Terms and Conditions

1. Definitions

In this Agreement, unless the context requires otherwise, the following expressions shall have the following meanings:

Affiliate: means any company which is the holding company or a subsidiary of the School or any other subsidiary of the School’s holding company from time to time and for this purpose “holding company” and “subsidiary” shall have the meanings ascribed to them by the Corporations Act 2001 (Cth).

Agreement: means these terms and conditions, the schedule hereto and any authorised amendments, which shall be agreed 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 Schedule A payable by the School to Vivo Miles in consideration of Vivo Miles 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 Miles Data.

Force Majeure Event: means any circumstances beyond a party's reasonable control, which shall include any telecommunications or network outages.

Initial Term: means the initial term set out in Schedule A.

Intellectual Property Rights: means all present and future rights in patents, trademarks, designs, trade or business names, domain names, software, concepts, copyright, database rights, source and object code, 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 Miles to the School to use the Licensed Materials.

Licensed Data: means the data inputted on the Vivo Miles System by the School or on its behalf (including the School’s activity reports and additional information inputted by the School).

Licensed Materials: means the Vivo Miles System, the Vivo Miles Data and Vivo Miles cards.

Licensed Purpose: means the use of the Licensed Material in accordance with Clause 3.4

School Contact: means the School’s nominated contact set out in Schedule A.

School Data: means the data inputted onto the Vivo Miles System by the School or on its behalf (including the School’s activity reports and additional information inputted by the School).

School Systems: mean the computer systems operated by or for the School and used in conjunction with the Vivo Miles System.

Services: means the services that Vivo Miles shall provide to the School under the terms of this Agreement as more particularly specified in Schedule A.

Service Start Date: means the earlier of the date specified in Schedule A or the date that Vivo Miles issues any User of the School with a password to use the Vivo Miles System.

Staff User: means an employee of the School who is given a Username and Password by the School that allows him / her access to the Vivo Miles System.

User: means an employee of the School or a student at the School’s school who is given a Username and Password by the School that allows him / her access to the Vivo Miles System.

Vivo Miles Data: means all data and/or information provided by Vivo Miles to the School from time to time in relation to the Vivo Miles System including, without limitation, all data and/or information inputted onto the Vivo Miles System by Vivo Miles, and all other data and/or information related to the Vivo Miles System other than the School Data.

Vivo Miles System: means the combined rewards database and contact management system specifically for the education industry more particularly specified in Schedule A, access to which shall be provided by Vivo Miles to the School pursuant to this Agreement.

Vivo Credits: means the credits (to be known as “Vivos”) issued to the School by Vivo Miles in return for payment. One Vivo Credit shall be equal to one Australian cent (1 cent = 1 Vivo Credit), one hundred Vivo Credits shall be issued to the School in return for one Australian dollar ($1 AUD = 100 Vivo Credits).

Year: means a period of 12 months commencing on the Service Start Date or any Anniversary Date.

2. Supply of Vivo Miles Products and Services

2.1 Vivo Miles shall provide the Licensed Materials and the Services to the School in accordance with the terms of this Agreement.

2.2 The School 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 Miles’ prior written consent.

2.3 This Agreement does not in any way limit Vivo Miles 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 School pursuant to this Agreement) directly or indirectly to any third party.

3. Intellectual Property Rights and Grant of Licence

3.1 The School hereby acknowledges that all Intellectual Property Rights in the Licensed Materials are owned by or licensed to Vivo Miles. Nothing in this Agreement shall operate to transfer any Intellectual Property Rights in the Licensed Materials to the School.

3.2 All Intellectual Property Rights in the School Data are owned by or licensed to the School. Nothing in this Agreement shall operate to transfer any Intellectual Property Rights in the School Data, which shall remain vested in the School or its licensors. The School hereby grants to Vivo Miles a non-exclusive, non-transferable, revocable licence to use the School Data for the term of this Agreement solely for the purposes of Vivo Miles proper performance of its obligations under this Agreement.

3.3 The School warrants that:

(a) the Licensed Data and Vivo Miles’ use of the Licensed Data will not infringe the Intellectual Property Rights of any person; and

(b) it has the necessary rights to grant the licences as provided for in clause 3.2.

3.4 In consideration of Vivo Miles grant of the Licence, the School agrees to comply with the terms of this Agreement.

3.5 Vivo Miles hereby grants to the School a non-exclusive, non-transferable licence to use the Licensed Materials for the term of this Agreement.

