In this Agreement, unless the context requires otherwise, the following expressions shall have the following meanings:
Act: means the Privacy Act 1998.
Administrative User: means an employee, agent or officer of the Licensee who is authorised by the Licensee and by Vivo Rewards to access the Vivo Rewards System for the purpose of managing or administering the Reward Scheme.
Affiliate: means any company which is the parent undertaking, or a subsidiary undertaking of the Licensee, or any other subsidiary undertaking of the Licensee's parent undertaking from time to time and for this purpose "subsidiary undertaking" and "parent undertaking" shall have the meanings ascribed to them by the Companies Act 1985.
Agreement: means these terms and conditions, the Vivo Rewards Limited Licence Agreement and any authorised amendments, which shall be agreed in writing by both parties, to any of the foregoing.
Anniversary Date: means any anniversary of the Service Start Date.
Charges: means those fees set out in the Vivo Rewards Limited Licence Agreement, payable by the Licensee to Vivo Rewards in consideration of Vivo Rewards' grant of the Licence.
Confidential Information: means any information which is received by one party from the other party under, or in connection with, this Agreement and which is either marked as, or is manifestly, confidential including without limitation the Vivo Rewards Data.
Force Majeure Event: means any circumstances beyond a party's reasonable control, which shall include any telecommunications or network outages.
Inactivity: means that the relevant Subscriber has not logged into its Vivo account using its allocated password and username and has not redeemed any of its awarded Vivos for any goods or services via the Vivo Rewards' website.
Initial Term: means the initial term set out in the Vivo Rewards Limited Licence Agreement.
Intellectual Property Rights: means all present and future rights in patents, trademarks, designs, trade or business names, domain names, copyright, database rights, topography rights, rights in know-how, trade secrets, rights of confidence and any other intellectual property right, or right of a similar nature anywhere in the world, whether registered or unregistered, whether now known or hereafter invented and including applications for such rights and all extensions, renewals and reversions of such rights.
Licence: means the licence granted pursuant to this Agreement at Clause 3.4 by Vivo Rewards to the Licensee to use the Licensed Materials.
Licensed Materials: means the Vivo Rewards System, the Vivo Rewards Data and any other material associated with the Vivo Rewards System.
Licensee: means the entity as stated in the Vivo Rewards Limited License Agreement.
Licensee Contact: means the Licensee's nominated contact set out in the Vivo Rewards Limited Licence Agreement.
Licensee Data: means the data inputted onto the Vivo Rewards System by the Licensee or its Administrative Users (including the Licensee's activity reports and additional information inputted by the Licensee).
Licensee Product: has the meaning given to it in clause 7.9.
Licensee Systems: mean the computer systems operated by or for the Licensee and used in conjunction with the Vivo Rewards System.
Malicious Code: means viruses, worms, trojan horses, or any other contaminants that may be used to access and/or modify, delete or damage any data files or other computer programmes.
RRP: means the standard price of the Licence as set out in the Vivo Rewards Limited Licence Agreement.
Reward Scheme: means the closed-network reward scheme which is to be set up and managed by the Licensee, using the Licensed Materials.
Services: means the services that Vivo Rewards shall provide to the Licensee under the terms of this Agreement including the hosting and provision of the Licensee Materials to allow the Licensee to administer the Reward Scheme to Users.
Service Start Date: means the earlier of the date specified in the Vivo Rewards Limited Licence Agreement or the date that Vivo Rewards issues any User of the Licensee with a password to use the Vivo Rewards System.
Subscriber: means either (i) an individual nominated by the Licensee or (ii) an individual who has registered directly with Vivo Rewards to participate in the Wider Reward Scheme, who in each case is authorised by the Licensee to participate in the Reward Scheme and who is authorised by Vivo Rewards to access the Vivo Rewards System. For example, where the Licensee is an educational facility, a Subscriber shall be a student registered with the educational facility.
User: means either (i) an Administrative User; or (ii) a Subscriber.
Vivo Rewards: means the Vivo Rewards Limited, a company registered in England and Wales with registered number 07425899 whose principal place of business is at 47 Margaret Street, London, W1W 8SB.
Vivo Rewards Data: means all data and/or information stored in, created by, or processed as part of the Vivo Rewards System, or otherwise relating to the Reward Scheme, including, without limitation, all data and/or information inputted onto the Vivo Rewards System by Vivo Rewards or its employees, agents or officers or any Subscriber, and all other data and/or information relating to the Vivo Rewards System, other than the Licensee Data, but including any data created as a result of, or otherwise deriving from, any processing of the Licensee Data for the purposes of administering the Reward Scheme.
Vivo Rewards System: means the combined rewards database and contact management system developed and hosted by Vivo Rewards as may be more particularly specified in the Vivo Rewards Limited Licence Agreement, access to which shall be provided by Vivo Rewards to the Licensee pursuant to this Agreement.
Vivos: means the credits issued to the Licensee by Vivo Rewards in return for payment, which can be allocated to Subscribers as part of the Reward Scheme.
Wider Reward Scheme: means the open network reward scheme, hosted by Vivo Rewards, which will allow Subscribers, commercial sponsors and other participants to benefit from other third party schemes, goods and services.
