By signing your Quote, you are agreeing to the listed Customer Terms & Conditions.
Please review the Customer Terms & Conditions below:
VIVI WARRANTY COVERAGE:
Warranty is included for the length of the subscription term.
VIVI CUSTOMER TERMS & CONDITIONS:
The Customer Agreement between the Subscriber listed above and Vivi International UK Ltd (“Vivi”, we, us, or our) is governed by the following Terms and Conditions of Service (“Terms and Conditions,” along with the Quote, collectively, the “Agreement.”). Both Vivi and Subscriber have caused this Agreement to be executed by their duly authorised representative as of the date of the later signature below (“Effective Date”).
1. Defined terms
1.1 Unless the context requires otherwise in this document the following terms have the following meanings;
(a) Authorised User means any individual who is authorised by Subscriber to access the Services pursuant to Subscriber’s rights under this Agreement, including any employee or contractor of Subscriber
(b) Authorised Reseller means the person or entity identified as such in the Quote
(c) Services means the services ordered by Subscriber through a Quote
(d) Subscriber Content means data and content that is shared through or uploaded or input into the Vivi System by an Authorised User or any other end user on behalf of Subscriber;
(e) Subscription Term means the Initial Term and each Renewal Term (if any);
(f) Supported Environment means the minimum hardware, software, and connectivity configuration specified from time to time by Vivi as required for use of the Services.
(g) Vivi Hardware means the wireless receiver enabling a variety of devices to share displays of digital content in real time, being manufactured by Vivi;
(h) Vivi Software mean 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; and
(i) Vivi System means the system comprising the Vivi Hardware and Vivi Software.
2. Access/Hardware/License
2.1 Subject to your payment of Fees, and compliance with the terms of the Agreement, we will provide Subscriber with access to the Services during the Subscription Term.
2.2 Vivi is not responsible for any third party hardware used by Subscriber to access the Vivi Software. Vivi responsibility for Vivi Hardware is as described in section 5. You agree that you shall provide such hardware and connectivity necessary to satisfy the Supported Environment.
2.3 Subject to the terms and conditions of this Agreement, including Subscriber’s payment of the Fees, Vivi grants you a limited, non-exclusive, non-sublicensable, non-transferable and revocable licence to access and use (and permit your Users to access and use) the Services for the Subscription Term unless this Agreement is otherwise terminated or cancelled in accordance with its terms.
2.4 Except for the licenses expressly granted through this Agreement, Vivi owns all right, title and interest (including but not limited to, all copyright, patent, trademark and trade secret rights) to the Services.
3. Fees and Payments
3.1 Fees and any other charges must be paid to either Vivi or Authorised Reseller unless Vivi notifies you of its exercise of step-in rights under clause 8.2(c), in which case such fees shall only be henceforth payable to Vivi.
3.2 Fees must be paid in full within [30] days of receipt of an invoice from Vivi. Vivi will notify you in advance of any changes of Fees (including any changes applicable to any Renewal Term). You are responsible for paying such Fees if you continue to use the Services.
3.3 Non-payment or late payment of undisputed fees is a material breach of this Agreement. Subscriber shall pay interest on any overdue balance at the rate of 1 ½ % per month of the maximum permitted by law, whichever is less, plus all expenses of collection. We may revoke or suspend your access to the Vivi System (temporarily or permanently) due to unpaid Fees and charges, without liability.
3.4 Subscriber is solely responsible for all taxes and other governmental charges (except for income taxes), if any, imposed on Subscriber payments hereunder.
4. Subscriber Responsibilities
4.1 Subscriber is responsible and liable for all activity occurring through each Subscription. Subscriber shall not, and shall ensure that Authorised Users and other end users shall not, use the Vivi System for any unlawful or commercial purpose. Subscriber shall ensure that the Services are not used to engage in 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.
4.2 Unless otherwise specified, Vivi is not required to back up any Subscriber Content; the Subscriber is solely responsible for creating backup copies of any Subscriber Content at Subscriber’s sole cost and expense. Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and security of all Subscriber Content.
4.3 Subscriber may permit any Authorised User to access the Services as contemplated by this Agreement. Authorised User IDs or passwords cannot be shared or used by more than one Authorised User at a time. Subscriber is solely responsible for keeping such User IDs and passwords secure and Subscriber shall immediately notify Vivi of any unauthorised use of the Services or other applicable breach of security known to Subscriber.
4.4 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) 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.
