: a prize for the ‘Best Digital Presentation’ of $10,000 USD, which will be awarded and paid directly to the winning gallery. In addition, Vortic will award the winning gallery a complimentary one year subscription of Vortic’s Pro Suite subscription package for the Vortic Platform under the Terms (with the subscription starting on 27 January 2024) and one Meta Quest 2 headset.

(b) second place: a prize of a complimentary one year subscription of Vortic’s Standard Suite subscription package for the Vortic Platform under the Terms (with the subscription starting on 27 January 2024) and one Meta Quest 2 headset.

(c) third place: a prize of a complimentary one year subscription of Vortic’s Standard Suite subscription package for the Vortic Platform under the Terms (with the subscription starting on 27 January 2024).

Details of Vortic’s subscription plans can be found online at https://partners.vortic.art/pricing.

8.8 The Prizes are not transferable, for sale, re-sale or auction and cannot be exchanged or substituted for a cash alternative.

8.9 Vortic will host a webinar to share information on how to create and display Your Content for the Virtual Exhibition and provide instructions on how to embed the Virtual Exhibition link on your website.

8.10 All eligible entries into the Prize Draw received, verified and accepted by Vortic will be judged by a panel of three experts (one each appointed by Vortic and Untitled, and an independent third judge) from the closing date for entries on Friday 27th October until 5th December 2023. The panel will judge such eligible entries and award the Prizes based on the criteria of those entries that demonstrate a deeper understanding of the digital space and its capabilities for exhibiting art. The decision of the judges and Vortic’s decision on all matters relating to the Prize Draw (including eligibility and the operation of the Prize Draw) will be final and no correspondence will be entered into.

8.11 If you’re one of the winners, Vortic will contact you by email during the Untitled Fair to notify you of the Prize you have won. If you do not accept the Prize nomination within 24 hours of Vortic contacting you, you will forfeit your Prize and the judging panel may award the Prize to another eligible entry (using the same judging criteria). Once accepted, the winners of the Prizes will be announced at the Untitled Fair.

8.12 The prize money will be paid to the first place prize winner by bank transfer to their nominated bank account within 14 days of Vortic’s receipt of a valid invoice from the winner (please be aware that payment cannot be made when the Vortic finance office is closed from 20 December 2023 to 2 January 2024). The Meta Quest 2 headsets will be shipped by Vortic to the first and second place prize winners’ gallery or nominated address.

8.13 The winners will be solely responsible for all applicable taxes, fees, and any other costs and expenses associated with the receipt and use of the Prizes.

8.14 Vortic will process and share your personal information collected by participating in this Prize Draw in accordance with our Privacy Notice. Vortic may be required to publish or make available details of the Prize Draw, including the surnames and countries of the Prize winners. If you object to any or all of your surname, country and winning entry being published or made available, please contact Vortic at support@vortic.art. Vortic may still be required to provide your details to the UK Advertising Standards Authority.

8.15 In the event that the Prize Draw is cancelled or terminated for any reason in advance of the announcement of the winners, the Prizes will not be awarded.