Year: means a period of 12 months commencing on the Service Start Date or any Anniversary Date.
2.1 Vivo Rewards shall provide the Licensed Materials and the Services to the Licensee in accordance with the terms of this Agreement.
2.2 The Licensee acknowledges that it will not, whether directly or indirectly, resell, lease or deal with any of the Licensed Materials other than in accordance with this Agreement without Vivo Rewards' prior written consent.
2.3 This Agreement does not in any way limit Vivo Rewards' right at any time to sell, licence or otherwise supply services (whether or not similar to, or the same as, the services provided to the Licensee pursuant to this Agreement) directly or indirectly to any third party.
3.1 The Licensee hereby acknowledges that all Intellectual Property Rights in the Licensed Materials are owned by or licensed to Vivo Rewards. Nothing in this Agreement shall operate to transfer any Intellectual Property Rights in the Licensed Materials to the Licensee.
3.2 All Intellectual Property Rights in the Licensee Data are owned by or licensed to the Licensee. Nothing in this Agreement shall operate to transfer any Intellectual Property Rights in the Licensee Data, which shall remain vested in the Licensee or its licensors. The Licensee hereby grants to Vivo Rewards a non-exclusive licence to use the Licensee Data for the term of this Agreement for the purposes of Vivo Rewards‘ proper performance of its obligations under this Agreement.
3.3 In consideration of Vivo Rewards' grant of the Licence, the Licensee agrees to comply with the terms of this Agreement.
3.4 Vivo Rewards hereby grants to the Licensee a non-exclusive, non-transferable licence to use the Licensed Materials for the term of this Agreement.
3.5 Vivo Rewards reserves the right to modify, revise, amend or replace the format and/or content of the Licensed Materials from time to time (including the Vivo Rewards System) but shall, if possible, provide the Licensee with advance written notice of any such changes. If Vivo Rewards does so amend the format and/or content of the Licensed Materials, or does replace it, it shall attempt to ensure that there is no adverse change in the content, quality or performance of the Licensed Materials. Such changes may require Vivo Rewards Data and Licensee Data to be transferred from one software platform to another. Vivo Rewards shall endeavour to notify the Licensee in advance of any proposed data migration and Vivo Rewards shall use its reasonable endeavours to minimise any disruption to the Services during such periods.
3.6 Vivo Rewards reserves the right to suspend the Licensee's or a particular User's access to the Licensed Materials, or any of them, on becoming aware of any legal regulation, claim, or restriction which requires it to do so, or which may expose it to any liability or claim if it does not do so. In this situation, Vivo Rewards shall inform the Licensee in writing of such suspension of the Licensee or User's access. If such suspension continues for more than 30 days, the Licensee shall be immediately entitled to terminate this Agreement by notice in writing to Vivo Rewards. Vivo Rewards shall, in the event of termination under this Clause 3.6 and provided the Licensee is not at fault, without prejudice to any of the Licensee's other rights and remedies arising under this Agreement, refund to the Licensee any Charges paid on a pro-rata basis from the date on which the Service is suspended, up to and including the date on which termination of this Agreement takes effect, or the Service recommences (as the case may be).
3.7 At the Licensee's request, Vivo Rewards may agree to assist in integrating the Vivo Rewards System into the other Licensee Systems. Such work will be undertaken on the Licensee instructions and Vivo Rewards shall take reasonable steps to ensure that no Malicious Code is introduced into the Licensee Systems as a result of such integration work.
3.8 All Users must be notified to Vivo Rewards and allocated with a unique User name and password in accordance with clause 8 below, before they are entitled to access and make use of the Vivo Rewards System. In the event that any Subscriber ceases to be entitled to participate in the Reward Scheme, or if the Licensee wishes to replace any Administrative User, Vivo Rewards must be notified in writing. On receipt of such notice, Vivo Rewards shall immediately cancel the relevant User name(s) and password(s). Where the Licensee notifies Vivo Rewards that it has appointed a new Subscriber or Administrative User, Vivo Rewards shall issue to the new person a fresh User name and password to allow that person to gain access to the Service.
3.9 The Licensee shall be liable for any failure by its Users to comply with the terms of this Agreement.
3.10 Each User may use the Licensed Materials, provided that any and all Intellectual Property Rights shall remain with Vivo Rewards.
3.11 Save as expressly permitted hereunder and to the extent permitted by law, the Licensee shall not, without Vivo Rewards' prior written consent, copy, alter, vary or modify the Licensed Materials, or transfer use of the Licensed Materials to any third party, or in any way affect or infringe Vivo Rewards' Intellectual Property Rights, or enter into an arrangement, agreement or understanding which would, or might allow or encourage a third party to do so.
3.12 The Licensee shall promptly notify Vivo Rewards in the event that it becomes aware of any unauthorised use of the Vivo Rewards System, or any actual or suspected infringement of any of Vivo Rewards' Intellectual Property Rights.
3.13 Upon expiry or termination of this Agreement, the Licensee (including each individual Administrative User and Subscriber who has not become a subscriber to the Wider Rewards Scheme), shall forthwith discontinue the use of the Licensed Materials and within 14 days of expiry or termination of this Agreement deliver up (or, at Vivo Rewards' option, destroy) all copies of the Licensed Materials.