3.6 Vivo Miles reserves the right to revise or amend the format and/or content of the Licensed Materials from time to time but shall, if possible, provide the School with advance written notice of any such changes. If Vivo Miles does so amend the format and/or content of the Licensed Materials, it shall attempt to ensure that there is no adverse change in the content, quality or performance of the Licensed Materials.

3.7 Vivo Miles reserves the right to suspend the School’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 Miles shall inform the School in writing of such suspension of the School’s access. If such suspension continues for more than 30 days, the School shall be entitled to terminate this Agreement forthwith by notice in writing to Vivo Miles. Vivo Miles shall, in the event of termination under this Clause 3.7 and provided the School is not at fault, without prejudice to any of the School’s other rights and remedies arising under this Agreement refund to the School 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).

3.8 The Licence is limited to the number of Users specified in Schedule A, as such number may be varied from time to time in accordance with the provisions of this clause 3.8. All Users shall be allocated with a unique User name and password in accordance with clause 8 below. Vivo Miles shall forthwith increase the number of permitted Users on receipt of written request from the School. The School shall pay for such additional users at the rates set out in Schedule A (including on a pro-rata basis for the period up to the next Anniversary Date). The School shall be entitled to reduce the number of concurrent Users licensed under this Agreement upon each Anniversary Date by giving 30 days’ prior written notice. In that situation, the Charges shall be proportionately reduced to take account of the reduction in the number of permitted users.

3.9 In the event that any User ceases to be a student at the school of the School, or if the School wishes to replace any individual User, it shall notify Vivo Miles in writing and may nominate an alternative person to become a User. On receipt of such notice, Vivo Miles shall immediately cancel the relevant User name(s) and password(s) and (where a new person is nominated by the School) shall issue to the new person a fresh User name and password to allow that person to gain access to the Service.

3.10 The School shall be liable for any failure by any Staff User to comply with the terms of this Agreement.

3.11 Each User may use the Licensed Materials provided that any and all Intellectual Property Rights shall remain with Vivo Miles. The School may not copy, alter, vary or modify or transfer use of the Licensed Materials to any third party unless Vivo Miles has given its prior written consent.

3.12 Save as expressly permitted hereunder and to the extent permitted by law, the School shall not knowingly copy, alter, vary or modify the Licensed Materials or in any way affect or infringe Vivo Miles Intellectual Property Rights, or enter into an arrangement, agreement or understanding which would or might allow or encourage a third party to do so.

3.13 The School shall promptly notify Vivo Miles in the event that it becomes aware of any unauthorised use of the Vivo Miles System or any actual or suspected infringement of any of Vivo Miles Intellectual Property Rights.

3.14 Upon expiry or termination of this Agreement, the Licence will terminate and the School (including each individual User) 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 Miles option, destroy) all copies of the Licensed Materials.

4. Client Responsibilities

4.1 The School is not entitled to resell, rent, licence, distribute or otherwise transfer or deal with the Licensed Materials on a commercial basis or otherwise, save as set out in this Agreement. The School must not use the Licensed Materials except as permitted under this Agreement, and shall not use the same for any illegal or unlawful purpose, or so as to bring Vivo Miles or its business, products or the services provided by Vivo Miles 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 School shall be responsible for ensuring that the School Systems are capable of accessing the Licensed Materials. Accordingly, Vivo Miles shall not be responsible for any failure of the School to access the Vivo Miles System due to a failure of the School Systems. Further, Vivo Miles 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 School shall not, and must do everything possible to ensure that a User does not, knowingly or negligently upload, post, publish, transmit or transfer to the Vivo Miles System any software, files or other material 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 Miles System, or adversely affects the performance or availability of the Vivo Miles 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 Miles or its subscribers or users. Vivo Miles reserves the right to remove any such software, files or material which would contravene these prohibitions.

4.4 You agree that:

(a) using the Vivo Miles System or the Licensed Materials to violate all or any legal rights of any person or company or other entity in any jurisdiction is strictly prohibited;

(b) using the Vivo Miles System in relation to crimes such as theft and fraud is strictly prohibited;

(c) using the Vivo Miles System in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy and whether such violation is by way of the installation or distribution of pirated software or otherwise, is strictly prohibited;

(d) introduction of malicious programs into Vivo Miles’ network or servers (e.g., viruses, worms, Trojan horses, e-mail bombs) is strictly prohibited;

(e) revealing Account passwords to others or allowing use of Your Account on the Vivo Miles System by others is strictly prohibited;

(f) using another person's name, username or password or otherwise attempting to gain access to the Account of any other person is strictly prohibited;

(g) using the Vivo Miles System to make fraudulent offers of goods or services is strictly prohibited;

