Terms

USER TERMS

We are  Vibrant Music Ltd, doing business/trading as Vivid Practice ("Company," "we," "us," "our"), a company registered in Ireland having its registered office at 78 Durrow Road, Dublin, Dublin D12V3A3. Our VAT number is IE3678827SH.

We provide Services (as defined below) which can be accessed through our website  https://vividpractice.com  (the "Site") in the case of teachers, and our mobile application Vivid Practice (the "App") for students.  
These User Terms constitute a legally binding agreement made between you, and Vibrant Music Ltd, concerning your registration, access to and use of the Site, and the Services. By accessing the Site, and the Services (defined below) provided by us, you the User confirm that you have read, understood and agreed to be bound by these User Terms, the Privacy Policy and the Cookies Policy.  
IF YOU THE USER DO NOT WISH TO BE BOUND BY THESE USER TERMS, PRIVACY STATEMENT AND COOKIES POLICY OR IF YOU DO NOT AGREE WITH ALL OF THESE USER TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM APPLYING TO REGISTER, AND TO USE, THE SITE, AND THE SERVICES AND YOU MUST DISCONTINUE ACCESS AND USE IMMEDIATELY.
These User Terms, the Privacy Statement and or the Cookies Policy may change or be updated from time to time. It remains your responsibility to access and check these User Terms the Privacy Policy https://vividpractice.com/privacy-policy and the Cookies Policy wherever you access the Site.
1. Definitions

In these User Terms:

agreement means the agreement formed, when the User accepts these Terms and Conditions and sets up their account.
App or APP means our App version 1 named Vivid Practice and available from the App Store.

App Service means the services enabling the student, to view the practice assignments and notes provided by their teacher, structure their practice time, message their teacher, and participate in group chats (if set up by their teacher) with other students and their teacher.  

account means the electronic account held by us in a User’s name and which holds the information submitted by the User when the User is required to register with us in order to use the Services and such other information as allowed or required by us from time to time.

App Store means the Google Play Store or the Apple App Store.

Commissioner means the Data Protection Commission.

Company (referred to as either "the Company", "we", "us" or "our" in these User Terms ) refers to Vibrant Music Ltd, registered in Ireland, registered number 667025 and having its registered office at  78 Durrow Road, Dublin, Dublin D12V3A3.
consumer means a natural person acting for purposes that are wholly or mainly outside his or her’s trade, business, craft or profession.

Data Protection Legislation means the Data Protection Act 2018 and the General Data Protection Regulation (EU) 2016/679.

Log-in means the part of the Site, termed as such which enables a User who is already registered with us to access the Site and the Services.
Profile means the part of the Site which allows a User to create a profile in a form indicated on the Site or otherwise specified in a question and answer provided by us on the Site.

Services means the services as referred to at clause 7.1 below.

Site means the site accessible at https://vividpractice.com  and the Systems.

Security questions means the questions which a User may be asked by the help desk, if the helpdesk calls or emails the User following the emailing of a report by the User pursuant to clause 6.1 below, the answers to which would have been provided by the User when registering for the Services. Please note such calls may be recorded by us.  
Sign-up means the part of the Site which a User accesses in order to register with us.

student means a student who has downloaded the App from the App
Store and who has satisfied our registration requirements (where applicable) and who has registered with us.

Subscription means the subscription option chosen by the User in order to access and use the Site and the Services from the menu of subscription options as set out on the Site.

Systems mean the hardware and software underlying the Site and operated by us.

Tax means value added tax chargeable under the laws of Ireland and including any similar, substitute, or replacement tax on, inter alia, the supply of services in and from Ireland.

teacher means a music teacher, over the age of 18 years, who has registered with us in order to access and use the Site, and the Services.

User or you means a natural person, being a teacher or the school, on behalf of which such teacher is acting.
User Content means any content you upload to the Site and or provide to students and which is not owned by us.

User Terms or Legal Terms means the provisions at the outset of these User Terms, the definitions, clauses 1 to 33 and any other document incorporated by reference including but only where applicable, the terms and conditions applicable to the App. The User Terms also include all amendments thereto pursuant to clause 9 below.

 

2.    Registration

2.1    A User who is a teacher (as defined) can apply to register on our Site by entering the Site at Sign-up. Generally the User will be required, subject to clause 2.2 and clause 2.4, to provide a username and a secure password, which password the User will be required to confirm.

2.2    Where required by us, the User undertakes to provide us at Sign-up and or from time to time, with such information as we may require to enable us comply with (i) Tax requirements; and; or (ii) any age verification requirements and; or (iii) anti-money laundering and or anti-terrorist financing regulations.

2.3    Each applicant User acknowledges and agrees that we may refuse to register the applicant User at our absolute discretion.