4.1 The Licensee must not use, or permit the use of, the Licensed Materials for any illegal, unlawful or unauthorised purpose, or so as to bring Vivo Rewards or its business, products, or the services provided by Vivo Rewards under this Agreement into disrepute.
4.2 Where access to the Licensed Materials is provided by means of an Internet or other telecommunications link, the Licensee shall be responsible for ensuring that the Licensee Systems are capable of accessing the Licensed Materials. Accordingly, Vivo Rewards shall not be responsible for any failure of the Licensee to access the Vivo Rewards System due to a failure of the Licensee Systems. Further, Vivo Rewards shall not be liable for any failure by Users to access the Licensed Materials as a result of a failure of a User's equipment, or events affecting access to the Internet generally (which prevent or delay the User accessing the Licensed Materials).
4.3 The Licensee shall not itself, or permit any third party to, knowingly or negligently upload, post, publish, transmit or transfer to the Vivo Rewards System any software, files or other material (including Malicious Code), which (a) is misleading, inaccurate, defamatory, illegal, obscene, threatening, deceptive, abusive, profane or offensive (or is likely to be perceived as such); (b) is in breach of any Intellectual Property Rights, or damaging to data, software or the performance of the Vivo Rewards System, or adversely affects the performance or availability of the Vivo Rewards System; (c) is in breach of any applicable law or regulation; (d) contains any unauthorised advertising, promotion or solicitation; or (e) materially misrepresents facts which may be damaging or injurious to Vivo Rewards or its subscribers or users. Vivo Rewards reserves the right to remove any such software, files or material which would contravene these prohibitions.
4.4 The Licensee may place information on the Vivo Rewards System only to the extent reasonably required for the purpose of receiving the benefit of the services provided under this Agreement.
4.5 Save as may be expressly stated otherwise, Vivo Rewards does not monitor, approve, endorse or exert editorial control over information posted by the Licensee, other licensee or third parties and, accordingly, Vivo Rewards gives no warranty, representation or undertaking in respect of such information. To the extent permitted by law, Vivo Rewards shall not be liable for any loss or damage suffered by the Licensee which arises out of, or in connection with such information.
4.6 The Licensee shall comply with all reasonable instructions as to the use of the Vivo Rewards System which may be given by Vivo Rewards to the Licensee from time to time in writing, or posted on the Vivo Rewards System from time to time and shall comply with all applicable laws in exercising its rights under this Agreement.
4.7 The Licensee hereby warrants that the information it provides upon registration, or at any time about itself, its Affiliates and Users, is true, accurate, current and complete and that it will ensure that this information is kept accurate and up to date at all times.
4.8 It is the Licensee's sole responsibility to put in place adequate precautions to prevent any unauthorised third party from gaining access to the Vivo Rewards System through the Licensee System, or through any usernames or passwords issued by that Licensee. It is the Licensee's responsibility to ensure that it has obtained a valid consent from each User who wishes to participate in the Reward Scheme (including any parental consent required), prior to the Licensee issuing any user names or passwords to such User, or permitting that User to access the Vivo Rewards System.
5.1 The rights and liabilities of the parties under this Agreement shall come into effect on the day that both parties sign the Agreement. Vivo Rewards shall provide the Services from the Services Start Date. Subject to earlier termination as contemplated herein, this Agreement shall continue for the Initial Term and shall thereafter renew automatically (unless terminated in accordance with this Agreement), for successive periods of one year.
5.2 In addition to any other right of termination which either party may have under this Agreement, either party may terminate this Agreement on the last day of the Initial Term, or any subsequent Anniversary Date, by serving written notice of termination to the other party at least 60 days prior to the last day of the Initial Term or the relevant Anniversary Date (as appropriate).
6.1 In consideration of Vivo Rewards' grant of the Licence, the Licensee shall pay the Charges annually in advance. Vivo Rewards will not supply the Licensed Materials until the Licensee has paid the Charges.
6.2 Invoices shall be issued on the date of this Agreement (for the Charges relating to the first Year), or prior to the relevant Anniversary Date (for the Charges relating to each subsequent Year).
6.3 All undisputed amounts due under this Agreement shall be due and payable 14 days after the date of the Licensee's receipt of the invoice. Vivo Rewards reserves the right to charge interest at the Bank of England base rate plus 2% per annum on any undisputed payments that are due and outstanding. In the event that the Licensee has a bona fide dispute in relation to all or any portion of an invoice, it shall notify Vivo Rewards of the dispute within fourteen (14) days of the date of the Licensee's receipt of the relevant invoice. The Licensee shall continue to pay the undisputed amount when it becomes due and payable in accordance with the terms of this Agreement and the parties shall continue to perform their respective obligations under this Agreement. Each party shall use its reasonable endeavors to resolve the dispute as soon as reasonably practicable.
6.4 Vivo Rewards reserves the right to suspend the performance of all or any of its obligations under this Agreement, while any undisputed amount payable under this Agreement is outstanding for more than 14 days after the due date for its payment or in the event that resolution of a disputed amount is not achieved within a reasonable time.