4.5 Vivi may (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 Subscriber will lease the Vivi Hardware.
5.2 On request subscriber may be upgraded to new hardware, or such hardware may be modified as deemed appropriate by Vivi and Subscriber. Hardware upgrades shall be considered by Vivi on a five year refresh cycle. The cost of the Vivi Hardware upgrade shall be £40 per unit (plus additional shipping costs). Such fees shall be reflected in the applicable invoice.
5.3 If the Vivi Hardware does not perform as is intended in all material respects, Vivi shall (at its own cost) repair or replace the Vivi Hardware. Vivi will use best efforts to minimize the disruption to Subscriber’s ability to utilise the Service.
5.4 Subscriber shall be responsible for returning the Vivi Hardware at the end of the term or upon the receipt of new hardware. Subscriber shall be responsible for all costs associated with the repair or replacement of damaged or missing items.
6. Warranties and Disclaimers
6.1 Vivi represents and warrants to the Subscriber that, subject to the Subscriber maintaining the required Supported Environment, the Vivi Software will operate free from material errors during the Term.
6.2 THE LIMITED WARRANTIES SET FORTH IN SECTIONS 5.1 AND 5.2 ARE MADE FOR THE BENEFIT OF SUBSCRIBER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 5.1 AND 5.2, THE VIVI SYSTEM IS PROVIDED “AS IS” AND VIVI MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. VIVI DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED OR THAT OPERATION OF THE VIVI SYSTEM SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
7. Intellectual Property
7.1 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.
7.2 Vivi owns or has rights to use and license the use of the Vivi System and its elements to you. All content (other than Subscriber 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, disassemble, reverse engineer or otherwise reproduce, obtain, derive, modify or use any source or object code, architecture, algorithms relating to the Vivi System or any documentation associated with it.
7.3 We claim no right, title or interest in Subscriber 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 Subscriber Content except as permitted by law or upon your authority (such as to provide support for the Vivi System). For clarity, Vivi may derive aggregate, de-identified data (“Aggregate Data”) from Subscriber Content and shall own such Aggregate Data.
8. Termination and cancellation
8.1 Without limiting your rights under clause 8.2(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 end of the then-current Term, 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 Authorised Reseller including as evidenced by the exchange of documentation such as a quotation and corresponding purchase order from you to the Authorised Reseller or, if not so agreed, 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.
8.2 Without limiting the generality of any other clause in this Agreement:
(a) Vivi and/or the Authorised 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 material breach of any term of this Agreement and such breach is 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 8.2(c), terminate this Agreement immediately by notice to Vivi and/or the Authorised Reseller (as the case may be) in writing if:
(i) either of Vivi or the Authorised Reseller is in material breach of any term of this Agreement and such breach is 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 8.2(b)(i) or (b)(ii) occur only in respect of the Authorised Reseller, then this Agreement shall not be terminable if Vivi does not agree to such termination but instead requires that the Authorised 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”).
8.3 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, to a location nominated by us, within 14 days after receiving such notice.
9. Limitation of Liability & Indemnification
9.1 Vivi and the Authorised 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, intentional damage, theft, loss, 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.
9.2 NEITHER VIVI NOR AUTHORISED RESELLER SHALL BE IN ANY EVENT BY LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF ANY OBLIGATIONS HEREUNDER. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.
9.3 IN NO EVENT SHALL VIVI OR AUTHORISED RESELLER’S COMBINED TOTAL LIABILITY ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON REACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNT OF FEES PAID BY SUBSCRIBER IN THE 12 MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM.
9.4 Each party (the “Indemnifying Party”) shall indemnify the other party (the “Indemnified Party”) against any claims of loss, damage, cost or expense by a third party against the Indemnified Party due to any action or omission of the Indemnifying Party related to this Agreement.
10. Miscellaneous
10.1 The parties are independent contractors and nothing in this Agreement shall be deemed to create the relationship of partners, joint venturers, employer-employee, master-servant, or franchisor-franchisee between the parties. Neither party is, or will hold itself out to be, an agent of the other party. Neither party is authorised to enter into any contractual commitment on behalf of the other party. There are no third-party beneficiaries to this Agreement. Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes.
10.2 These Terms and Conditions, contain the entire agreement of the parties and supersedes any prior or present understanding or communications regarding its subject matter, and may only be amended in a writing signed by both parties. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect.
10.3 Neither party shall assign this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to its successor pursuant to a merger, consolidation or sale of substantially all of its assets related to this Agreement, provided it promptly notifies the non-assigning party in writing of the assignment and the assignee agrees in writing to be bound by the terms of this Agreement. The law governing this Agreement will be the law of the state where Subscriber is located without reference to conflicts of law principles. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in such state.
10.4 The signature of your representative below shall constitute the formation of a binding agreement between the parties named in this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original.