By signing your Quote, you are agreeing to the listed Customer Terms & Conditions.
Please review the Customer Terms & Conditions based on the Product name on your quote.
VIVI
Customer Agreement
This Customer Agreement is made between Vivi LLC (“Vivi”), and the customer identified on an Order Form (“Customer”) (each, a “Party” and collectively, the “Parties”). The documents consist of this Customer Agreement, any Order Form, and any attachments or exhibits thereto, which together describe and set forth the general legal terms governing the relationship between the Parties (collectively, the “Agreement”).
This Agreement is effective between Customer and Vivi as of the date the Customer accepts this Agreement by executing an Order Form that references this Agreement (“Effective Date”). If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such company or entity to this Agreement, in which case Customer shall refer to such entity.
RECITALS
WHEREAS, Vivi is the owner and developer of the Vivi Solution; and
WHEREAS, Customer wishes to acquire, and Vivi wishes to supply to Customer the Vivi Solution to facilitate the Customer’s offering of educational content to end users, in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration of the mutual covenants and promises herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this Section, or in the Section where they are first used.
1.1. “Authorized User” means any individual who is authorized by Customer to access the Vivi Solution pursuant to Customer’s rights under this Agreement, such as employees, contractors, or end users.
1.2. “Customer Content” means any content, data and information provided or submitted by, or on behalf of, Customer or its Authorized Users, for use in connection with the Vivi Solution.
1.3. “DPA” has the meaning given in Section 6.1.
1.4. “Fees” has the meaning given in Section 3.1.
1.5. “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
1.6. “Order Form(s)” means Vivi’s standard order form referencing this Agreement which specifies the subscription package for the Vivi Solution and the applicable Fees, as executed by both Parties. Except as specifically provided here in, in the event of a conflict between the terms and conditions of this Agreement and the terms of an Order Form, the terms of the Order Form will prevail.
1.7. “Personal Data” means any information provided to Vivi by Customer that is protected as “personal data,” “personal information,” “personally identifiable information” or similar term defined in the Data Protection Legislation (as defined in the DPA), except that Personal Data does not include the contact information pertaining to Customer’s personnel or representatives who are business contacts of Customer (where Vivi acts as a controller of such information).
1.8. “Renewal Term” has the meaning given in Section 4.1.
1.9. “Vivi Hardware” means Vivi’s wireless receiver enabling a variety of devices to share displays of digital content in real time.
1.10. “Vivi Solution” comprises Vivi’s embedded software and cloud-based platform which facilitates 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://admin.vivi.io, and as otherwise described in an Order Form.
2. VIVI SOLUTION.
2.1. Access. Subject to the terms and conditions of this Agreement, Vivi will provide Customer with access to the Vivi Solution for the subscription package specified in the Order Form. On or as soon as reasonably practicable after the Effective Date, Vivi will provide to Customer the necessary access protocols to allow Customer and its Authorized Users to access the Vivi Solution. Customer will prevent unauthorized access to, or use of, the Vivi Solution, and notify Vivi promptly of any such unauthorized use known to Customer. Customer is responsible for managing its Authorized Users’ access to the Vivi Solution, including by immediately notifying Vivi if someone’s status as an Authorized User has ceased or otherwise should be revoked.
2.2. License Grant. Subject to the terms and conditions of this Agreement, Vivi grants to Customer a non-exclusive, non-transferable (except as permitted under Section 11.4) license during the Term (as defined below) to access and use, and for the Authorized User’s to access and use, the Vivi Solution during the Term solely for Customer’s internal business purposes. All rights not expressly granted to Customer in this Agreement are reserved by Vivi.
2.3. Restrictions. The Vivi Solution, together with any related software, technology, algorithms, processes, designs, hierarchies, user interfaces and any Intellectual Property Rights related thereto or embodied therein, as well as any improvements or modifications to the foregoing, are the exclusive property and Confidential Information of Vivi. Customer will not, and will not permit any Authorized User or other third party to: (a) allow any third party to access the Vivi Solution, except as expressly allowed in Order Form; (b) modify, adapt, alter or translate the Vivi Solution; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Vivi Solution for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Vivi Solution, except as permitted by law; (e) interfere in any manner with the operation of the Vivi Solution; (f) modify, copy or make derivative works based on any part of the Vivi Solution; (g) access or use the Vivi Solution to build, improve or enhance a similar or competitive product or service; (h) attempt to access the Vivi Solution through any unapproved interface; or (i) otherwise use the Vivi Solution in any manner inconsistent with applicable law.