6.5 All prices quoted exclude Goods and Services Tax or any other applicable tax, which shall be added to any invoices at the then applicable rate.
6.6 Vivo Rewards shall be entitled to increase the Charges upon each Anniversary Date, after the Initial Term, in line with the RPI (Retail Price Index). Were the Licensee has been offered promotional rates for the Initial Term (as specified in the Vivo Rewards Limited Licence Agreement), Vivo Rewards shall be entitled to increase the Charges, after the Initial Term, in line with the RRP as specified in the Vivo Rewards Limited Licence Agreement and without notice.
6.7 Vivo Rewards shall be entitled to increase the Charges upon each Anniversary Date, after the Initial Term. Where Vivo Rewards chooses so to increase the Charges, it shall give the Licensee written notice of the amount by which the Charges are to be increased no less than 60 days prior to the relevant Anniversary Date. If such increased Charges are not acceptable to the Licensee, the Licensee shall be entitled to terminate this Agreement pursuant to clause 5, by written notice to Vivo Rewards with effect from the Anniversary Date on which such increase would have taken effect. If the Licensee does not so terminate this Agreement, the increased Charges shall take effect from the relevant Anniversary Date.
7.1 The Licensee shall purchase Vivo’s from Vivo Rewards for use exclusively on the Vivo Rewards System. One Vivo shall be purchased for one pence sterling, For example, one hundred Vivos shall be issued to the Licensee in return for one (£1 pound sterling = 100 Vivos). When a Licensee buys Vivos it is making an advance payment for both (i) goods and services for which Vivos can be redeemed by Subscribers in accordance with clause 7.2 and (ii) the associated services in relation to such purchased Vivos provided by Vivo Rewards as part of the Reward Scheme. The Licensee may, in its sole discretion, issue its Vivos to Subscribers. Within three days of receiving a request for Vivos from the Licensee, Vivo Rewards will issue those Vivos to the Licensee through the Vivo Rewards System. Having issued the Vivos, Vivo Rewards will send an invoice to the Licensee for payment for the Vivos. The invoice will be payable within 14 days of the date of receipt.
7.2 Vivos shall only be accepted as a means of payment by Vivo Rewards. Subject to clause 7.8, a Subscriber is entitled to use his / her Vivos to order products or services from the Vivo Rewards website, or to donate to charity. These products or services may be sent to the Subscriber by Vivo Rewards, or Vivo Rewards may send the Subscriber a voucher, issued by the relevant third party retailer, which may be exchanged for that third party for a product or service advertised on the Vivo Rewards website. Vivo Rewards does not make any representation, or give any warranty in relation to any third party's goods or services offered, or made available by Vivo Rewards via the Vivo Rewards Website.
7.3 If a Subscriber is no longer eligible to participate in the Reward Scheme or otherwise ceases to become a Subscriber for whatever reason, (for example where the Licensee is a school and a Subscriber is a student who leaves that school) then, any unspent Vivos will be converted to its cash value in the form of a leavers voucher. Which can be redeemed in the Vivo ME store www.vivomestore.com . Leaver’s vouchers are valid for 90 days post issuing. At this time the voucher becomes null and void. Leaver's vouchers will be sent electronically to the user's registered email address. If there is no registered email address for the user, the voucher will be sent to the school upon request.
7.4 If the Licensee validly terminates the Agreement after the Initial Term, then Vivo Rewards shall refund any Vivos to the Licensee that the Licensee has not rewarded to a Subscriber, provided that the Licensee requests the refund in writing from Vivo Rewards within 90 days of the termination of the Agreement and subject to the Licensee paying a handling fee equal to 5% of the amount to be refunded.
7.5 Subscribers are not allowed to transfer Vivos. Subscribers cannot redeem Vivos for money.
7.6 In addition to the other restrictions set out in this clause 7, where there has been Inactivity on a Subscriber's account for a continuous period of six months, Vivo Rewards reserves the right to cancel all unspent Vivos awarded to that Subscriber, in which case such Vivos will become null and void.
7.7 A Licensee may provide its own goods and services to Subscribers to be exchanged for Vivos via the Vivo Rewards' website ("Licensee Product"), subject to Vivo Rewards' prior approval. The Licensee shall specify how many Vivos shall be redeemable in consideration of the Licensee Product, subject to Vivo Rewards' prior approval. If a Subscriber chooses to redeem its Vivos for a Licensee Product then the Licensee shall be responsible for providing the Licensee Product to the Subscriber. Where the Licensee Product is purchased in exchange for Vivos, Vivo Rewards shall then credit the Licensee with the equivalent amount of Vivos that were redeemed for the relevant Licensee Product in line with the VI Reimbursement Policy that can be found on the Vivo Rewards' website.