(h) using the Vivo Miles System to carry out security breaches or disruptions of network communication is strictly prohibited. Security breaches include, but are not limited to, accessing data of which You are not an intended recipient, logging into a server or Account that You are not expressly authorised to access, corrupting any data, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;

(i) using the Vivo Miles System to execute any form of network monitoring which will intercept data not intended for you is strictly prohibited;

(j) using the Vivo Miles System to circumvent user authentication or security of any of Our hosts, networks or accounts is strictly prohibited;

(k) using the Vivo Miles System to interfere with or deny service to anyone is strictly prohibited;

(l) using any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any person's use of the Vivo Miles System is strictly prohibited;

(m) sending unsolicited email messages through or to users of the Vivo Miles System in breach of the Spam Act 2003 is strictly prohibited;

(n) using the Vivo Miles System to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages is strictly prohibited;

(o) use of the Vivo Miles System in breach of any person's privacy (such as by way of identity theft or "phishing") is strictly prohibited.

(p) use of any data mining, gathering or extraction tools in connection with the Vivo Miles System is prohibited.

(q) publicly disseminating information regarding the performance of the Vivo Miles System is prohibited.

(r) circumventing any mechanisms in the Vivo Miles System intended to increase any limit regarding use of or access to areas within the Vivo Miles System is prohibited.

(s) removing or obscuring any proprietary notice (including any copyright, trade mark, service mark, tagline) or other notices contained in the Vivo Miles System is strictly prohibited; and

(t) the School will take all reasonable steps to ensure that its Users do not act in a way that would breach this clause..

4.5 The School may place information on the Vivo Miles System only to the extent reasonably required for the purpose of receiving the benefit of the services provided under this Agreement.

4.6 Save as may be expressly stated otherwise, Vivo Miles does not monitor, approve, endorse or exert editorial control over information posted by the School, other School or third parties, and, accordingly, Vivo Miles gives no warranty, representation or undertaking in respect of such information. To the extent permitted by law, Vivo Miles shall not be liable for any loss or damage suffered by the School which arises out of or in connection with such information.

4.7 The School shall comply with all reasonable instructions as to the use of the Vivo Miles System which may be given by Vivo Miles to the School from time to time in writing or posted on the Vivo Miles System from time to time, and shall comply with all applicable laws in exercising its rights under this Agreement.

4.8 The School 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.

4.9 It is the School’s sole responsibility to put in place adequate precautions to prevent any student from gaining access to the Vivo Miles System without having secured that student’s (or that student’s parent’s) written consent to their use of the Vivo Miles System.

5. Term

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.

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 Anniversary Date, by serving written notice of termination to the other party at least 30 days prior to the last day of the Initial Term or the relevant Anniversary Date (as appropriate).

6. Payment

6.1 In consideration of Vivo Miles grant of the Licence, the School shall pay the Charges annually in advance. Vivo Miles will not supply the Licensed Materials until the School has paid the Charges.

6.2 Invoices shall be issued on the same day that the parties complete this Agreement (for the Charges relating to the first Year) or 45 days 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 School’s receipt of the invoice. Vivo Miles reserves the right to charge interest at the Commonwealth Bank of Australia base rate plus 2% per annum on any undisputed payments that are due and outstanding. In the event that the School has a bona fide dispute in relation to all or any portion of an invoice, it shall notify Vivo Miles of the dispute within fourteen (14) days of the date of the School’s receipt of the relevant invoice. The School 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 endeavours to resolve the dispute as soon as reasonably practicable.

6.4 Vivo Miles reserves the right to suspend the Licence and 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 Miles shall be entitled (but not obliged) to increase the Charges upon each Anniversary Date, after the Initial Term. Where Vivo Miles chooses so to increase the Charges it shall give the School written notice of the amount by which the Charges are to be increased no less than 45 days prior to the relevant Anniversary Date. If such increased Charges are not acceptable to the School, the School shall be entitled to terminate this Agreement pursuant to clause 5 by written notice to Vivo Miles with effect from the Anniversary Date on which such increase would have taken effect. If the School does not so terminate this Agreement, the increased Charges shall take effect from the relevant Anniversary Date.

7. Vivo Credits

7.1 The School shall purchase Vivo Credits from Vivo Miles for use exclusively on the Vivo Miles System. The School may, in its sole discretion, issue its Vivo Credits to Students. Within three days of receiving a request for Vivo Credits from the School, Vivo Miles will issue those Vivo Credits to the School through the Vivo Miles System. Having issued the Vivo Credits, Vivo Miles will send an invoice to the School for payment for the Vivo Credits. The invoice will be payable within 14 days of the date of receipt.