2.4. Necessary Equipment. Customer must provide all equipment and software necessary to connect to the Vivi Solution, including but not limited to, sufficient bandwidth to access the Vivi Solution. Customer is solely responsible for any fees, including internet connection fees, that Customer incurs when accessing the Vivi Solution.
2.5. Education Laws Applicable to Customer. Customer agrees to comply with applicable laws, regulations and requirements of the State or Federal governmental agencies and accrediting bodies of the relevant jurisdictions that relate to Customer’s offering and delivery of courses and content using products, services or technology provided by Vivi.
2.6. Vivi Hardware. The Vivi Hardware is leased, not sold, to Customer. If there is any material defect or error occurring to the Vivi Hardware during the Term, Vivi shall repair and replace such Vivi Hardware. However, Customer agrees that it is responsible for maintaining the Vivi Hardware in good operating and working condition (excluding normal wear and tear) in accordance with any documentation provided by Vivi and to keep it secure from unauthorized access or theft. Customer shall have full liability for loss or damage to, or theft of, the Vivi Hardware that is caused by a breach of the foregoing conditions. Customer shall not pledge, sublease or in any manner deliver, transfer or otherwise relinquish possession of any of the Vivi Hardware, nor permit to exist any mortgage, security interest, lien, encumbrance or claim against the Vivi Hardware and will promptly, at its own expense, take such action as may be necessary to discharge any such mortgage, security interest, lien, encumbrance or claim against the Vivi Hardware, title thereto, or any interest therein, if it arises. 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 $50 per unit (plus additional shipping costs). Such fees shall be reflected in the applicable invoice.
2.7. Support Services. During the Term, Vivi shall provide support for the use of the Vivi Solution to Customer, including to keep the Vivi Solution operational and available to Customer, in each case in accordance with its standard policies and procedures. Vivi’s sole obligation, and Customer’s sole remedy, for any failure to provide the support shall be Vivi re-performing the support services in a conforming manner. Vivi’s obligation to support shall not apply to errors or failures that arise, in whole or in part, from: (w) any use of the Vivi Solution not in accordance with this Agreement or as specified in any documentation, including any breach of Section 2.6 (Vivi Hardware); (x) any use of the Vivi Solution in combination with other products, equipment, software or data not supplied by Vivi; or (y) any unauthorized modification of the Vivi Solution by any person other than Vivi or its authorized agents.
3. PAYMENTS.
3.1. Fees. In consideration for the access rights to Vivi Solution granted to Customer under this Agreement, Vivi will be paid the fees as set forth in the Order Form (“Fees”). Vivi may revise the applicable Fees payable for a given Renewal Term by providing at least thirty (30) days’ notice prior to the conclusion of the then-current term. Except as otherwise provided in Order Form, payment obligations are non-cancellable and all amounts paid are nonrefundable except as otherwise agreed by Vivi.
3.2. Payments. Except as otherwise provided in an Order Form, all Fees are billed at the beginning of the Term, and due and payable within thirty (30) days of the date of the invoice. Vivi reserves the right (in addition to any other rights or remedies Vivi may have) to discontinue the Vivi Solution and suspend all Authorized Users’ and Customer’s access to the Vivi Solution if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
3.3. Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Vivi’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Vivi Solution, or the license of the Vivi Solution to Customer. Customer will make all payments of Fees to Vivi free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Vivi will be Customer’s sole responsibility, and Customer will provide Vivi with official receipts issued by the appropriate taxing authority, or such other evidence as the Vivi may reasonably request, to establish that such taxes have been paid.
4. TERM AND TERMINATION.
4.1. Term. Notwithstanding anything to the contrary in Order Form, this Agreement will begin on the Effective Date and continue in full force and effect for duration stated in the Order Form (including any applicable Renewal Term), unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order Form, the initial term of an Order Form will begin on the effective date of the Order Form and continue in full force and effect for three (3) years (“Initial Term”), unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year (each a “Renewal Term”) unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days prior to the expiration of the then-current term. For clarity, the Customer will be responsible for the costs, if any, associated with the return of goods to Vivi.
4.2. Termination for Breach. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. In the event that Vivi terminates for Customer’s breach, all amounts owing for the remainder of the Term shall become immediately due and payable by Customer.
4.3. Termination by Vivi. Vivi may at any time terminate this Agreement, if: (a) Vivi is required to do so by law (for example, where the provision of the Vivi Solution to Customer is, or becomes, unlawful); or (b) Vivi has elected to discontinue the Vivi Solution (or any part thereof).