2.4    You the applicant User undertakes to us, not to submit to us, or use  as a  username (i) a name that is otherwise offensive, vulgar or obscene; or (ii)  the name of another person or entity; or (iii) a name that is not lawfully available for use; (iv) a name or trademark that is subject to any rights of another person or entity other than you.

3.    Representations and Warranties

3.1    The User represents and warrant to us:
 
3.1.1    that the information and documentation the User provides to us in connection with his or her application for registration is/are true complete and accurate;

3.1.2    (i) that you are an individual and (ii) you are over the age of 18 years; and (iii) that all information, documents and data you provide to us under these User Terms where requested, relates to and or belongs to you and no other party and in the case of documents are either genuine documents or true copies of genuine documents; and

3.1.3    that the User is not a consumer;

3.1.4    that the User has the legal capacity to comply with these User Terms;

3.1.5    the use of the Services by the User will not violate any applicable law or regulation;

3.1.6    that the User will not access the Services through automated or non-human means, whether through a bot, script or otherwise;

3.1.7    that the User will not use the Site and the Services to interact with a student where to do so, would breach the Children’s Online Privacy Protection Act (“COPPA”) or any other applicable law.  

3.1.8    that the User will maintain the accuracy of the information provided to us and undertakes to promptly update such registration information as necessary.

3.2     The User undertakes to us to promptly notify us of any changes to the information submitted under clause 3.1.

3.3    The User represents and warrants to us that  (i) the User is not located in a country that is subject to a United Nations (UN), European Union (EU)  or United States (US) government embargo, or that has been designated by any of them as a "terrorist supporting" country, and (ii) the User is not listed on any UN, EU or US government list of prohibited or restricted parties.

3.4    The User represents to us, that it has the competence to provide the service which it provides to a student.

4.    Use of the Site and the Services

4.1    A student may access the practice assignments given by their teacher on the Site, by downloading the App and accepting the App Terms and our Privacy Policy.       

4.2    Each User undertakes to the Company that a student will only be invited to use the App Service, by a User who is a music teacher.

4.3    Where required by applicable law, the User undertakes to the Company, to obtain any necessary parent or guardian consent prior to inviting a student to use the Service enabled by the App in accordance with applicable laws, including without limitation the Children’s Online Privacy Protection Act (“COPPA”).

4.4    The User further undertakes to the Company to only use the Site, and the Services for teaching of students to play musical instruments and for no other purpose.

4.5    The User undertakes to the Company (i) to collect and process student data as provided in clause 19 below and not otherwise and (ii) notwithstanding any other provisions of these User Terms, not to place a picture of a student in a Profile section of the Site.  

4.6    The User acknowledges and agrees that a parent who has already given the Company and/or the User permission to collect and use his child’s (being a student) personal data, is entitled to at any time; (i) to review, correct or delete the child's personal information and or (ii) discontinue the further collection or use of the child's personal data and in such event, the User must facilitate any such actions.
4.7    Subject to the User’s compliance with these User Terms, the User is granted a non-exclusive, limited, non-transferable, freely revocable by us, license to access and use the Site and the Services subject to these User Terms. The Company reserves all rights not expressly granted under these User Terms.
5.    Our Right to verify User information and to disclose User information  
5.1    We may at our option at any time require a User to promptly provide us with reasonable evidence that any information the User has given us is true and up to date and that such information is in compliance with these User Terms.

5.2    You permit and instruct us to collect information about you and in connection with your performance of these User Terms and disclose it to tax or other governmental or regulatory authorities as required by law or for compliance with our legal obligations.

5.3    A User agrees, that we have the right to disclose a User’s identity to any third party who is claiming that any items material or information uploaded by a User to our Site via the User Interface, constitutes a breach of their Intellectual Property Rights, or of their right to privacy.

 

6.    Security
6.1    A User will be required as part of the registration process to choose and input into our Site, a username and a secure password as required by our Site from time to time.  We may from time to time as part of the registration process, require a User to provide answers to specific questions (Security questions) to be used by us in order for us to verify a User’s identity in the context of our providing our Services.

6.2    A User undertakes to us to keep the password secure and confidential, not share it and immediately notify us if, a password is shared,  forgotten or you require it changed or if you suspect that the password is being used by a third party.

6.3    Each User undertakes to us not to allow any other party to access or use the Site and the Services with the User’s unique username, password, or other security code.

6.4     Each User undertakes to us to ensure that each such password shall be changed where required by us or where necessary, by you.

6.5  Where an account is created for you following acceptance of your application, you undertake to us to access the account thereafter using the password and username only, but subject to the provisions of this clause 6 as a whole.

6.6    A User who has already registered on our Site and who has paid the required Subscription, must access the Site through the Log-in section of the Site.

6.7    Each User is responsible to us for safeguarding the password that the User uses to access the Site and the Services and for all activities or actions under the User’s password.

