VIVI
Vivi International Pty Ltd ACN603 692 388 and wholly owned subsidiaries
END USER LICENCE AGREEMENT
AND
TERMS OF SERVICE
INTRODUCTION
• Vivi International Pty Ltd ACN 603 692 388 has a wireless presentation software solution which enables mobile devices to screen mirror content to displays wirelessly and in real time. (Vivi Receiver).
• These Terms of Service set out terms and conditions applicable to the Vivi Receiver and under which Users may license the software embedded with the Vivi Receiver and the Vivi System.
IMPORTANT TERMS
1. KEY DEFINITIONS
The following terms are used regularly throughout these Terms of Service and have a particular meaning (additional definitions are found in the General Conditions):
a. Agreement means this Licence and Terms of Service.
b. Company means Vivi International Pty Ltd ACN 603 692 388.
c. Fee means any fee payable by a Licensee for access to, or use of the Vivi System.
d. Licensee means the organisation that is the licensee of the Vivi System.
e. Privacy Policy means Vivi’s privacy policy as updated from time-to-time, which can be found at https://www.vivi.io/privacy-policy
f. Staff User means a member of the Licensee’s staff that uses the Vivi System.
g. Student User means a student that uses the Vivi System.
h. Third Party means any person that is not a User.
i. User means a Licensee, Staff User or Student User.
j. Vivi Client mean the application accessible from http://get.vivi.io and also from various online mobile stores.
k. Vivi System means the system provided by Vivi, comprising:
i. The Vivi Receiver;
ii. The Vivi Software; and
iii. The Vivi Client.
2. AGREEMENT
a. This Agreement governs the use of the Vivi System by any User and limits the liability of the Company to any User. This Agreement has specific terms of use (in addition to the General Conditions) that apply to:
i. Licensees (Item C)
ii. Staff Users (Item D)
iii. Student Users (Item E)
b. In addition to any other express or implied consents, by using the Vivi System the User accepts and agrees to the terms of:
i. This Agreement; and
ii. The Privacy Policy.
3. LICENSEE TERMS OF USE
a. The Licensee may grant Staff Users and Student Users access to the Vivi System.
b. The Vivi System may be used to reproduce and share materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which the User owns the copyright, or materials the User is authorised or legally permitted to reproduce.
c. The Licensee agrees that it shall only use the Vivi System for legal purposes and shall not use it to engage any conduct that:
i. is unlawful, immoral, threatening, abusive;
ii. breaches the rights of any person, including the Intellectual Property Rights; or
iii. is deemed unreasonable by the Company in its discretion.
d. The Licensee agrees and warrants that:
i. The Licensee must pay applicable licence Fees for each Vivi Receiver, except for the limited version explicitly designated as free by the Company.
ii. The Vivi System may be hosted on servers located outside Australia and may also use email servers located outside of Australia. Such services may host or transmit User Content.
iii. The Licensee must ensure that its own privacy policy and other statements about how it handles the information of individuals are accurate in respect of Users’ use of the Vivi System.
iv. The Licensee uses the Vivi System at its own risk. To the extent permitted by law, under no circumstance will the Company be liable for any injury, illness, death or damage to property resulting from the use of the Vivi System.
v. To the extent permitted by law, the Company accepts no liability for the accuracy of any information made available using the Vivi System. Any reliance on the information available through the Vivi System is at the Licensee’s own risk.
vi. To the extent permitted by law the Licensee indemnifies and will hold the Company harmless against all costs, claims damages and expenses for any:
1. Penalty imposed upon the Licensee;
2. Injury, illness or death caused to an User or Third Party;
3. Damage to the property of any User or Third Party;
4. Claim of infringement of Intellectual Property Rights made by User or a Third Party;
5. Claim of breach of confidentiality by a User or any Third Party, as a result of any User’s use of the Vivi System.
4. STAFF USER TERMS OF USE
a. A Staff User’s access to the Vivi System may be created, limited and cancelled by the Licensee at any time at their discretion.
b. Any person who registers as a Staff User in the Vivi System warrants that he or she is authorised to do so by the Licensee.