4.4. Effect of Termination; Survival. Upon termination or expiration of this Agreement for any reason, Customer’s use of and rights to the Vivi Solution shall cease and any amounts owed to Vivi under this Agreement will become immediately due and payable. Sections 1 (Definitions), 2.3 (Restrictions), 3 (Payments), 4.4 (Effect of Termination; Survival), 5 (Confidentiality), 7 (Intellectual Property Rights), 8.4 (Disclaimer), 9 (Limitation of Liability), 10 (Indemnification) and 11 (General) will survive expiration or termination of this Agreement.
5. CONFIDENTIALITY.
5.1. Confidential Information. “Confidential Information” means any nonpublic information of a Party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving Party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party.
5.2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a reasonable need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Vivi). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.
5.3. Exceptions. The confidentiality obligations set forth in Section 5.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
6. DATA SECURITY.
6.1. Data Processing Addendum. The Parties agree that each will comply with their respective obligations as required under the Data Processing Addendum (“DPA”), which is incorporated into and forms part of this Agreement. To the extent that the Customer Content contains Personal Data, Vivi shall treat such data in accordance with the DPA. Customer shall comply with its obligations under the DPA.
6.2. Education Records. Without limiting the foregoing or the obligations of each Party under the DPA, if applicable, each Party shall comply in all material respects with applicable laws and rules, including applicable requirements of the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its implementing regulations, 34 C.F.R. Part 99 (together, “FERPA”). If and to the extent Vivi has access to “Education Records” and “Personally Identifiable Information” (as those terms are defined in 34 C.F.R. § 99.3) in connection with its provision of the Vivi Solution: (a) Customer agrees that Vivi has met the criteria for being a “School Official” with “Legitimate Educational Interests” (as those terms are used under FERPA) in such Education Records and Personally Identifiable Information; and (b) Vivi agrees that such Education Records and Personally Identifiable Information will be used only for authorized purposes under this Agreement, and it will not redisclose such Education Records or Personally Identifiable Information except with authorization from the Customer and such redisclosure is otherwise permitted under FERPA.
6.3. Personal Information Collected from Children. Without limiting the foregoing or the obligations of each Party under the DPA, to the extent Vivi processes Personal Data (as such capitalized terms are defined in the DPA) of a child (including “children” as defined under the Children’s Online Privacy Protection Act, 15 U.S.C. § 6501, et seq., and its applicable implementing regulations, 16 C.F.R. Part 312) (together, “COPPA”) and any similar terms under any other applicable privacy laws in connection with its provision of the Vivi Solution, (a) Vivi agrees to limit its use of such Personal Data to the purposes authorized under this Agreement, and (b) the Customer represents and warrants that it has provided all required notices and obtained all required consents, including parental consents, necessary for Vivi to provide the Vivi Solution under this Agreement.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1. Vivi Solution. This Agreement does not grant to Customer any ownership interest in the Vivi Solution. The Vivi Solution is proprietary to Vivi and/or its licensors, and Vivi retains all right, title and interest in and to the Vivi Solution, including all Intellectual Property Rights therein. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Vivi Solution, including any right to obtain possession of any source code, data or other technical material relating to the Vivi Solution. All rights not expressly granted to Customer are reserved to Vivi. Vivi may create or generate general performance and usage data generated or collected through or in connection with Customer’s, and its Authorized User’s, use of the Vivi Solution (such as technical logs, account and login data, processed volumes) to operate, improve, analyze, and support the Vivi Solution.
7.2. Customer License; Ownership. The Customer Content, and Customer’s Confidential Information, and all worldwide Intellectual Property Rights therein, are the exclusive property of Customer. All rights in and to the Customer Content and Customer’s Confidential Information not expressly granted to Vivi in this Agreement are reserved by Customer. Customer grants Vivi a non-exclusive, worldwide, royalty-free and fully paid license during the Term to process the Customer Content solely as necessary for purposes of providing and improving Vivi Solution. Customer acknowledges that Vivi may use usage and performance data to improve the product.
7.3. Feedback. Customer hereby grants Vivi a perpetual, irrevocable, royalty-free and fully paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any Authorized User related to the Vivi Solution, including for the purpose of improving and enhancing the Vivi Solution.
8. WARRANTIES AND DISCLAIMERS.
8.1. Mutual Warranties. Each Party represents and warrants the following: (a) that it is duly incorporated, validly existing and in good standing under the laws of its state of incorporation; (b) that it has the full power and authority to consent to and perform this Agreement; and (c) this Agreement has been duly and validly executed and constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
8.2. Vivi Warranties. Vivi represents and warrants to Customer that, subject to Customer complying with this Agreement, the Vivi Solution will operate free from material errors during the Term. Vivi’s sole obligation, and Customer’s sole remedy, with respect to a breach of this warranty shall be the performance of the support and maintenance obligations specified in Sections 2.6 (Vivi Hardware) and 2.7 (Support Services).