 

7.    Services

7.1     Our  Services enable the User to: (i) register on the Site (if approved by us); (ii) to access and use our Site and Services; (iii) and to create a Profile; (iv) to add, organise and mark complete student assignments (v) to message students.

7.2     Each User agrees that we may refuse to act on any instruction from a User that we consider: (a) is unclear (b) was not given by the User concerned (c) or where the User concerned is in breach of any of these User Terms.    

7.3    The Site, and the Services may only be available to Users on certain hours or days as determined by us from time to time.  The Company has no control over any communications network which the User may use to access the Site, and the Services.

7.4    The Company reserve the right to take some or all of its Systems and hence the Site and the Services offline as reasonably required for routine and emergency maintenance or repairs. The Company will give you as much notice of such downtime as is reasonably possible. Additionally all communications using the internet may be affected by events outside our reasonable control.

7.5    US Users
7.5.1 In respect of Users resident in the US, we reserve the right to change, modify, or remove the contents of the Services at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Services. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Services.
7.5.2 We cannot guarantee the Services will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Services, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Services at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Services during any downtime or discontinuance of the Services. Nothing in these User Terms will be construed to obligate us to maintain and support the Services or to supply any corrections, updates, or releases in connection therewith.
7.6    The information provided when using the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.

7.7    The Services are not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use the Services. You may not use the Services in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
8.    Payment for Subscriptions and refunds

8.1    Access to and use of our Site and Services is conditional on the User, paying to us, the Subscription chosen by the User and also paying the applicable Tax thereon, in each case in advance.     

8.2    Payment for Subscriptions by Users can be effected through Stripe where indicated on the Site but subject to the Stripe terms and conditions and the provisions of the Stripe privacy notice/policy.

8.3    Subscriptions may be purchased are for that period or those periods as set out on the Site.

8.4    It is the User’s responsibility to update and maintain changes to his or her account on our Site. Each Subscription is for a single user only. We may cancel or suspend a User’s account, if the User share his or her access rights with any third party, or attempts to allow any third party to avoid our control of access to our Site and our Services.

 

 

8.5    A User can discontinue use of the Site and Services at any time by serving notice on us in accordance with clause 14. In such event, no refund will be due to the User for the period from the date of termination to the date that the User has paid for under his or her Subscription.

9.    Amendments to the User Terms

9.1    We may make changes to these User Terms (to include the Privacy Statement and the Cookies Policy) from time to time and will take steps to bring any such changes to a User’s attention (such as by placing a notice of the change on a prominent position on the Site, together with the amended User Terms).  

9.2    It is the User’s responsibility to check these User Terms each time we post amendments thereto to ensure that he she or it agrees with them, and the User’s continued use of the Site after any change to these User Terms will be deemed to be his or her acceptance of the changes.  A User’s continued use of the Services after the date any such changes become effective constitutes the User’s acceptance of the new User Terms. If the User does not wish to accept the new User Terms, the User should discontinue the use of the Services.

10.    Term and Termination

10.1     These User Terms in respect of a User shall take effect from the time of Site access by the User, after the Subscription has been paid and shall continue in full force and effect until the expiration, suspension or termination of the User’s Subscription.     

10.2    The Company may suspend an individual User’s access to the Site and the Services and also remove a User’s Profile if we become aware, or have reason to believe, that information the User provided to us or as set out in the User’s Profile, is not true or up to date or that the Profile or the actions of the User do not comply with these User Terms, or is or are otherwise unlawful.