c. The Vivi System may be used to reproduce and share materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which the User owns the copyright, or materials the User is authorised or legally permitted to reproduce.
d. The Staff User agrees that it shall only use the Vivi System for legal purposes and shall not use it to engage any conduct that:
i. is unlawful, immoral, threatening, abusive;
ii. breaches the rights of any person, including the Intellectual Property Rights; or
iii. is deemed unreasonable by the Company in its discretion.
e. The Staff User agrees and accepts that:
i. The Staff User uses the Vivi System at its own risk. To the extent permitted by law, under no circumstance will the Company be liable for any injury, illness, death or damage to property resulting from the use of the Vivi System.
ii. Any claim based on injury, illness, death or damage to property that results from a Staff User’s use of the Vivi System must be directed to the Licensee.
iii. To the extent permitted by law, the Company accepts no liability for the accuracy of any information made available using the Vivi System. Any reliance on the information available through the Vivi System is at the Staff User’s own risk.
iv. The Staff User indemnifies the Company against all costs, claims damages and expenses for any injury or damage caused to the person or property of a Third Party as a result of the Staff User’s use of the Vivi System;
v. The Vivi System may be hosted on servers located outside Australia and may also use email servers located outside of Australia. Such services may host or transmit a Staff User’s User Content.
5. STUDENT USER TERMS OF USE
a. A Student User’s access to the Vivi System may be created, limited and/or cancelled by a Staff User or the Licensee at any time at their discretion.
b. The Vivi System may be used to reproduce and share materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which the User owns the copyright, or materials the User is authorised or legally permitted to reproduce.
c. The Student User agrees that it shall only use the Vivi System for legal purposes and shall not use it to engage any conduct that:
i. is unlawful, immoral, threatening, abusive;
ii. breaches the rights of any person, including the Intellectual Property Rights; or
iii. is deemed unreasonable by the Company in its discretion.
d. The Student User agrees and accepts that:
i. The Student User uses the Vivi System at its own risk. To the extent permitted by law, under no circumstance will the Company be liable for any injury, illness, death or damage to property resulting from the use of the Vivi System.
ii. Any claim based on injury, illness, death or damage to property that results from an Individual’s use of the Vivi System must be directed to the Licensee.
iii. To the extent permitted by law, the Company accepts no liability for the accuracy of any information made available using the Vivi System. Any reliance on the information available through the Vivi System is at the Student User’s own risk.
iv. The Student User indemnifies the Company against all costs, claims damages and expenses for any injury or damage caused to the person or property of a Third Party as a result of the Student User’s use of the Vivi System;
v. The Vivi System may be hosted on servers located outside Australia and may also use email servers located outside of Australia. Such services may host or transmit a Student User’s User Content.
6. FEES
a. Fees apply as advertised to the use of Vivi, and the terms of those Fees are set out in the General Conditions.
b. Where a Fee is paid for a particular term of access to the Vivi System, the Licensee shall not be entitled to a pro-rata refund of any Fees if it elects to stop using the Vivi System within that term.
7. TERM & LIMITATIONS
a. Term.
b. Limitations on Use.
The Company may limit or restrict access to the Vivi System from time-to-time as it sees fit, including (but not limited to):
i. Entities. The Company may restrict access only to reputable and/or registered organisations; and
ii. Location. The Company may restrict access to the Vivi System to certain jurisdictions where it is able to offer the Vivi System.
8. TERMINATION
a. This Agreement may be terminated at any time by:
i. Written notice of one party to the other; or
ii. By cancelling or otherwise terminating an account through the Vivi Client.
9. DISCLAIMER – THIRD PARTY INFORMATION & SERVICES
a. The User acknowledges that the Vivi System:
i. Is dependent on third-party services, including but not limited to:
ii. Internet services;
iii. A main display in the relevant learning space with a HDMI input;
iv. A robust wireless network;
v. Hosting services;
vi. Analytics services.
vii. May provide links to third party websites.
vii. Uses feedback gathering services in order to ask users to rate their satisfaction with the platform. Response is optional and allows Vivi to ensure we're better able to understand our users' needs.
b. The User agrees that the Company shall not be responsible or liable in any way for:
i. Interruptions to the availability of the Vivi System due to third-party services; or
ii. Information contained on any linked third-party website.