7.2 Vivo Credits may only be awarded to Users who are students at the school under the control of the School. When a User leaves the school of the School or ceases to be a User, for whatever reason, he / she shall no longer be entitled to use the Vivo Miles System and shall lose his / her entitlement to any Vivo Credits. It shall be the School’s sole responsibility to inform its Users that any Vivo Credits awarded to a User must be spent before the User leaves the school and can only be redeemed while the student is a User. If a User leaves the school with unspent Vivo Credits then those Vivo Credits will be void.

7.3 If the School validly terminates the Agreement or the Agreement expires or is otherwise terminated then:

(a) the School can redeem Vivo Credits that have not been issued to Students for Vivo rewards; and

(b) Students can redeem Vivo Credits that have been issued to those students for Vivo rewards

within 90 days of the termination. Vivo Credits not redeemed within that time are forfeited

7.4 There are no cash refunds for Vivo Credits

7.5 Student Users are not allowed to transfer Vivo Credits between one another. Users are not entitled to redeem Vivo Credits for money.

7.6 A User is entitled to use his / her Vivo Credits to order products or services from the Vivo Miles website including NBCS provided shop items. These products or services may be sent to the User by Vivo Miles or Vivo Miles may send the User a voucher for the value of the Vivo Credits which may be exchanged with a third party for a product or service advertised on the Vivo Miles website.

8. User Names & Passwords

8.1 Vivo Miles shall allocate to the School unique passwords and User names necessary for the number of concurrent Users. Vivo Miles 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 School or with immediate effect if Vivo Miles 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 School agrees that:

(a) its Users shall not disclose the password or identifier to anyone without Vivo Miles prior consent;

(b) it shall notify Vivo Miles immediately if it becomes aware that a password or identifier has become known by anyone not authorised by Vivo Miles to use the Vivo Miles System, in which case Vivo Miles shall be entitled to cancel that password or identifier and issue new ones as Vivo Miles shall see fit; and

(c) it shall indemnify Vivo Miles for all losses, damages and costs suffered or incurred by Vivo Miles (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 School’s breach of clause 8.2(a) above.

9. Vivo Miles Warranties and Disclaimers

9.1 Vivo Miles shall use reasonable skill and care in the performance of its obligations under this Agreement. Vivo Miles 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 Miles gives no warranty:

(a) as to the accuracy, completeness or suitability of the Licensed Materials or any of them, and the School 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 School Systems.

9.3 Vivo Miles shall not be responsible for any errors or omissions in the Licensed Materials or for any technical problems you 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. For the sake of clarity, any statutory warranties that cannot be excluded remain in force.

9.5 Vivo Miles 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 Miles websites.

9.6 Vivo Miles is not responsible for content on the internet or world wide web pages outside the Vivo Miles websites. As a convenience to the School, the Vivo Miles websites may include links to sites on the open web and which are beyond its control. Vivo Miles makes no representations as to the quality, suitability, functionality or legality of any sites to which the Licensed Materials, Vivo Miles websites or email alerts link, and you waive any claim you might have against Vivo Miles with respect to such sites.

9.7 Vivo Miles makes no representation that materials on the Vivo Miles website or in the Licensed Materials are appropriate or available for use in locations outside the United Kingdom or Australia, and accessing the Vivo Miles websites from territories where its contents are illegal or unlawful is prohibited. If you choose to access the Vivo Miles websites from locations outside the United Kingdom or Australia, you do so on your own initiative and are responsible for compliance with local laws.

9.8 If the recipient of any of our services is found to be a consumer under Australia’s Consumer Law, then our goods and services come with guarantees that cannot be excluded under those laws. For major failures with the service, you are entitled to cancel your service contract with us; and to a refund for the unused portion, or to compensation for its reduced value.

9.9 You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service’.

10. Intellectual Property Rights Indemnity

10.1 Nothing in the Agreement transfers any Intellectual Property Rights in the Licensed Materials from Vivo Miles to any party.

10.2 Save as provided in clause 10.4, Vivo Miles agrees to indemnify and defend the School 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.

10.3 Save as provided in Clause 10.4, in addition to Vivo Miles’ indemnity obligations under Clause 10.1, should the School’s use of the Licensed Materials be determined to have infringed, or if, in Vivo Miles’ reasonable judgement, be likely to infringe any Intellectual Property Rights, Vivo Miles may at its option and expense:

(a) procure for the School 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 School’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 Miles finds commercially reasonable, then Vivo Miles may terminate this Agreement, and the School shall on receipt of written notice from Vivo Miles to do so immediately cease to use and deliver up (or destroy at Vivo Miles’ option) the Licensed Materials. In such circumstances and without prejudice to any of the School’s other rights and remedies arising under this Agreement Vivo Miles shall refund any Charges paid under this Agreement which relate to a period after the date on which the School’s use of the Licensed Materials ceased.

