These standard terms and conditions (“STC”) apply to all services provided to the client by Vivo Collaboration Solutions Private Limited, its officers, employees, associated entities, agents, consultants and subcontractors (jointly called “Vivo”), or together by Vivo and a company whose services Vivo is allowed to resell (the “Services”), on a 24 hour per day, 7 days per week basis, in consideration of payment based on the charges and fulfilment of the specific conditions set out on the service order form (“SOF”) signed by the Client.
The contract shall form the entire agreement between the parties. In case of any conflict between the STC and the SOF, the SOF shall prevail, unless they are completed and/or superseded by another agreement signed by the parties, such as a master agreement.
The contract shall commence on the date of its signature by both parties (“Effective Date”) and may apply retroactively to any former testing period granted to the client.
2.1. Charges: The client shall pay the charges for the services as set out in the SOF or in a superseding quotation accepted by the client in writing. All charges are exclusive of any applicable taxes, VAT and regulatory fees now or hereafter attributable to the services and included on the invoice. If hardware is sold, Vivo retains title and lien until full payment is made by client who is responsible for all costs of shipping, transport and insurance as well as applicable customs duties and taxes.
In the event that any regulatory agency, legislative body or court creates regulations or laws or that a provider modifies tariffs that result in an increase in the costs incurred by Vivo in providing the Services, Vivo may increase the charges to client by giving to the client not less than 30 days’ notice in writing of such increase, provided that the client may terminate the part of the contract affected by the increase as of the date of the implementation of the new charges, without any penalty.
2.2. Invoicing: The services are invoiced in a period and in a currency as set out in the SOF.
2.3. Methods of payment: Net payment of invoices, in full and in cleared funds duly received by Vivo, shall be due as set out in the SOF and by default 30 days from the date of the invoice. Any invoice not disputed within 30 days after which it was issued shall be considered to have been accepted by the client.
Overdue balances shall be subject to a service charge of a percentage set out in the SOF per month on the amount due on each unpaid invoice and accruing on a daily basis until payment is made. If the client fails to pay the charges due in a timely manner, Vivo may suspend access to services without prior notification to the client.
Unless the term is set out in the SOF, the initial term of the contract shall commence on the Effective Date and continue for a period of one year. Thereafter, the contract shall automatically renew from year to year unless one party gives written notice of termination to the other at least two months prior to the end of the initial or renewal term.
4.1. Notwithstanding any other provision of the Contract, when the Client downloads any software application, including any conferencing Add-on software together with any documentation to use the Services (“Software”), the Client is entitled to use the Software insofar as this is necessary for the proper utilization of Vivo’s conferencing Services and only as expressly permitted in this Contract but only for the period of the term of the Contract.
The Software is licensed, not sold. Vivo hereby grants the Client a non-exclusive, non-transferable and non-sub licensable license to use the Software.
All rights, title, ownership rights, and Intellectual Property Rights in the Software are protected by applicable copyright laws or other laws and are held by Vivo and Vivo reserves all of them. The Client shall supervise and control the use of the Software so that any Client only does so in accordance with these SLT. The Client must comply with any technical limitations in the Software that only allow using the Software in certain ways and may not: (i) copy the program or the source code of the Software, (ii) utilize the Software for any purpose other than participation in or use of the conferencing Services, (iii) create copies of the Software for any purpose that is not directly related to the conferencing Services or make more copies of the Software than specified in these SLT or allowed by applicable law despite this limitation, (iv) modify, translate, adapt, reverse engineer, decompile, disassemble (except and only to the extent that applicable law expressly permits, despite this limitation), incorporate the Software into any other software or create derivative works based upon the Software, (v) resell, rent, lease or make any commercial use of the Software or transfer the Software or these SLT to any third party, (vi) use the documentation but for internal and reference purposes, (vii) remove any proprietary notices or labels from the Software, (viii) export, re-export, divert or disclose any portion of the Software or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.Use of the Software and of any material obtained and/or data downloaded through or material and/or data recorded, played back or edited (as applicable) with the Software is at the Client’s sole discretion and risk.
The Client shall:
5.1. provide Vivo with all the information necessary to provision the Services and update Vivo in writing with any changes in such information (especially any change of address, user, or otherwise). The Client shall be solely responsible for any consequences caused by failure to provide or update such information;
5.2. only use the Services in accordance with directions given by Vivo from time to time for better management of the Services or for security purposes and provide content in accordance with all applicable local laws and regulations and make all necessary disclosures before using the Services and/or the Software (defined below) regarding the collection and the use of identifying information about Services participants;
5.3. restrict knowledge and maintain the confidentiality of all telephone access numbers, PIN Codes, logins, passwords and personal identification numbers used in connection with the Services and generally safeguard such information to ensure that there is no unauthorized use of the Services;
5.4. assume the exclusive liability for the use of the Services, especially in the case of Client’s use after termination of the Contract whatever the cause, and for illegal, fraudulent or immoral purposes by the Client and for the content and the transmission of any conference communications;
5.5. grant Vivo, solely for the purpose of providing the Services, a non-exclusive, worldwide, royalty free and transferable license to host, record, copy, cache and display such content;
5.6. indemnify, defend and hold Vivo and its suppliers harmless from and against any claims, damages, liabilities, costs and expenses (including without limitation reasonable legal fees and expenses including taxes and VAT) arising out of or related to: (i) the use of the Services, including content of any conference communications held by the Client (such as confidential communication and disclosures made through the use of the Services) and transmission content (such as application sharing, document sharing, file transfer), (ii) the Client’s breach of any provision of this Contract (including the SLT), (iii) Client’s infringement of any Intellectual Property Rights or other rights of any person or entity caused by the use of the Services including the use of any Software.
