By signing your Quote, you are agreeing to the listed Customer Terms & Conditions.
Please review the Customer Terms & Conditions below:
Customer Agreement Between Vivi International Pty Ltd ACN 603 692 388 (“Vivi”) and ("you")
This Agreement sets out the terms and conditions applicable to your use of the Vivi System.
1. Defined terms
1.1 Unless the context requires otherwise in this document the following terms have the following meanings;
(a) Fees means the fees payable by you for access to and use of the Vivi System as agreed by you including as evidenced by the exchange of documentation such as a quotation and corresponding purchase order from you, and includes any fees that may be changed in accordance with clause 3.4;
(b) Subscription means each subscription for use of one unit of the Vivi Hardware in conjunction with the Vivi Software (typically, for example, being one such unit and hence one such subscription per classroom);
(c) Subscription Expiry Date means the date which is 36 months from the activation of the corresponding Subscription, unless reduced or extended in accordance with this Agreement, (details of which shall be made available to you);
(d) Subscription Package means the Subscription package relevant to your use of the Vivi System, as agreed by you including as evidenced by the exchange of documentation such as a quotation and corresponding purchase order from you, as may be amended from time to time by agreement between the Parties;
(e) Subscription Term means, in respect of a Subscription, the date commencing on the activation of the Subscription and ending on the Subscription Expiry Date;
(f) User means each of you and your permitted staff, personnel and student users, as the context permits;
(g) User Content means data and content that is shared through or uploaded or input into the Vivi System by a User;
(h) Vivi Hardware means the wireless receiver enabling a variety of devices to share displays of digital content in real time, being manufactured by Vivi;
(i) Vivi Software means the software owned and licensed by Vivi facilitating interaction with and utilisation of the Vivi Hardware, being an application accessible from http://get.vivi.io and access to cloud admin portal from http://api.vivi.io
(j) Vivi System means the system comprising the Vivi Hardware and Vivi Software; and
(k) “We”/ “Us” and “Our” are references to both the Reseller and/or Vivi, unless the context requires otherwise. Further, where Vivi has exercised its step-in rights under clause 7.2(c) “we” means Vivi alone.
2. The Subscription Package/Licence
2.1. Subject to your payment of Fees, we will provide you with the rights under the Subscription Package for the Subscription Term.
2.2. Subject to your payment of the Fees, Vivi grants you a limited, non-exclusive and revocable licence to access and use (and permit your Users to access and use) the Vivi System under each Subscription for the corresponding Subscription Term, subject to the terms and conditions of this Agreement. This shall continue unless and until this Agreement expires or is otherwise terminated or cancelled in accordance with its terms. You may extend any Subscription Expiry Date by consecutive periods of 12 or 36 months by providing notice to us and subject to payment of the then applicable annual subscription Fee. You may also add Subscriptions to your Subscription Package subject to payment of the corresponding Fees. For the avoidance of doubt, the Subscription Expiry Date (being three years from activation) for each Subscription shall be three years from such activation, unless reduced or extended in accordance with this Agreement.
3. Fees and payments
3.1. Fees and any other charges must be paid either to Vivi or to your Reseller unless Vivi notifies you of its exercise of step-in rights under clause 7.2(c), in which case they shall be henceforth payable to Vivi.
3.2. You agree to pay to your Reseller (or to Vivi in the circumstances set out in clause 7.2(c)) all Fees and other applicable charges as and when they fall due. Fees are payable in advance.
3.3. We may introduce and offer new services/ products by giving you written notice of their availability and applicability along with details of any corresponding Fees. If you choose to accept these, you agree to pay the corresponding Fees.
3.4. We shall notify you of any changes to existing Fees (other than Fees that are fixed for the Subscription Term or a period thereof under this Agreement) no less than 14 days before the end of the then current billing cycle.
3.5. We may revoke or suspend your access to the Vivi System (temporarily or permanently) due to unpaid Fees and charges, without liability.
4. Use of the Vivi System and acknowledgments
4.1. You agree that we shall be entitled to consider any person who registers as a User as being authorised to do so by you. You are responsible and liable for all activity occurring through each Subscription and all corresponding Fees and charges.
4.2. You shall (and shall procure that Users shall) only use the Vivi System for lawful, non-commercial purposes and not use it to engage any conduct that is unlawful, threatening, abusive, breaches the rights of any person, including their intellectual property rights or privacy rights, or that we otherwise deem unreasonable.