7.8 Where a Subscriber elects to donate its Vivos to a charity set up by Vivo Rewards, then Vivo Rewards shall make a cash donation equivalent to the amount of Vivos redeemed (1VI = 1pence) to the nominated charity on behalf of the Licensee and/or User. Where different Subscribers request to donate to the same charity set up by Vivo Rewards, Vivo Rewards may aggregate individual donation requests into one lump sum donation and may wait until the aggregate request total exceeds £100 before making such donation. All donation requests will, however, be fulfilled. The Licensee may set up its own local good cause or fundraising event as a nominated charity via the Vivo Rewards System. This will be reimbursed in line with the VI Reimbursement Policy below
7.9 Any reference to Vivos becoming null and void in this Agreement shall mean that neither a User nor the Licensee shall be entitled to use such Vivos for any purpose, including that such Vivos may not be redeemed for any goods or services and may not be awarded to, or transferred to, any other User.
7.10 The Licensee accepts and acknowledges that Vivo Rewards shall have no direct relationship with Users, other than those particular Subscribers who may register with Vivo Rewards to join the Wider Rewards Scheme. It shall, therefore, be the Licensee's responsibility to inform its Users about the conditions placed upon the use and redemption of Vivos and to ensure that the User is aware of, and agrees to, these conditions before it permits any User to make use of the Vivo Rewards System.
Reimbursement policy – In the first instance all reimbursements will be in Vivos unless specifically requested otherwise. Vivo ME vouchers are the preferred option if Vivos are not acceptable. There will be a 5% transaction fee for all cash reimbursements. Vivo reimbursements will be processed monthly, all cash reimbursements will be processed on request once per term.
8.1 Vivo Rewards shall allocate to the Licensee unique passwords and user names necessary for the number of concurrent Users, except that it may issue a password and user name directly to any Subscriber who registers for the Wider Reward Scheme. Vivo Rewards may alter these from time to time upon reasonable prior written notice of the fact of alteration and the new password being given to the Licensee, or with immediate effect if Vivo Rewards reasonably believes a password is no longer secure.
8.2 Any password or identifier shall be used solely by the User, is not transferable and shall be kept strictly confidential by the User. The Licensee agrees that:
(a) its Users shall not disclose the password or identifier to anyone without Vivo Rewards' prior consent;
(b) it shall notify Vivo Rewards immediately if it becomes aware that a password or identifier has become known by anyone not authorised by Vivo Rewards to use the Vivo Rewards System, in which case Vivo Rewards shall be entitled to cancel that password or identifier and issue new ones as Vivo Rewards shall see fit; and
(c) it shall indemnify Vivo Rewards for all losses, damages and costs suffered or incurred by Vivo Rewards (including loss of revenue), as a result of any unauthorised use of any password or identifier (or the Licensed Materials), that is caused by the Licensee's breach of clause 8.2(a) above.
9.1 Vivo Rewards shall use reasonable skill and care in the performance of its obligations under this Agreement. Vivo Rewards further warrants and represents that it has full capacity and authority to enter into this Agreement.
9.2 Save as set out in clause 9.1 above, Vivo Rewards gives no warranty:
(a) as to the accuracy, completeness or suitability of any of the Licensed Materials and the Licensee and each User uses the Licensed Materials at its own risk;
(b) as to the uninterrupted availability of the Licensed Materials; or
(c) that the Licensed Materials shall be compatible with the Licensee Systems.
9.3 Vivo Rewards shall not be responsible for any errors or omissions in the Licensed Materials, or for any technical problems the Licensee or User may experience with the Licensed Materials.
9.4 To the fullest extent permissible by law, all warranties, conditions or terms, other than those expressly set out in this Agreement are excluded, including, but not limited to, implied statutory conditions and warranties.
9.5 Vivo Rewards shall not be responsible for any loss or damage caused or alleged to have been caused, directly or indirectly, by the information or ideas contained, suggested, or referenced, or in the Licensed Materials or email alerts, or the Vivo Rewards websites.
9.6 Vivo Rewards is not responsible for content on the internet or World Wide Web pages outside the Vivo Rewards websites. As a convenience to the Licensee, the Vivo Rewards websites may include links to sites on the open web and which are beyond its control. Vivo Rewards makes no representations as to the quality, suitability, functionality or legality of any sites to which the Licensed Materials, Vivo Rewards websites or email alerts link and you waive any claim you might have against Vivo Rewards with respect to such sites.
9.7 Vivo Rewards makes no representation that materials on the Vivo Rewards website, or in the Licensed Materials are appropriate, or available for use in locations outside the United Kingdom and accessing the Vivo Rewards websites from territories where its contents are illegal or unlawful is prohibited. If the Licensee or a User chooses to access the Vivo Rewards websites from locations outside the United Kingdom, the Licensee or User does so on their own initiative and are responsible for compliance with local laws.
10.1 Save as provided in clause 10.3, Vivo Rewards agrees to indemnify and defend the Licensee from and against any claims, actions, demands, charges, damages, costs, expenses and amounts payable under any judgment, court order or settlement, to the extent resulting from any claim that the Licensed Materials, or any part thereof infringes a third party's Intellectual Property Rights.
10.2 Save as provided in Clause 10.3, in addition to Vivo Rewards' indemnity obligations under Clause 10.1, should the Licensee's use of the Licensed Materials be determined to have infringed, or if, in Vivo Rewards' reasonable judgement, be likely to infringe any Intellectual Property Rights, Vivo Rewards may at its option and expense:
(a) procure for the Licensee the right to continue using the Licensed Materials or the relevant part thereof; or
(b) replace or modify the Licensed Materials or the relevant part thereof, to make the Licensee's use non-infringing, providing that any such replacement or modification shall not degrade the content, quality or performance of the Licensed Materials.