GENERAL CONDITIONS
1. INTERPRETATION
a. The following definitions apply in this document:
i. Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City set out in item K of the Important Terms.
b. Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:
i. All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
ii. All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;
iii. The party's policies and procedures; and
iv. But excludes information that the other party can establish:
v. Is known by or is in the other party's possession or control other than through a breach of this document and is not subject to any obligation of confidence; or
vi. Is in the public domain other than by a breach of this document or any obligations of confidence.
c. Corporations Act means the Corporations Act 2001 (Cth).
d. Fees mean the fees and charges as set out in the Important Terms.
e. General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
f. Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
g. Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
h. Moral Rights means:
i. Moral rights pursuant to the Copyright Act 1968 (Cth);
ii. Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
i. Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
j. Pricing means the pricing as notified to the User in writing by the Company from time-to-time.
k. Privacy Act means the Privacy Act 1989 (Cth).
l. Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
m. User Content means data that is shared, uploaded or input into Vivi by a User or that forms part of the User’s Intellectual Property.
2. APPLICATION OF THIS AGREEMENT
a. This Agreement applies to access to and use of the Vivi System.
b. Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using the Vivi System.
c. This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of the Vivi System at the User’s next login after the User receives written notice of the update(s).
3. THE VIVI SYSTEM
a. The Vivi System is the product described in the Important Terms.
b. Vivi is only accessible to the User for the term set out in the Important Terms.
c. The User agrees and accepts that the Vivi System is managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to the Vivi System is available to the User.
d. The Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Vivi System.
e. The Company shall not exercise its rights under clause 3.4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of the Vivi System to the User, other than in accordance with the terms of this Agreement.
4. VIVI RECEIVER WARRANTY & DISCLAIMER
a. The Vivi Receiver is warranted against defects in materials and workmanship for a period of 12 months from the date of original retail purchase (Warranty Period) when used in accordance with the Vivi Receiver user manuals.
b. If a defect arises during the Warranty Period, the Company, at its option will:
i. Repair the Vivi Receiver at no charge using new parts or parts that are equivalent to new in performance and reliability; or
ii. Refund the original purchase price.
c. Where it is not lawful or possible to exclude conditions, warranties, or rights implied or given in respect of this Agreement by the Competition and Consumer Act 2010 or other laws, the Company’s liability for any breach of such implied conditions, warranties or rights will (but only to the extent allowed by law) be limited (at the Company’s option):
i. In the case of goods supplied, to the replacement or repair of the goods or the supply of equivalent goods, the payment of the cost of repairing or replacing the goods or acquiring the equivalent goods;
ii. In the case of services supplied, to the supplying of the services again or the payment of the cost of having the services supplied again.
All other implied conditions, warranties and rights, together with any implied by custom or other circumstances, are excluded.
d. For the software-only version without a hardware receiver, the Licensee acknowledges and agrees that this version is exempt from the warranty provisions related to the Vivi Receiver as described in this clause.
e. All goods shall be the sole risk of the Customer in all respects from the date of delivery to the Licensee or agent or carrier acting on the Licensee’s behalf.
f. Responsibility will not be accepted for equipment loss or damage due to any or all of the following:
i. Grid related issues, including voltage issues.
ii. Storm or tempest;
iii. Atmospheric electrical discharges;
iv. Flooding or water damage, however caused;
v. Lack of, or improper, maintenance;
vi. Unauthorised repair, modification or additions;
vii. Connection of equipment not in compliance with specifications; and
viii. Faulty operation.
5. LICENSE
a. By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use the Vivi Software and the Vivi System for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
b. The Company, at its discretion, may make available future updates to the Vivi Software and/or the Vivi System. Such updates, if any, may not necessarily include all existing software features. The terms of this Agreement will govern any software upgrades provided by the Company that replace and/or supplement the original Vivi Software or Vivi System, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
c. The Company may revoke or suspend a User’s license in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
6. SUPPORT
a. The Company provides user support for Vivi via a dedicated support email.
b. The Company shall endeavour to respond to all support requests within 24 hours.
c. The Company reserves the right to require the payment of reasonable Fees for non-standard support requests prior to the provision of such support.
