US Terms & Conditions: Device Alerts

VIVI
Customer Agreement

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 Device Alert Software. By signing a quotation that references these terms, or by otherwise accessing or using the Vivi Device Alert Software, you agree to be bound by this Agreement.

1. Defined terms

1.1 Unless the context requires otherwise in this document the following terms have the following meanings;

(a) “Agreement” means this agreement, available at vivi.io/device-alerts/

(b) “Device Alert Software” means the software-only product owned and licensed by Vivi designed to facilitate the sending and receiving of emergency alerts within your designated environment, which is accessed via the Vivi application;

(c) “Fees” means the fees payable by you for the Subscription, as set out in a quotation or other commercial documentation;

(d) “Reseller” means, if applicable, an authorised reseller of the Device Alert Software, which may include a Vivi subsidiary or related entity that provides support or other local services;

(e) “Subscription” means the licence granted to you for the use of the Device Alert Software for the Subscription Term;

(f) “Subscription Term” means the fixed period of 1, 3, or 5 years for which you have purchased a Subscription, commencing on the date of activation and ending on the expiry of that period;

(g) “User” means each of you and your permitted staff and personnel, as the context permits; and

(h) “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 6.2(b) “we” means Vivi alone.

2. Licence

2.1 Subject to your payment of the Fees, Vivi grants you a limited, non-exclusive, non-transferable and revocable licence to access and use (and permit your Users to access and use) the Device Alert Software for the Subscription Term, subject to the terms and conditions of this Agreement.

3. Fees and payments

3.1 You agree to pay all Fees to Vivi or your Reseller, as directed. Fees are payable in advance for the entire Subscription Term.

3.2 All Fees are exclusive of any applicable federal, state, local, or other governmental sales, use, value-added, or similar taxes. You are responsible for the payment of all such taxes.

3.3 Fees paid for a Subscription are non-refundable, except as specified in this Agreement. We will not provide any refunds unless the Agreement is terminated pursuant to clauses 6.2(a)(i), 6.3, or 8.1, in which case you will be entitled to a pro-rata refund of any prepaid Fees corresponding to the unused portion of the Subscription Term.

3.4 We may revoke or suspend your access to the Device Alert Software (temporarily or permanently) due to unpaid Fees, without liability.

4. Use of the Device Alert Software and acknowledgments

4.1 You are responsible and liable for all activity occurring through your Subscription and all corresponding Fees and charges.

4.2 You must (and must procure that Users shall) only use the Device Alert Software for its intended purpose and for lawful purposes.

4.3 You acknowledge that the Device Alert Software is dependent on third-party goods and services which you must supply and maintain at your own cost and risk, including but not limited to a stable internet connection, a robust and properly configured wireless or wired network, and operational desktop computers.

4.4 You acknowledge, agree, and warrant that you understand the intended use and limitations of the Device Alert Software. By using the Device Alert Software, you explicitly acknowledge and agree that:

(a) the Device Alert Software is a communication tool, not a life-saving service. The Device Alert Software is solely a supplemental communication tool. It is not a life-saving device, a security system, or a comprehensive safety solution. We make no representation, warranty, or guarantee that the use of the software will prevent injury, death, or property damage;

(b) the Device Alert Software is not a substitute for emergency services. The Device Alert Software is not connected to and does not alert any police, fire, or other emergency services. You and your Users are solely responsible for contacting appropriate emergency responders in the event of an emergency. You must not rely on the software as a primary means of seeking help;

(c) the performance, reliability, and effectiveness of the Device Alert Software are entirely dependent on numerous factors outside of Vivi’s control. These include, but are not limited to, the availability and quality of your internet connection, the operational status of your network hardware and user devices, the presence of electrical power, and the attentiveness and actions of your Users; and

(d) you are solely responsible for developing and implementing your own emergency response procedures and for training your Users on those procedures and the proper use of the Device Alert Software.

5. Intellectual Property

5.1 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.

5.2 Vivi owns or has rights to use and license the use of the Device Alert Software and its elements to you. All content remains the intellectual property of Vivi and its licensors. You acknowledge that such is or may be protected by copyright, trade marks, 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 Device Alert Software. 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 Device Alert Software or any documentation associated with it.

6. Termination and cancellation

6.1 You may cancel your Subscription at any time by providing written notice. However, subject to clause 3.3, no refund will be provided for any remaining portion of your prepaid Subscription Term.

6.2 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 Device Alert Software) immediately by notice to you in writing if:

(i) we are unable to continue to provide the Device Alert Software 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;  or

(iv) you (as a company) undergo a change in control.

(b) If the events referred to in clauses 6.2(a)(i) or 6.2(a)(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 Reseller (including all rights to payments from you) (the “step-in rights”).

6.3 You may terminate this Agreement immediately by notice to us in writing if we are in breach of any material term of this Agreement and such breach is not capable of remedy or, if capable of remedy, is not remedied within 14 days of you sending us a notice to do so. If you terminate under this clause, you will be entitled to a pro-rata refund of any prepaid Fees corresponding to the unused portion of the Subscription Term as of the termination date.

6.4 When this Agreement ends, your licence to use the Device Alert Software ends.

7.  Liability & Indemnity

7.1 Disclaimer of Warranties. To the maximum extent permitted by law, the Device Alert Software is provided “as is” and “as available” without any warranties of any kind, either express, implied, or statutory. Vivi does not warrant that the software will be uninterrupted, error-free, or meet your requirements.

7.2  Limitation of Liability. To the extent permitted by law, you agree that you use the Device Alert Software at your own risk. In no circumstances will Vivi or its Resellers be liable for any injury, illness, death, or any incidental, consequential or indirect damages, loss of data, or loss of profits resulting from your or any Users’ access to, use of, or inability to use the Device Alert Software, particularly in an emergency situation. This limitation applies whether a claim is based on contract, tort, negligence, or any other legal theory, and whether or not Vivi knew or should have known of the possibility of such damage.

7.3  To the extent permitted by law, Vivi’s total aggregate liability to you under this Agreement will be capped at an amount equal to the Fees paid by you.

7.4  You must indemnify, defend, and hold harmless Vivi, its directors, employees, agents, and Resellers from and against any and all claims, losses, damages, costs, or expenses (including reasonable attorneys' fees) that they may suffer or incur as a result of or in connection with your and your Users’ use of the Device Alert Software. This includes, but is not limited to, any claims brought by any third party (such as a student, parent, guardian, employee, or emergency responder) arising from or relating to the performance or non-performance of the Device Alert Software during any event.

8. Miscellaneous

8.1 We may vary the terms of this Agreement from time to time by providing you with at least 30 days’ written notice (which may be by email). If you do not agree with a variation that is materially detrimental to you, you may terminate this Agreement by providing us with written notice before the date the variation takes effect. If you do not terminate before the variation takes effect, you will be deemed to have accepted the new terms.

8.2 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 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.

8.3 You may not assign your rights and obligations under this Agreement without our prior written consent.

8.4 Unless the context requires otherwise, the rights of Vivi and the Reseller are joint and several.

8.5 This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. The parties irrevocably agree to submit to the exclusive jurisdiction of the state and federal courts located in Wilmington, Delaware for any dispute arising out of this Agreement.

8.6 Your acceptance of a quotation or purchase order that references this Agreement, or your first use of the Device Alert Software (whichever is earlier), constitutes the formation of a binding agreement between the parties.