If neither option (a) nor (b) are, or would be available on a basis that Vivo Rewards finds commercially reasonable, then Vivo Rewards may terminate this Agreement and the Licensee shall, on receipt of written notice from Vivo Rewards to do so, immediately cease to use and deliver up (or destroy at Vivo Rewards' option), the Licensed Materials. In such circumstances and without prejudice to any of the Licensee's other rights and remedies arising under this Agreement, Vivo Rewards shall refund any Charges paid under this Agreement which relate to a period after the date on which the Licensee's use of the Licensed Materials ceased.
10.3 The indemnity under Clause 10.1 shall not apply to any allegation of infringement, to the extent that it is due to third party products or services, or to the Licensee having used the Licensed Materials (a) in a manner not contemplated by this Agreement; or (b) in breach of this Agreement.
10.4 The indemnity contained in Clause 10.1 is contingent upon: (a) the Licensee promptly notifying Vivo Rewards in writing of any claim that may give rise to a claim for indemnification under clause 10.1; (b) Vivo Rewards being allowed to control the defence and settlement of such claim; (c) the Licensee co-operating (at its own expense), with all reasonable requests by Vivo Rewards in defending or settling a claim and (d) the Licensee not having made, or making an admission or settlement with the third party without the prior written consent of Vivo Rewards, (such consent not to be unreasonably withheld or delayed).
11.1 For the purposes of this Clause 11, "personal information" , "agency" and "information privacy principles" shall have the meanings ascribed to them in the Privacy Act 1988 ("the Act"). The parties recognise that:
(a) by accessing the Licensed Materials, the Licensee shall have access to and shall process personal information that is subject to the provisions of the Act; and
(b) Vivo' provision of the Services may require Vivo to process personal information.
Where a party processes personal information in the course of its performance of this Agreement, it is acknowledged that such party may act in the capacity of an agency. Accordingly, each party agrees to comply with the information privacy principles when doing any act or engaging in any practice in relation to personal information for the purposes of this Agreement, as if they were an agency.
11.2 Licensee hereby authorises Vivo to use its Users' personal information in the Vivo System, including on databases outside of the UK, to the extent that such use is necessary in order for Vivo to provide the Services.
11.3 The Licensee acknowledges and agrees that information may be stored on databases that are located outside of the UK but that Vivo shall comply with all the information privacy principles.
11.4 Vivo will only provide Users' personal information to a third party where necessary in order to carry out a transaction that a User has made using Vivo Credits.
11.5 Vivo may provide Users' personal information and the data generated by cookies and the aggregate information to the vendors and service agencies that Vivo may engage to assist it in providing the Services. Such third party entities will be obligated to use Users' personal information solely to provide Services, and for no other purpose.
11.6 The Licensee accepts that it is solely responsible for obtaining all necessary consents and warrants that all Users or, where necessary, the parents of those Users of the Vivo System have consented to Vivo processing of their personal data to the extent necessary for Vivo to comply with its obligations under this Agreement. A "click wrap" agreement which contains a privacy consent may be implemented for all Users upon their initial access of the website.
11.7 Vivo shall implement appropriate systems and procedures to ensure that any personal information contained within the Licensed Materials are adequate, relevant, not excessive, accurate, and, where necessary kept up to date.
11.9 To the extent that Vivo controls or processes personal information in the capacity of an agency during the course of its performance of this Agreement (including without limitation all processing of Data), Vivo agrees that it shall (a) have in place and maintain appropriate technical and organisational measures to prevent any unauthorised or unlawful processing of such personal information, and to prevent accidental loss or destruction of, or damage to such personal information, (b) only process and hold the personal information in order to perform its obligations under this Agreement or otherwise in accordance with the Licensee's reasonable written instructions from time to time and (c) comply with obligations equivalent to those obligations imposed on an agency by the Act.
11.10 To the extent that the Licensee processes personal information in the capacity of an agency during the course of its performance of this Agreement, the Licensee agrees that it shall (a) have in place and maintain appropriate technical and organisational measures to prevent any unauthorised or unlawful processing of such personal information, and to prevent accidental loss or destruction of, or damage to such personal information, (b) only process and hold the personal information in order to perform its obligations under this Agreement or otherwise in accordance with Vivo' reasonable written instructions from time to time and (c) comply with obligations equivalent to those obligations imposed on an agency by the Act.
11.11 Vivo shall indemnify and hold harmless the Licensee and the Users against any losses, costs and expenses incurred by any of the foregoing arising out of any breach of this clause 11 by Vivo.
11.12 The Licensee shall indemnify and hold harmless Vivo, against any losses, costs and expenses incurred by any of the foregoing arising out of any breach of this clause 11 by the Licensee including, but not limited to, any failure by the Licensee to obtain the Users' consent to Vivo processing of their personal information.
12.1 Neither party shall disclose to any third party, without the prior written consent of the other party, any of the other party's Confidential Information. A party shall use Confidential Information received from the other, only for the purposes of the proper performance of its obligations and exercise of its rights under this Agreement.