7. AUTHORISED USERS
a. The User is solely responsible for the security of its username and password for access to Vivi.
b. The User shall not allow any Third Party to access Vivi. The Company accepts no liability for data that is shared, uploaded or input into Vivi by any Third Party, including any Third-Party using login details of a User.
c. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Vivi account.
8. USER CONTENT
a. The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
b. The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
c. Despite clause 8.1 the Company shall be authorised to permanently disable access to the Vivi System where outstanding Fees remain unpaid in accordance with clauses 10 and 11.
d. The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for the Vivi System).
9. PRIVACY
a. The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the User and other customers.
b. The Company also complies with the Family Educational Rights and Privacy Data (“FERPA”) and the Children’s Online Privacy Protection Act (“COPPA”).
c. Vivi takes the privacy of Student Users very seriously. Vivi shall not contact Student User’s other than to verify their initial registration via the Vivi Client, to process lost/reset password requests or to send notifications initiated via a Staff User. Such contact with Student Users shall be by via the Vivi Client or email only.
d. The Company does not intentionally collect personally identifiable information (“PII”) from Student Users.
e. Under COPPA, the Company is required to obtain consent to the collection of Student Data from children under 13. When an Education Licensee use the Vivi System, the Licensee is required to consent to the collection and use of Student Data.
f. By accepting this Agreement, the Licensee consents to collection and use of Student Data as described in the COPPA framework. The Licensee confirms is has authority to collect Student Data for the use and benefit of students in the educational context, and for no other commercial purpose.
g. The Privacy Policy does not apply to how the Licensee handles personal information. It is the Licensee’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.
10. FEES
a. The Licensee agrees to pay all Fees as and when they fall due and to the extent permissible by law. However, the use of the limited free version of the Vivi System, as designated by the Company, is exempt from Fees unless otherwise communicated by the Company.b. The Company may introduce new services with corresponding Fees by giving the Licensee written notice of their availability and applicability.
c. The Company shall notify the Licensee of any changes to existing Fees no less than 14 days before the end of the then current billing cycle.
d. The Company may revoke or suspend Users’ license to access to the Vivi System for unpaid Fees without liability.
e. No refunds of Fees are offered other than as specified in this Agreement or as required by law.
11. DATA
a. Security. The Company takes the security of the Vivi System and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
b. Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
c. Backup. The Company shall perform backups of the Vivi System in as reasonable manner at such times and intervals as are reasonable for its business purposes. Such back-ups do not include back-ups of any User Content and the User will be responsible for ensuring timely back-ups of its User Content.
12. ACCESS
a. By accepting the terms of this Agreement, the User agrees that the Company shall provide access to the Vivi System to the best of its abilities, however:
i. Access to the Vivi System may be prevented by issues outside of its control; and
ii. It accepts no responsibility for ongoing access to the Vivi System.
b. Under FERPA, an Education Licensee must provide a parent with an opportunity to inspect and review Student User data. Requests to review such data should be directed to the school administrator.
13. INTELLECTUAL PROPERTY
a. Trademarks. The Company has moral & registered rights in its trademarks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
b. Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of the Vivi System.
c. The Vivi System. The User agrees and accepts that the Vivi System is the Intellectual Property of the Company and the User further warrants that by using the Vivi System the User will not:
i. Copy the Vivi System or the services that it provides for the User’s own commercial purposes; and
ii. Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Vivi System or any documentation associated with it.
d. Content. All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, Exercises, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the Vivi System.
14. LIABILITY & INDEMNITY
a. The User agrees that it uses the Vivi System at its own risk.
b. The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
c. The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with the Vivi System, including any breach by the User of these Terms.
d. In no circumstances will the Company be liable for any direct, 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 the User’s access to, or use of, or inability to use the Vivi System or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
e. To the extent permitted by Law, the Company’s liability to all Users will be capped at an amount equal to the Fees paid by the Licensee in the previous 12 months.
END GENERAL CONDITIONS