10.3    The Company may terminate a User’s access to the Site and Services, if the Company (i) determines that the User’s access and or use of the Site and Services, constitutes a breach of any of these User Terms; or (ii) If a complaint received by the Company from a student related to the User is not resolved within a reasonable period of time as we determine and is such as to damage our goodwill our reputation; or (iii) reasonably considers that our continuing to provide access to the Site and the Services to the User could expose the Company or our Site or Services to disrepute, contempt, scandal or ridicule, or would tend to shock, insult or offend the public or reflect unfavourably on our Site or our name or our Services or our reputation or on other Users using our Site and our Services; or (iv) is required by any governmental or regulatory authority to do so; or (v)  reasonably determines, or receive information or notice from the Irish Revenue or any tax authority, that you are not meeting your tax obligations; or (vi) has a right to do so under any other provision of these User Terms.
10.4    If the Company terminates a User’s  access to the Site and Services, the Company shall be entitled to take one or more of the following actions (i) terminate and delete your account; (ii)  permanently ban you from accessing and using the Site and the Services; and/or (ii) disclose any User Content to appropriate government authorities and or (iii) delete your Profile ( where you have created one on the Site).
10.5    In the event of a suspension by the Company under clause 10.2 or a termination by the Company under clause 10.3, the User shall not be entitled to any refund of the User’s Subscription or any part of it.  
10.6 Upon any termination by the Company or suspension by the Company of the User, the User undertakes to the Company to stop accessing the Site and the Services.
10.7 If the Company terminates under clause 10.3, the User may not create a new account on the Site unless the User receives the Company’s permission in writing.
10.8     Term and Termination: US Users
In respect of any User, resident in the US, these Legal Terms shall remain in full force and effect while you use the Services. WITHOUT LIMITING ANY OTHER PROVISION OF THESE LEGAL TERMS, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICES (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE LEGAL TERMS OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SERVICES OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
11.    Limitations and exclusions from liability
11.1    These User Terms including any agreement formed by them with a User, set out the full extent of the Company’s obligations and liabilities in respect of the Services or the operation of access to or use of the Site and the Services.
11.2    Subject to clauses 11.2 to 11.10 inclusive and notwithstanding the unenforceability or invalidity of any other provision in these User Terms, our maximum aggregate liability in any twelve month period to a User in respect of any single event or series of events of breach whether or not connected arising out of or in connection with these User Terms, or any collateral contract, whether in contract, tort (including negligence), under statute  or otherwise, shall in no circumstances exceed a sum as equals the aggregate of the Subscriptions received by the Company from the User concerned during the six (6) months (or less if applicable) in respect of the Services provided by the Company, always provided that during the term of these User Terms, our maximum aggregate liability for physical damage to User’s property resulting from the Company’s negligence shall be a maximum of Euro 2,000. Damage to or loss of data shall not constitute physical damage to tangible property.  
11.3    The Company shall not be liable under or in connection with these User Terms for any loss of income, data, profit, revenue, business or contracts or (without limitation) any indirect or special loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract, under statute or otherwise.
11.4    We do not arrange the provision of, or provide or supply the services a User provides to students, nor do we assume responsibility for doing so. The Company has no liability to a User for any dissatisfaction, loss of enjoyment, loss, injury or damage which results from any use made by the User of the Company’s Services or from any suspension or termination by the Company of the User’s Profile, and or suspension or termination by the Company of the User’s access to the Site and Services.

11.5    The Company does not warrant that the operation of or access to the Site, and the Services will be uninterrupted or error free, nor that the Site, and or the Services will provide specific results from their respective access and use. The Site, and the Services are provided as is without warranty or guarantee. We do not offer any warranty or guarantee with regard to the results obtained or achieved from using, the Site, the Services and the Materials.

11.6    The Site, and the Services may only be available to Users on certain hours or days as determined by us from time to time.  The Company has no control over any communications network which the User may use to access the Site, and the Services.

11.7    The Site may include third party materials, submitted by certain Users. You agree that we do not have control over such third party materials and do not examine it or them, or monitor it or them, or the use to which it or they is or are put.

11.8        Any condition, warranty or other term concerning the supply, purported supply or non-supply of the Services which might otherwise be implied into or incorporated into these User Terms whether by statute (including under s 39 of the Sale of Goods and Supply of Services Act 1980), common law or otherwise, are hereby excluded to the maximum extent permissible by applicable law.

11.9        The provisions of this clause 11 shall continue to apply notwithstanding termination (for any reason whatsoever) or expiry of these User Terms and or expiry of a Subscription.

11.10.    The Company shall not be in breach of any provision of these User Terms, caused by a User’s failure to observe these User Terms or User breach of any of the User Terms.

11.11    US Users

IN RESPECT OF ANY USER RESIDENT IN THE US , IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING OR $1,000.00 USD. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

12.    Links to other sites
This Site may contain links and references to third-party sites. The linked sites are not under the control of the Company, and the Company is not responsible for the content of any linked site or any link contained in a linked site. The Company provide these links only as a convenience, and the inclusion of a link or reference does not imply the endorsement of the linked site by us. You are advised to read the terms and conditions and privacy policies of any such sites before using any of them.
13.    Proper Law and Jurisdiction
The construction, interpretation and application of these User Terms and any agreement, shall be governed by the laws of the Republic of Ireland. In using the Services, and the Site, the User agrees to submit to the exclusive jurisdiction of the courts of the Republic of Ireland, in respect of any dispute arising hereunder.
14.1    Written Communications
When the User accesses the Site or the Services or send emails to us or we email the User, the User is communicating with us electronically. The User agrees that for all purposes of the use of the Site, and the Services pursuant to these User Terms, that we can communicate with the User electronically by email or by posting notices in the User’s account on the Site or just on the Site, as the case may be and as determined by us. Each User agrees to us communicating and or serving notices on it or him or her to the most recent email address the User provided to us. The User agrees that all notices and communications that we provide to the User electronically satisfy any legal requirement that such communications to be in writing.  