5.7. use the Services for the purpose restricted to conferencing. The Client should use the Services for purposes as deemed legal by the concerned government and regulatory body and/or bodies. The Client should not use the Services for illegal trade, terrorism or any other activity as identified illegal by the concerned government and regulatory body and/or bodies.
6.1. use reasonable endeavours to provide the Services and shall perform its obligations with reasonable care and skill in accordance with the standard normally provided by a skilled professional firm in the performance of services similar to the Services provided hereunder. The Client recognizes that provision of the Services depends on the reliability, availability and continuity of connections by various third parties and external factors (such as telecom carriers, public internet, Client’s equipment, etc.) and Vivo cannot be liable for a service interruption outside of its control. Vivo makes no warranty express or implied that all security threats and breaches and vulnerabilities will be detected. Vivo may be required to reduce or suspend Services for a short period to enable technical or maintenance operations to be improved, upgraded or conducted or to avoid an imminent threat of material harm to Vivo or to anyone else and it will use best effort to minimize any inconvenience to the Client caused by such reduction or suspension of Services. In addition, Vivo may provide all updates, supplements, add-on components, features, or other functionality, including without limitation increases, decreases, and alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Services that Vivo may make available to the Client after the date that Services commence, subject to any additional terms and conditions provided by Vivo applicable to such updates, including for Services Vivo is allowed to resell;
6.2. make its training service reasonably available to Client so that the Client is aware of best practices regarding Services usage and of the security features of the Services;
6.3. ensure that conferences are kept confidential when using its communications equipment and the associated servers and that the staff who have access to the teleconferencing equipment similarly keep the Client’s information confidential;
6.4. ensure that the web conferencing platform uses reasonable current security technology covering user authentication and data encryption;
6.5. ensure the integrity and the confidentiality of any content that may have been recorded and/or stored;
6.6. defend or, at its option, settle any claim or action brought against the Client alleging that the use of the Services or any Software (or any part thereof) as provided under the Contract and as used within the scope of the SLT granted to the Client, infringes the Intellectual Property Rights of a third party, provided that (i) this infringement claim is not attributable (a) to a use other than in accordance with the Contract and the SLT irrespective of whether the use is in combination with any service(s) not furnished by Vivo, or (b) to the use of a non-current release of the Software and that (ii) the Client gives reasonable notice and cooperation to Vivo in connection with the defence of such claim, makes no admission or settlement in respect of such claim and that Vivo directs and controls such defence.
This clause sets out the entire legal and financial liability of Vivo to the Client in respect of any claims relating to (i) any breach of this Contract (ii) any use made by the Client of the Services or (iii) any representation, statement or tortuous act or omission (including negligence) of Vivo arising under or in connection with this Contract. Vivo disclaims any warranty of merchantability or fitness for use and all other warranties, conditions and other terms implied by statute or common law, to the fullest extent permitted by law, are excluded. In no event shall either party be liable to the other whether in tort, contract, innocent misrepresentation or in any other legal theory, for (i) any special, indirect, incidental or consequential loss, costs, damages, charges or expenses; or (ii) loss of profits, or (iii) loss of business, contracts, business opportunities; or (iv) loss of income, anticipated savings; or (v) loss or corruption of data or information; or (vi) any degradation which occurs in relation to the network or associated software or hardware of the Client as a result of the performance of the Services.
Vivo’s maximum aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or any other legal theory for damages arising out of or relating to the Services or this Contract (including the SLT) shall not exceed the total amount of 125% of the fees paid by Client or its associated entity to Vivo or its associated entities, under the applicable SOF relevant to the incident, including Event (but excepting audio conferencing Services and for any software licences, to the amount actually paid by the Client for such licence. In relation to applicable audio-conferencing Services, this will be aggregate amount of the previous two (2) months of billings immediately prior to the incident arising. To the extent that it cannot be excluded or limited as a matter of law, nothing in this Contract excludes the liability of one party (i) for death or personal injury caused by negligence; or (ii) for fraud or fraudulent misrepresentation.