8.3. Customer Warranties. Customer represents and warrants that: (a) it has procured all applicable rights and consents required to use the Customer Content in connection with the Vivi Solution; (b) the Customer Content will not: (i) infringe or misappropriate any third party’s Intellectual Property Rights; (ii) be deceptive, defamatory, obscene, pornographic or unlawful; or (iii) contain any viruses, worms or other malicious computer programming codes intended to damage the Vivi Solution; and (c) it shall use the Vivi Solution, and provide Customer Content in connection therewith, in compliance with all applicable laws, ordinances, regulations, and statutes.
8.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8 (DISCLAIMER), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE VIVI SOLUTION, THE SUPPORT SERVICES AND ASSOCIATED DOCUMENTATION ARE PROVIDED “AS IS,” AND VIVI MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. VIVI DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE VIVI SOLUTION SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES VIVI GUARANTEE ANY SPECIFIC RESULTS IN CONNECTION WITH USE OF THE VIVI SOLUTION. VIVI SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY OR ITS PRODUCTS OR SERVICES.
9. LIMITATION OF LIABILITY
9.1. prTypes of Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OF SUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, IMPACT OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.2. Amount of Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM LIABILITY OF VIVI ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO VIVI IN CONNECTION WITH THE VIVI SOLUTION DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE VIVI’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
9.3. Basis of the Bargain. The Parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.
10. INDEMNIFICATION.
10.1. By Vivi. Vivi will defend at its expense any claim, action or suit brought against Customer (including reimbursement of Customer’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Vivi makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party alleging that the Vivi Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws within the United States of America. Notwithstanding the foregoing, Vivi will have no obligation under this Section or otherwise with respect to any infringement claim based upon: (a) any use of the Vivi Solution not in accordance with this Agreement; or (b) any use of the Vivi Solution in combination with other products, services, software or data not supplied by Vivi. This indemnification is Vivi’s sole obligation, and Customer’s sole remedy, with respect to any infringement of third party Intellectual Property Rights.
10.2. By Customer. Customer will defend at its expense any claim, action or suit brought against Vivi (including reimbursement of Vivi’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit arising out of or relating to: (a) a breach by Customer of its representations and warranties contained herein; or (b) the Customer Content.
10.3. Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified Party will promptly notify the indemnifying Party in writing of any threatened or actual claim or suit; (b) the indemnifying Party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified Party will cooperate with the indemnifying Party to facilitate the settlement or defense of any claim or suit.
11. GENERAL.
11.1. Entire Agreement. This Agreement, together with the DPA and any Order Form, is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matters. To the extent of any inconsistency between the terms of an Order Form or this Agreement, this Agreement shall govern unless the Order Form specifically states it supersedes the Agreement. To the extent that there is any inconsistency between the terms of this Agreement and the DPA, the DPA will prevail to the extent of such inconsistency. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Vivi.
11.2. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The Parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts for Delaware for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.3. Export and Foreign Use. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Vivi, or any products utilizing such data, in violation of the United States export laws or regulations. Vivi make no representation that the Vivi Solution is appropriate or available for use in locations other than the United States and, if Customer uses the Vivi Solution from outside the United States, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
11.4. Publicity. Vivi may use Customer’s name and logo in its customer list (including on Vivi’s website, social media and in sales and marketing materials) in the same manner in which it uses the names of its other customers. Vivi shall use Customer’s name and logo in accordance with Customer’s applicable branding guidelines and Vivi may not use Customer’s name in any other way without Customer’s prior written consent (with email consent deemed sufficient).
11.5. Severability; Waiver. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.6. Assignment. Customer will not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Vivi, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Vivi may freely assign its rights or obligations under this Agreement. Vivi may subcontract the performance of its obligations under this Agreement provided that Vivi shall remain responsible for the performance of the subcontractor. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns.
11.7. Force Majeure. Any delay in the performance of any duties or obligations of Vivi will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, telecommunication or internet delays or failures, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of Vivi, provided that Vivi uses reasonable efforts, under the circumstances, to notify Customer of the cause of such delay and to resume performance as soon as possible.
11.8. Independent Contractors. Customer’s relationship to Vivi is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Vivi.
11.9. Notices. All notices required or permitted under this agreement must be delivered in writing, if to Vivi, by emailing finance@vivi.io and if to Customer, by emailing the contact details specified on the Order Form, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other Party at the address provided, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each Party may change its email address and/or address for receipt of notice by giving notice to the other Party.
11.10. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
11.11. U.S. Government Restricted Rights. If Customer is a government end user, then this provision also applies to Customer. The software contained within the Vivi Solution and provided in connection with this Agreement has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227- 7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.