14.2    Electronic Communications, Transactions and Signatures
In respect of any User resident in the US, the following applies. Visiting the Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Services, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICES. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

15.    Records and Complaints
15.1    The User undertakes to the Company to maintain on our Systems appropriate, up-to-date and accurate records:

15.1.1 (i) to enable the Company to comply with its obligations under Data Protection Legislation; and (ii) to enable the Company comply with its obligations under these User Terms and (iii) to enable the Company to exercise its rights under these User Terms;

15.1.2 to enable the User to comply with its obligations under these User Terms and to evidence its compliance with these User Terms to the Company and any relevant supervisory authority as referred to in Article 30 of the GDPR.

15.2    Subject to clause 19 (Data Protection) clause 21 (Disputes) and clauses 15.3 to 15.6 below, if the User has a complaint in relation to our Services, the User can write to us at support@vividpractice.com.  The User must do this as soon as possible but within seven days of the date of the issue which gives rise to the complaint. In doing so, we would ask the User to provide us in writing with sufficient background information for us to verify the complaint and evaluate the complaint.   
15.3    Subject to clause 19, and the provisions of this clause 15, we will endeavour to respond to any complaint as quickly as possible.  Our ability to respond will be dependent on the nature and complexity of the User’s complaint, the extent to which we can contact the User to get information on the complaint and the extent to which we need to obtain information from a third party relevant to the complaint to frame a response.
15.4    As regards complaints by students, we will tell the User if a student complains to us about the User or the User’s services.

15.5    You the User undertakes to us to deal promptly with complaints we tell you about, and any complaints you receive directly from students in a way that complies with your local consumer law.

15.6    If a complaint from a student related to you the User’s services is not resolved within a reasonable period of time and is such as to damage our goodwill our reputation, we may terminate your right to access and use our Site and Services.  

16.    Transfers and Assignments by a User

A User may not transfer or assign any of his rights or obligations under these User Terms. Any such purported transfer or assignment constitutes a breach of these User Terms.  

17.    Transfers and Assignments by us

We may transfer our rights and assign our obligations to any purchaser of our business, provided that the purchaser undertakes to observe and be bound by these User Terms.

18.    Waiver

18.1    If we fail, at any time to insist upon strict performance of any of a User’s obligations under these User Terms, or if we fail to exercise any of the rights or remedies to which we are entitled, this will not constitute a waiver of such rights or remedies and will not relieve the User from compliance with such obligations.

18.2    A waiver by us of any breach by a User will not constitute a waiver of any subsequent breach.

18.3    No waiver by us of any of these User Terms will be effective unless it is expressly stated to be a waiver and is communicated to the User in writing in accordance with clause 14 above.

19.     Data Protection

19.1    In this clause:

Company Personal Data means any personal data which the Company processes in connection with this agreement, in the capacity of a controller.

User Personal Data means any personal data which the Company processes in connection with these User Terms, in the capacity of a processor on behalf of the User, including without limitation, personal data of the User, personal data of one or more students using the App and interacting with the User on the Site and User Content.

Processor Services mean the processing of User Personal Data in accordance with this clause 19. 

19.1.2 the terms controller, data subject, personal data, processing and processor as used in this clause shall have the meanings set out in the Data Processing Legislation.

19.1.3  Each of the Company and the User undertake to the other to comply with all applicable requirements of Data Protection Legislation. This undertaking is in addition to, and does not relieve, remove or replace, a party's obligations or rights under applicable Data Protection Legislation.

19.1.4 The parties have determined that, for the purposes of applicable Data Protection Legislation:

(a) the Company acts as controller in respect of the Company Personal Data and processing activities as follows: (ai) operating and providing help desk services; (aii) monitoring and enforcing software usage restrictions; (aiii) engaging in general contract administration; and (aiv) advertising and marketing its services to potential Users, Users and students.

(b) the Company processes the User Personal Data as a processor on behalf of the Customer as follows: (bi) Subject Matter: the Company’s provision of the Processor Services and any related technical support to the User; and (bii) Duration of the Processing: from commencement of the User Subscription and until deletion of all the User Personal Data by the Company in accordance with these User Terms (biii) Nature and Purpose of the Processing: the Company will process (including, as applicable to the Processor Services, collecting, recording, organising, structuring, storing, altering, retrieving, using, disclosing, combining, erasing and destroying) the User Personal Data for the purpose of providing the Processor Services and any related technical support to the User in accordance with the provisions of this clause 19; (biv)  Types of Personal Data: the types of personal data that constitute the User Personal Data are personal data which the Company processes in connection with these User Terms, in the capacity of a processor on behalf of the User, including without limitation, personal data of the User, personal data of one or more students using the App and interacting with the User on the Site and User Content.
19.1.5 By entering into an agreement in accordance with these User Terms, the User consents to all actions taken by the Company in connection with the processing of Company Personal Data, provided these are in compliance with the then-current version of the Company’s privacy policy available at https://vividpractice.com/privacy-policy (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and these User Terms, the Privacy Policy will take precedence.