In an event of Force Majeure (any cause beyond a party’s reasonable control including, without limitation, act of God, governmental act, war, fire, flood, explosion or civil commotion) the affected party shall notify in writing the other party within 3 business days following its occurrence. Vivo shall not be in breach of this Contract, nor liable for any failure or delay in performance of any obligations under this Contract arising from or attributable to Force Majeure, including interruption of service by third party telecom carriers event. Only the material or geographical part of the Contract affected by the event of Force Majeure shall be suspended during such event or terminated as set out under clause 8.
Without prejudice to any other rights or remedies to which the parties may be entitled, each party may:
a) terminate the Contract in the event of a material breach of this Contract which, if capable of remedy, is not remedied within 30 days of its notification to the other party in writing to remedy such breach;
b) immediately terminate the Contract if: (i) a receiver or administrator is appointed over the other party or its assets or if the other party is subject to court-ordered bankruptcy, liquidation or any analogous proceedings under laws of any jurisdiction or (ii) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its activity;
c) terminate the Contract in the event of a Force Majeure affecting the Contract for an uninterrupted period of over 3 months as of the date of the notice of Force Majeure.
On termination of the Contract, howsoever occurring, the Client shall immediately pay Vivo any amounts owed under the Contract, including but not limited to (i) all of Vivo’s outstanding unpaid invoices and interest as well as any invoices which will fall due, and (ii) for the web conferencing service invoiced by fixed monthly subscription, all fixed monthly subscriptions remaining to run until the end of each subscription as specified in the SOF.
The Client agrees that all Intellectual Property Rights, confidential know-how, trade secrets, graphics, logos and trade names used by Vivo in performing its obligations under this Contract (“Intellectual Property Rights”) are, and will remain, the property of Vivo (or the third party who has granted Vivo the right to use them) and nothing in this Contract or Vivo performance of it will be deemed to transfer to the Client any such Intellectual Property Rights of Vivo or any third party. The allocation of access numbers, PIN Codes, logins, passwords, personal identification numbers and telephone numbers shall not involve any transfer of ownership to the benefit of the Client.
Vivo may reference the names, trademarks, trade names and corporate logos of the Client on marketing literature, website, and commercial representations and in any list of Client references only with the Client’s written prior consent, which shall not be unreasonably withheld.
11.1. Confidentiality: For a period of 5 years after disclosure, each party and their employees, agents, consultants, subcontractors or any other persons for whom they are responsible undertake to keep strictly confidential any information that they may have mutually exchanged during the performance of the Contract including passwords or access keys to the Services. Confidential information includes, but is not limited to trade secrets, customer lists, Customer Proprietary Network Information as defined under US laws (“CPNI”), software plans or any other product or projects in development, marketing or business plans, or financial information, pricing, and all documents/access information for the Services, and (ii) shall not use or disclose any information to a third party for any purpose other as may be reasonably necessary for the performance of the respective duties of each party under this Contract. At termination of the Contract, each party will return all confidential information to the other promptly upon request of the other party.
Each party may assign or transfer any of its rights or obligations under this Contract, in whole or in part, without the consent of the other party provided it shall inform the other party in writing prior to the assignment or the transfer. Notwithstanding, neither party may assign or transfer any of its rights or obligations under this Contract to any third party which is a direct or indirect competitor of the non-assigning party without the prior written consent of the non-assigning party.
This clause shall not be construed as limiting Vivo right to use subcontractors to carry out any of its obligations under this Contract, provided that Vivo shall remain liable for any such Services provided by a subcontractor.
This Contract shall be governed exclusively by English law. The parties will escalate any dispute that cannot be resolved on a local basis within 14 days to their respective CEOs, who will apply all bone fide efforts to settle such dispute fairly and within a reasonable timescale. If no resolution is achieved, all disputes in relation to this Contract or the subject matter contained herein shall be settled through arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce by one (1) arbitrator appointed in accordance with the said rules. The arbitration proceedings shall be conducted in English. The venue of arbitration shall be Delhi, India.
As a part of the Contract, Vivo holds the right to monitor and observe the usage of Client in case of subscription of unlimited monthly usage packages. The Client, when buying any of unlimited monthly usage packages agrees to (i) restrict the usage of Services to conferencing purposes only, and no other purposes such as but not limited to call centre, support centre and cheap call connecting. (ii) not misuse the Services in terms of consumption by allowing multiple users to use a single moderator/organizer account. (iii) restrict usage of single moderator/organizer account within three thousand and six hundred minutes of total conferencing within a month.
In the event of violation of the fair usage policy, Vivo holds the right to inform the Client to amend the usage and/or to buy more moderator/organizer accounts. In the event when Client refuses to agree on the subject, or in case of no information/action from Client on the subject within 7 days after initial notification from Vivo, Vivo holds the right to terminate the Services given to the Client with a notice of 7 days.
15.1. Failure by a party to enforce any clause of the Contract, whether temporarily or permanently shall under no circumstance be construed as a waiver of the rights of such party under the said clause.
15.2. If any of the terms of this Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term will to that extent be severed from the remaining terms which will continue to be valid to the fullest extent permitted by law.