12.2 Confidential Information shall not include any information which: (a) is, or becomes generally available to the public, other than as a result of a breach of an obligation under this clause; (b) is acquired from a third party who owes no obligation of confidence in respect of the information; or (c) is or has been independently developed by the recipient, or was known to it prior to receipt.
12.3 Notwithstanding clause 12.1 above, either party shall be entitled to disclose Confidential Information of the other: (a) to their respective insurers or legal advisors; (b) to a third party to the extent that this is required by any court of competent jurisdiction, or by a governmental or regulatory authority, provided that in the case of sub-clause (b) where reasonably practicable (and without breaching any legal or regulatory requirement), not less than 2 business days notice in writing is first given to the other party
12.4 The parties' obligations of confidentiality contained in the clause shall survive termination of this Agreement.
13.1 A party shall accept liability without limit for (a) death or personal injury caused by its own negligence, or the negligence of its employees acting in the course of their employment; (b) any fraudulent pre-contractual misrepresentations on which the other party can be shown to have relied; and (c) any other liability which by law cannot be excluded or limited.
13.2 Nothing in this clause 13 shall operate to limit either party's liability to the other under the indemnity in clause 10.1 (Intellectual Property Rights Indemnity), or clause Error: Reference source not found or Error: Reference source not found (Data Protection).
13.3 Subject to clause 13.1and 13.2 above and clause 13.5 below, Vivo Rewards’ total liability to the Licensee, or any User arising under, or in connection with, this Agreement in any Year, whether in contract, tort (including, without limitation, negligence), statute or otherwise (and including any loss, corruption of data or loss or damage to the Licensee Systems), shall not exceed £15,000 (fifteen thousand pounds)or the Charges paid by the Licensee in respect of the Year preceding the date on which the cause of action arises, whichever shall be the greater.
13.4 Subject to clause 13.1 above and clauses 13.5 and 13.6 below, the Licensee’s total liability to Vivo Rewards arising under or in connection with this Agreement in any Year, whether in contract, tort (including, without limitation, negligence), statute or otherwise shall not exceed £15,000 (fifteen thousand pounds), or the Charges paid by the Licensee in respect of the Year preceding the date on which the cause of action arises, whichever shall be the greater. Nothing in this clause 13 shall limit the Licensee’s liability to pay the Charges.
13.5 Neither party shall be liable to the other party for any loss of profits, goodwill, or business, loss or corruption of data, indirect or consequential loss or damage, nor for loss of profit, goodwill, or business.
13.6 Nothing in this clause 13 shall operate to limit the Licensee's liability under clause 11.9.
14.1 If Vivo Rewards reasonably suspects that the Licensee or any User is in breach of the Agreement, Vivo Rewards may immediately suspend the provision of the Licensed Materials either to that particular User, or to the Licensee as a whole upon written notice to the Licensee, provided that such notice shall give reasonable details of the suspected breach, shall include evidence of the grounds for Vivo Rewards' suspicion and that Vivo Rewards shall forthwith, provide to the Licensee on request, any further information reasonably requested by the Licensee as evidence of the basis of Vivo Rewards' conclusions.
14.2 In the event of any suspension of the Licensed Materials pursuant to clause 14.1, Vivo Rewards shall resume its provision of the Licensed Materials as quickly as is reasonably practicable, if the matters that gave rise to the suspension are rectified, or it transpires that the suspicion was ill-founded.
14.3 The exercise by Vivo Rewards of any right to suspend its provision of the Licensed Materials, or by either party to terminate the Agreement shall not limit any other rights or remedies that party may have and shall not affect any accrued rights or obligations arising before the date of termination.
14.4 The Agreement may be terminated forthwith by either party in writing if the other party:
(a) has a bankruptcy petition presented against it or goes into liquidation, other than for the purposes of a solvent amalgamation or re-construction, or makes any voluntary arrangement with its creditors, or has a receiver, manager, administrator or like person appointed under the Insolvency Act 1986 and such appointment is not discharged within 30 days of being made, or where the Licensee is a partnership where the partnership is dissolved, or where the Licensee is situate outside of the UK, any analogous situation to any of the above arises in the country in which it is situate; or
(b) commits a material breach of this Agreement and either (a) the breach is not capable of remedy, or (b) the breach is capable of remedy and the breaching party has been advised in writing of the material breach, but has not rectified the breach within 30 days of receipt of such notification.
14.5 Upon termination of this Agreement the Licensee shall immediately cease to use the Licensed Materials. A duly authorised officer of the Licensee shall provide written confirmation to Vivo Rewards within 14 days of the date of termination that the Licensee has done so and shall deliver up (or destroy at Vivo Rewards' option) the Licensed Materials.
Upon termination any Vivos to be re-funded in cash is only applicable subject to an exit interview with a member of the field sales team.
15.1 The Licensee shall be entitled, without Vivo Rewards' consent, to assign or transfer its rights to any entity to which all or part of its business is transferred. Save as set out in this clause 15.1, this Agreement is personal to the Licensee and the Licensee may not assign or otherwise transfer any of its rights or obligations under the Agreement to any third party without the prior written consent of Vivo Rewards. Vivo Rewards' consent to such assignment or transfer shall not be unreasonably withheld or delayed.