19.1.6 Without prejudice to the generality of clause 19.1.3, the User will ensure that it has all necessary appropriate consents and notices in place to enable the lawful collection of the User Personal Data by the Company for the duration and purposes of this agreement.

19.1.7  In relation to the User Personal Data, clause 19.1.4(b) sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of personal data and categories of data subject.

19.1.8 Without prejudice to the generality of clause 19.1.3 the Company shall, in relation to User Personal Data:

(a) process that User Personal Data only on the documented instructions of the User which shall be to process the User Personal Data for the purposes set out in clause 19.1.4(b) unless the Company is required by applicable Data Protection Legislation to otherwise process that User Personal Data.

(b) implement the technical and organisational measures set out on our Site to protect against unauthorised or unlawful processing of User Personal Data and against accidental loss or destruction of, or damage to, User Personal Data, which the User has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

(c) ensure that any personnel engaged and authorised by the Company to process User Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

(d) assist the User insofar as this is possible (taking into account the nature of the processing and the information available to the Company), and at the User’s cost and written request, in responding to any request from a data subject and in ensuring the User’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(e) notify the User without undue delay on becoming aware of a personal data breach involving the User Personal Data. The Company’s notification of such a breach will not be construed as an acknowledgement by the Company of any fault or liability with respect to the data breach.
19.2    Records
Where the Company is required under Data Protection Legislation to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which the Company is acting and (if applicable) of such processor’s or controller's local representative and data protection officer; and (b) make such information available to any Supervisory Authority, the User will, where requested and as applicable to the User, promptly provide such information to the Company.
19.3     Data Deletion
19.3.1 Processor Services with deletion functionality. If (a) the functionality of the Processor Services includes the option for User to delete User Personal Data; (b) the User uses the Processor Services to delete certain User personal data; and (c) the deleted User Personal Data cannot be recovered by User (for example, from the “trash”), then the Company will delete such User Personal Data from its Systems as soon as reasonably practicable, unless Data Protection Legislation require storage.
19.3.2 Processor Services Without Deletion Functionality.  During the term for Processor Services as referred to in clause 19.1.4, if the functionality of the Processor Services does not include the option for the User to delete User Personal Data, then the Company will comply with any reasonable request from  the User to facilitate such deletion, insofar as this is possible taking into account the nature and functionality of the Processor Services and unless Data Protection Legislation require storage. The Company may charge a fee (based on the Company reasonable costs) for any data deletion under this clause 19.3.2 The Company will provide the User with further details of any applicable fee, and the basis of its calculation, in advance of any such data deletion.
19.4    Deletion on User Terms Expiry.  On expiry or termination of these User Terms (when the User Subscription has expired), the User instructs the Company to delete all User Personal Data (including existing copies) from the Company’s Systems in accordance with applicable law. The Company will comply with this instruction as soon as reasonably practicable unless: (i) Data Protection Legislation requires storage; or (ii) the User takes out another Subscription which creates a new agreement between the User and the Company on these User Terms and the User confirms that the User Personal Data (including existing copies already on the Systems) should continue to be processed in accordance with this clause 19.

19.5    User Security Obligations

19.5.1  Without prejudice to the Company’s obligations under clause 19.1.8 (b) and (e):

(a) the User is responsible for its use of the Processor Services, including: (i) making appropriate use of the Processor Services to ensure a level of security appropriate to the risk in respect of User Personal Data; and (ii) securing the account authentication credentials, systems, and devices User uses to access the Processor Services; and

(b) the Company has no obligation to protect User Personal Data that User elects to store outside of the Company’s Systems.  

19.5.2 The User undertakes to the Company to be and is solely responsible for complying with incident notification laws applicable to the User as a controller and fulfilling any third party notification obligations related to personal data breach. Additionally, the User undertakes to (i) notify the Company immediately in writing if it becomes aware of: (a) the loss, unintended destruction or damage, corruption, or unusability of part or all of User Personal Data; (b) any accidental, unauthorised or unlawful processing of the User Personal Data; or (c) any personal data breach; and (ii) reasonably co-operate with the Company at no additional cost to the Company, in the Company's handling of the matter, including but not limited to: (a) assisting with any investigation;(b) taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the personal data breach or accidental, unauthorised or unlawful personal data processing.

19.5.3 The User’s Security Assessment.  The User acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of User personal data as well as the risks to individuals) the Security Measures (as defined in clause 19.1.8(b)) and as referred to in clause 19.1.8(b) provide a level of security appropriate to the risk in respect of User personal data.

20.     Indemnification

20.1 The User agrees to indemnify, keep indemnified and defend at its own expense the Company against all costs, claims, damages or expenses incurred by the User or for which the Company may become liable due to any failure by the User to comply with any of its obligations under (i) these User Terms or any of them and/or (ii) under the Data Protection Legislation and/or (iii) any applicable law to which the User is bound.