4.3. You acknowledge that the Vivi System is dependent on third-party goods/services which you must arrange/supply/procure at your own cost and risk, such as Internet services and a main display in the relevant learning space with a HDMI input and a robust wireless network for interface with the Vivi Hardware.
4.4. It is your responsibility to meet the obligations of all applicable privacy laws including by implementing a privacy policy in accordance with such laws. You agree that you and each User must not do anything to jeopardise the security of the Vivi System or privacy of other users.
4.5. To the extent permissible at law:
(a) you and your Users use the Vivi System at your own risk and under no circumstance will we be liable for any injury, illness, death or damage to property resulting from the use of the Vivi System;
(b) we accept no liability for the accuracy of your or any Users’ reliance on any information accessed or made available using the Vivi System.
(c) without limiting any other provision of this Agreement, you must indemnify and hold Vivi and the Company harmless against all costs, claims damages and expenses for any:
i. penalties or fines imposed by third parties upon Users;
ii. injury, illness or death caused to Users or third parties;
iii. damage to the property of Users or third parties;
iv. claims of infringement of intellectual property or privacy or similar rights made by Users or third parties; and
v. claims of breach of confidentiality by Users or third parties;
arising as a result of or otherwise in connection with your and any of your Users’ use of and access to the Vivi System; and
(d) you agree that we shall not be responsible or liable in any way for interruptions to the availability of the Vivi System due to failures or deficiencies of third-party services/equipment.
4.6. Vivi provides user support for the Vivi System via a dedicated support team. Vivi shall endeavour (but does not guarantee) to respond to support requests within 24 hours. Vivi reserves the right but is not obliged to upgrade, amend, add or remove features, redesign, improve or otherwise alter the Vivi System from time to time. Vivi shall not exercise its rights to do so in a manner that would intentionally cause you to lose access to User Content or fundamentally decrease the utility of the Vivi System, other than in accordance with the terms of this Agreement.
5. Vivi Hardware
5.1. Vivi retains ownership of the Vivi Hardware and legal title to it remains with it. You must use the Vivi Hardware in accordance with any instructions or directions we give you or make available to you and must keep it in good and useable and condition at all times (fair wear and tear excepted) until it is returned to or collected by us. You must notify us as soon as possible if it is faulty, damaged, interfered with or stolen. You must not attempt to repair, dissemble or modify the Vivi Hardware yourself or otherwise than through us or our authorised repairers.
5.2. We may supply the Vivi Hardware to you new or it may be refurbished to an as new condition. We will repair, maintain, and replace corresponding Vivi Hardware during the Subscription Term at our cost, unless it is damaged, interfered with, lost or destroyed due to your misuse, negligence or abuse or for factors outside of Vivi’s control such as fire or flood damage. In that case, we will charge you our reasonable costs for repairing or $200ex GST per unit for replacements.
5.3. You may request an upgrade of the Vivi Hardware. Hardware upgrades are at the discretion of Vivi and will only be considered after the Vivi Hardware has been in use by you for five years. The cost of a Vivi Hardware upgrade is AUD$50ex GST per unit (plus shipping costs) and shall be borne by you.
6. Intellectual Property
6.1. Vivi owns all rights in its trademarks (including “Vivi” and stylisations thereof) and you must not use or otherwise deal in them (or any confusingly or deceptively similar marks) without the prior written consent of Vivi.
6.2. Vivi owns or has rights to use and license the use of the Vivi System and its elements to you. All content (other than User Content) remains the intellectual property of Vivi and its licensors. You acknowledge that such is or may be protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. You must not infringe any third party’s intellectual property rights in your use of the Vivi System. You agree that you and each User will not for any purpose directly or indirectly copy, reproduce, recreate, decompile, reverse engineer or otherwise reproduce, obtain, modify or use any source or object code, architecture, algorithms relating to the Vivi System or any documentation associated with it.
6.3. We claim no right, title or interest in User Content including any intellectual property rights therein nor do we accept liability for the subject matter of any reliance upon User Content. We shall not access, use, modify or otherwise deal with User Content except where compelled by law or upon your authority (such as to provide support for the Vivi System).