15.2 Vivo Rewards shall be entitled, without consent, to assign or transfer its rights and obligations to any entity to which all or part of its business is transferred. Save as set out in this clause 15.2, Vivo Rewards may not assign, or otherwise transfer, any of its rights or obligations under the Agreement to any third party without the prior written consent of the Licensee. The Licensee's consent to such assignment or transfer shall not be unreasonably withheld or delayed.
15.3 Vivo Rewards is permitted to subcontract the performance of any of its obligations under this Agreement to a third party on condition that:
(a) Vivo Rewards shall at all times remain liable to the Licensee for the performance of all of its and its sub-contractor's duties and obligations under this Agreement; and
(b) Vivo Rewards shall procure that any sub-contractor is bound by all appropriate obligations (including but not limited to those relating to data protection, confidentiality and Intellectual Property Rights) contained in this Agreement, insofar as such obligations are relevant to the sub-contracted services.
16.1 The Licensee accepts and acknowledges that Subscribers or, where appropriate, the Subscriber's parent or responsible adult, will be offered the opportunity to participate in the Wider Reward Scheme and if the Subscriber or responsible adult chooses to do so, increased functionality will be offered to that User or responsible adult through the Vivo Rewards System including an introduction to other third party products and services and other closed network reward schemes.
17.1 Any reference to Vivo Rewards sending notices or other communications to the Licensee "in writing," shall include electronic notifications or communications by email, or by way of updates through the Vivo Rewards System. All other notices to be sent from one party to the other in connection with the Agreement (including notices to terminate) shall be delivered by hand, sent by post or faxed to the address of the relevant party, or such other address as may be notified by either party to the other from time to time. The address for Vivo Rewards is as follows: Vivo Rewards Limited, 47 Margaret Street, London, W1W 8SB.
17.2 It shall be the Licensee's responsibility to notify Vivo Rewards in accordance with Clause 17.1 of any change of name, or other details shown on the Vivo Rewards Limited Licence Agreement.
17.3 Notices sent by post shall be deemed to have been received two days after posting, otherwise notices shall be deemed to have been received on the next working day following transmission and, in the case of service by fax, the party effecting service shall be required to prove that the notice has been served by the production of an appropriate facsimile transmission report.
18.1 A party (the "Affected Party") shall not be liable to the other party (the "Unaffected Party"), for a failure to fulfil any obligation hereunder, if such failure was due to a Force Majeure Event, provided that it complies with its obligations under the remainder of this Clause 18.
18.2 The Affected Party shall
(a) as soon as possible notify the Unaffected Party in writing of the circumstances constituting the Force Majeure Event;
(b) keep the Unaffected Party regularly informed of its progress in resuming full performance of its obligations; and
(c) take all reasonable steps to minimise the adverse effects of the Force Majeure Event on the performance of its obligations under this Agreement.
18.3 If any Force Majeure Event continues for more than 30 days from the date of notification by the Affected Party to the Unaffected Party, either party shall be entitled to terminate this Agreement by giving the other written notice to that effect.
19.1 Failure by either party to exercise any right or remedy under this Agreement shall not signify acceptance of the event giving rise to such right or remedy, nor shall it constitute a waiver of such right or remedy, nor of any other right or remedy.
19.2 No single or partial exercise of a right or remedy provided by this Agreement or by law, shall preclude any further exercise of the right or remedy or the exercise of any other right or remedy.
19.3 No waiver of a breach of any terms of this Agreement, or of a default under this Agreement, shall be effective unless in writing, signed by, or on behalf of, the parties and expressed to be such a waiver.
Each provision of the Agreement is severable from the rest of the Agreement and if one part should be found to be invalid, illegal or void for any reason, it shall not affect the validity or legality of any other part and the remaining parts shall continue to have full force and effect.
21. Entire Agreement
This Agreement (including the Vivo Rewards Limited Licence Agreement and any referenced documents) forms the entire agreement between the parties in respect of the subject matter of this Agreement.
22.1 Subject to clause 22.2, the Licensee may be notified of updates to these terms and conditions from time to time when it logs on to use the Vivo Rewards System. The Licensee will be deemed to have agreed to any such updates if it continues to use the Vivo Rewards System and participate in the Reward Scheme once it has received any such notification.
22.2 No variation to the duration of this Agreement or to the Charges payable under this Agreement (other then as expressly permitted under Clauses 5 or 6), shall be effective unless made in writing, signed by, or on behalf of, each of the parties and expressed to be such a variation.
Nothing in this Agreement shall be construed as constituting a partnership, joint venture, association, or other co-operative entity or agency relationship between the parties and neither party shall have any authority to act on behalf of the other nor to bind the other in any way, except as expressly permitted by the provisions of this Agreement.
This Agreement may be executed in counterparts, each of which shall be an original, but such counterparts shall together constitute one and the same document.
The Agreement shall be construed in accordance with and governed by English Law and shall be subject to the non-exclusive jurisdiction of the English Courts.