20.2 This clause 20 shall survive the expiry or termination of these User Terms howsoever caused.

20.3 Where the User is a US resident, the User agrees to  defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) your materials; (2) use of the Services; (3) breach of these User Terms; (4) any breach of your representations and warranties set forth in these User Terms; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; or (6) any overt harmful act toward any other user of the Services with whom you connected via the Services. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

21.    Disputes

21.1    The Company takes no responsibility for any dispute that may arise between Users or between a User and a student. Each of a User and a student are wholly responsible for their respective conduct and interaction with each other.

21.2    If a User has a right of action against a student, you the User agrees that you will pursue such action without reference to us and that you will not join us in proceedings you may take. You the User hereby undertakes to us, not to hold us responsible for any right of action or claim you may have against a student.

22.      Users communication with students

22.1.     A User must for the purposes of clause 19, maintain on our Systems records of its communications with those of its students who have downloaded the App and registered with the Company.

22.2    This obligation additionally helps the Company to keep a full record of all communications in relation to any transaction, in case there are any disputes.

 

 

 

 

 

23.    Use of our Site, and Services

23.1.    The Site and the Services enables the User create a User Profile as a teacher on our Site (where specified on the Site). The User represents and warrants to the Company that the User will only create a Profile of one the types approved by us in writing.

23.2     The User undertakes that the User Profile, will contain all the information about the User that is needed to comply with consumer protection law, as well as the laws on unfair commercial practices.  

23.4    The User undertakes to the Company, to ensure that the User Profile:

(a) only features high quality images and descriptions, in which the User has all the necessary intellectual property and other rights to use in this way on the Site and to license to us as set out in our use of your branding and other intellectual property rights.

(b) is in the English language and is clear and comprehensible;

 (c) is kept up to date;

(d) relate to services for which the User has the necessary qualifications only and no other services whatsoever;

23.5    Each User undertakes to the Company to only use our Site, and our Services as envisaged in these User Terms.

23.6    Each User undertakes to us to use all reasonable security practices to prevent unauthorised access or damage to our Site and our Services. These practices include but are not limited to making sure any devices he or she uses to access our Site have up to date anti-virus protection and not introducing any viruses into our Site.

23.7    The User undertakes to us:
23.7.1    not to use the Site, and or the Services to communicate anything which:
(i) is false, unlawful, misleading, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing (or advocates harassment of another person), threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable or
(ii) is patently offensive; or
(iii) would constitute, encourage, promote or provide instructions for conduct of an illegal activity, a criminal offense, give rise to civil liability, violate the rights of any party in any country of the world, or that would otherwise create liability or violate any local, national or international law; or  
(iv) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy or providing or creating computer viruses; or
(v) may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. In particular, content that promotes an illegal or unauthorised copy of another’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files; or
(vi) impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, including with us; or
(vii) is private information of any third party; or
(viii) contains restricted or password-only access pages, or hidden pages or images (those not linked to or from another accessible page); or
(ix) include or are intended to facilitate viruses, corrupted data or other harmful, disruptive or destructive files.
24     Restrictions on use of our Site and Services
24.1    The User undertakes to us at all times not to:

24.1.1 access, reproduce, download, distribute, transmit, broadcast, sell, license, alter, modify or use any part of the Services except (a) as explicitly permitted by the Services or (b) with our prior written permission and if applicable the holders of any intellectual property rights;

24.1.2    circumvent, disable, fraudulently engage, or otherwise interfere with the Services (or attempt to do any of these things), including security-related features or features;

24.1.3    copy reproduce or scrape any Profiles on the Site or collect or use any information that might identify a person (for example, harvesting usernames or faces);

24.1.4    use the Services to distribute unsolicited promotional or commercial content or other unwanted or mass solicitations (spam);

24.1.5    misuse any reporting, flagging, complaint, dispute, or appeals process, including by making groundless, vexatious, or frivolous submissions;

24.1.6    run contests on or through the Services;

24.1.7    access the Services using any automated means (such as by robots, by botnets or by scrapers);

24.1.8    access all or any part of our Site to build a product or service which competes with our Site and or our Services;

24.1.9 use our Site to provide services to third parties ( ie being any third party who is not a student registered on our Site) or allow or assist third parties to access our Site and Services.

24.1.10 create more than one account or register or seek to register on our Site under different names;

24.1.11 collect, and or process personal data, save where specifically permitted pursuant to clause 19 above;
24.1.12 conduct, facilitate, authorise or permit any text or data mining or web scraping in relation to Profiles, our Site or any of our Services provided via, or in relation to, our Site. This includes using (or permitting, authorising or attempting the use of): (a) any "robot", "bot", "spider", "scraper" or other automated device, program, tool, algorithm, code, process or methodology to access, obtain, copy, monitor or republish any portion of the Site or any data, content, information or services accessed via the same or (b) any automated analytical technique aimed at analysing text and data in digital form to generate information which includes but is not limited to patterns, trends and correlations.
The provisions in this clause should be treated as an express reservation of our rights in this regard, including for the purposes of Article 4(3) of Digital Copyright Directive (Directive (EU) 2019/790).