7. Termination and cancellation
7.1. Without limiting your rights under clause 7.2(b), you can cancel a Subscription at any time by notifying us in writing at least 30 days’ beforehand. However, if you do so before the Subscription Expiry Date or any other fixed length period, we may charge you and you shall be required to pay any remaining fees due for the then current term. The amount(s) of the early termination charge(s) is as agreed between you and the Reseller including as evidenced by the exchange of documentation such as a quotation and corresponding purchase order from or, shall be calculated on a pro rata basis by reference to the period remaining of the Subscription Term had you not elected to cancel the Subscription.
7.2. Without limiting the generality of any other clause in this Agreement:
(a) Vivi and/or the Reseller may terminate this Agreement (and hence each Subscription and each of your Users’ rights to use and access the Vivi System) immediately by notice to you in writing if:
i. we are unable to continue to provide the Vivi System for legal, regulatory, technical reasons or other reasons beyond our reasonable control;
ii. you are in breach of any term of this Agreement and such breach is material and not capable of remedy or, if capable of remedy, has not been remedied within 14 days of us notifying you in writing to do so;
iii. you become unable to pay your debts as and when they fall due, or become or threaten or resolves to become or are in jeopardy of becoming subject to any form of insolvency administration;
iv. you (as a company) undergo a change in control; or
(b) You may, subject to 7.2(c), terminate this Agreement immediately by notice to Vivi and/or the Reseller (as the case may be) in writing if:
i. either of Vivi or the Reseller is in breach of any term of this Agreement and such breach is material and not capable of remedy or, if capable of remedy, such breach is not remedied within 14 days of you sending to the allegedly breaching party a notice to so remedy;
ii. we become unable to pay our debts as and when they fall due, or become or threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or
(c) If the events referred to in 7.2(b)(i) or (b)(ii) occur only in respect of the Reseller, then this Agreement shall not be terminable if Vivi does not agree to such termination but instead requires that the Reseller’s rights be exercised by Vivi alone, in which case Vivi shall be substituted as the sole counterparty to this Agreement, and shall itself perform and/or subcontract the performance of all obligations and be entitled to all rights otherwise ascribed to both Vivi and the Company hereunder (including all rights to payments from you) (the “step-in rights”).
7.3 When this Agreement ends, your licence to use the Vivi System ends and you must pay us any outstanding Fees and charges and return all Vivi Hardware on request. We will calculate all of the Fees and charges that you owe us when the Agreement ends. If payment has been by direct debit, you authorise us to deduct this amount from your nominated bank or credit card account. Otherwise, we will send you an invoice for all amounts owing to us and request that you return the Vivi Hardware to us, within 14 days after receiving such notice.
8. Liability & Indemnity
8.1 Vivi and the Reseller accept no risk or liability for equipment loss or damage (including but not limited to loss or damage to the Vivi Hardware) due to grid related issues, including voltage issues, atmospheric electrical discharges, flooding or water damage, however caused, lack of proper maintenance, unauthorised repair, modification or additions, connection of equipment not in compliance with specifications and/or incorrect operation by you or any of your Users.
8.2 To the extent permitted by law, you agree that you use the Vivi System at your own risk, and that in no circumstances will Vivi or the Reseller be liable for any incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from your or any Users’ access to, or use of, or inability to use the Vivi System or any content, whether such claim is based on contract, tort, negligence, in equity or any other legal theory, and whether or not Vivi and/or the Reseller knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
8.3 To the extent permitted by Law, Vivi and the Reseller’s total liability to you under this Agreement will be capped at an amount equal to the Fees paid by you in the previous 12 months.
8.4 You must indemnify Vivi and the Reseller for any loss, damage, cost or expense that either may suffer or incur as a result of or in connection with your and your Users’ use of or conduct in connection with the Vivi System, including any breach of this Agreement.
9. Miscellaneous
9.1 No right under this Agreement shall be deemed to be waived except by notice in writing signed by each party. The provisions of this Agreement shall not be varied, except by agreement in writing signed by the parties. The provisions of this Agreement that are capable of surviving termination shall do so. If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.
9.2 You may not assign your rights and obligations under this Agreement without our prior written consent.
9.3 Unless the context requires otherwise, the rights of Vivi and the Reseller are joint and several.
9.4 The law governing this Agreement will be the law in Victoria, Australia and the parties irrevocably submit to the non-exclusive jurisdiction of its courts and tribunals and to the Federal Court of Australia sitting in Victoria, Australia.
9.5 The signature of your representative below shall constitute the formation of a binding agreement between the parties named in this Agreement.