25.    Entire agreement

25.1    These User Terms, agreement, the App Terms,  and the policies referred to in them constitutes the entire agreement between you and us in relation to access and use of our Site, and the Services,

25.2    Both you and we acknowledge that in entering into this agreement neither of us relies on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these User Terms. Both you and we agree that neither of us shall have any claim for innocent or negligent misrepresentation based on any statement in this agreement.

26.    Compliance with the law and our mandatory policies

The User undertakes to the Company in using the Services and the Site to comply at all times with (i) the Data Protection Legislation and in particular its obligations under the Data Protection Legislation as apply to a controller and (ii)  the laws and regulatory requirements in Ireland and additionally the laws and regulatory requirements in the country from which the User accesses our Site.

27.      Survival.

Any provision of these User Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry will remain in full force and effect.

 

28.    Company Intellectual Property Rights

28.1    The Company is the owner and or the licensee of all intellectual property rights in our Site, and our Services, including all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics in the Services (collectively, the "Content"), as well as the trademarks, service marks, and logos contained therein (the "Marks").

28.2    Our Content and Marks are protected by copyright and trademark laws (and various other intellectual property rights and unfair competition laws) and treaties in the United States and around the world.

28.3    The Content and Marks are provided in or through the Services "AS IS" for your internal business purpose only. No right or licence to our Content or Marks is granted by us to the User save solely for the User to comply with its obligations under these User Terms and for the User to use our Services. Any such licence and right shall expire on the expiry of the User’s Subscription or on the termination of these User Terms howsoever caused.      

29.  User Data and Information
User Content. The User represents and warrants to the Company that the User owns all rights, title, and interest in and to the User Content or that the User has otherwise secured all necessary rights in the User Content that the User may upload to the Site or incorporate in services provided to students. As between the User and us, the User owns all right, title and interest in and to the User Content. The User grants the Company a royalty-free and sublicensable license to display, host, copy, store and use the User Content solely to the extent necessary to provide the Services to the User and to improve the Services. To the extent the User includes User Content in providing services to students, the User grants the Company a perpetual, royalty-free, sublicensable, license to display, host, copy, store and use the User Content to the extent necessary to continue to make our Services available and to improve the Services.
30. Services Management

The Company reserves the right, but without any obligation to do so:

monitor the Services for any breach of these User Terms; and

(b) take appropriate legal action against anyone who, in our sole discretion, breaches the law, including without limitation, reporting such user to law enforcement authorities;

(c) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) our Profile;

(d) in our sole discretion and without limitation, notice, or liability, to remove from the Services or otherwise disable all files and content that are excessive in size or are in any way burdensome to our Systems; and

(e) otherwise manage the Services in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site and the Services.

31.    Force Majeure

31.1    Force Majeure Event means any circumstance not within the Company’s reasonable control including, without limitation:

(a) acts of God, flood, drought, earthquake or other natural disaster;

(b) epidemic or pandemic;

(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

(d) nuclear, chemical or biological contamination or sonic boom;

(e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;

(d) collapse of buildings, fire, explosion or accident; or

(g)  any labour or trade dispute, strikes, industrial action or lockouts; or

(h) non-performance by suppliers or subcontractors [(other than by companies in the same group as the party seeking to rely on this clause); and (i) interruption or failure of utility service.

31.2.    If the Company is prevented hindered or delayed in or from performing any of its obligations under these User Terms by a Force Majeure Event, the Company shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations under these User Terms.

31.3    If the Force Majeure Event prevents, hinders or delays the Company’s performance of its obligations for a continuous period of more than thirty (30) days, the Company shall be entitled to end the performance of its obligations under these User Terms and discontinue the Services and access to the Site.

32.    Privacy Statement/Policy

We care about data privacy and security. Please review our Privacy Statement or Policy: https://vividpractice.com/privacy-policy. By using the Services, you agree to be bound by our Privacy Policy, which is incorporated into these User Terms. Please be advised the Services are hosted in Ireland. If you access the Services from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in Ireland, then through your continued use of the Services, you are transferring your data to Ireland, and you expressly consent to have your data transferred to and processed in Ireland.

33.    Copyright Infringements

We respect the intellectual property rights of others. If you the User believe that any material available on or through the Services infringes upon any copyright you own or control, please immediately notify us using to support@vividpractice.com A copy of your notification will be sent to the person provided the person is a User or a student and his or her details are provided to us by you the User. Thus, if you are not sure that material located on or linked to by the Services infringes your copyright, you should consider first contacting an attorney for advice.