10.4 The indemnity under Clause 10.2 shall not apply to any allegation of infringement to the extent that it is due to third party products or services or to the School having used the Licensed Materials (a) in a manner not contemplated by this Agreement; or (b) in breach of this Agreement.

10.5 The indemnity contained in Clause 10.2 is contingent upon: (a) the School promptly notifying Vivo Miles in writing of any claim that may give rise to a claim for indemnification under clause 10.2(b) Vivo Miles being allowed to control the defence and settlement of such claim; (c) the School co-operating (at its own expense) with all reasonable requests by Vivo Miles in defending or settling a claim, and (d) the School not having made or making an admission or settlement with the third party without the prior written consent of Vivo Miles (such consent not to be unreasonably withheld or delayed).

11. Data Protection

11.1 For the purposes of this Clause 11, “personal information” , “agency” and “Australian 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 Data, the School shall have access to and shall process personal information that is subject to the provisions of the Act; and

(b) Vivo Miles’ provision of the Services may require Vivo Miles to process personal information.

And in either case the parties agreed that they will comply with all obligations imposed upon them pursuant to the Act. .

11.2 Vivo Miles acknowledges that it is part of the Vivo international group of companies, some of whom do business in the European Union. Although Vivo Miles does not anticipate collecting or processing information from persons in the European Union, insofar as the General Data Protection Regular applies to Vivo Miles in Australia, Vivo Miles warrants that is shall act in accordance with the requirements of that Regulation.

11.3 The School hereby authorises Vivo Miles to use its Users’ personal information in the Vivo Miles System, including on databases outside of Australia, to the extent that such use is necessary in order for Vivo Miles to provide the Services.

11.4 The School acknowledges and agrees that information may be stored on databases that are located outside Australia.

11.5 Notwithstanding any other clause of this Agreement Vivo Miles acknowledges and agrees to at all times act upon the rights granted to it pursuant to this Agreement in respect of the personal information of the Users in accordance with the Australian Privacy Principles (or however named) set out in Schedule 3 of the Act, as amended or replaced from time to time.

11.6 Vivo Miles 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.

11.7 Vivo Miles may provide Users’ personal information and the data generated by cookies and the aggregate information to the vendors and service agencies that Vivo Miles 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.

11.8 The School 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 Miles System have consented to Vivo Miles processing, using and disclosing of their personal data to the extent necessary for Vivo Miles to comply with its obligations or exercise its rights 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.

11.9 Vivo Miles 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.

11.10 Vivo Miles may collect personal details from the School or the Users through the use of cookies when they access the Licensed Materials. Vivo Miles warrants that it shall obtain and maintain throughout the term of this Agreement all registrations and notifications that it is obliged to obtain and maintain pursuant to the Act in respect of its performance of this Agreement.

11.11 To the extent that Vivo Miles 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 Miles 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 School's reasonable written instructions from time to time and (c) comply with obligations equivalent to those obligations imposed on an agency by the Act.

11.12 To the extent that the School processes personal information in the capacity of an agency during the course of its performance of this Agreement, the School 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 Miles’ reasonable written instructions from time to time and (c) comply with obligations equivalent to those obligations imposed on an agency by the Act.

11.13 Vivo Miles shall indemnify and hold harmless the School 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 Miles.

11.14 The School shall indemnify and hold harmless Vivo Miles, against any losses, costs and expenses incurred by any of the foregoing arising out of any breach of this clause 11 by the School including, but not limited to, any failure by the School to obtain the Users’ consent to Vivo Miles processing of their personal information.

11.15 Vivo Miles acknowledges its obligations in relation to the mandatory reporting requirements set out in the Privacy Act. If the School becomes aware of an actual or potential data breach of information stored by Vivo Miles, it will notify Vivo Miles and fully co-operate in relation to the reporting and remediation of the breach. If the breach has been perpetrated by the School or its students, employees or agents, the School shall indemnity Vivo miles in relation to any loss suffered, penalty or damages so arising.

12. Confidentiality

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. Liability

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 Vivo Miles’ liability under the indemnity in clause 10.1 (Intellectual Property Rights Indemnity) or clause 11.10 (Data Protection).

13.3 Subject to clause 13.1 and 13.2 above and clause 13.5 below, Vivo Miles’ total liability to the School 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 AUD $25,000 or the Charges paid by the School in respect of the Year preceding the date on which the cause of action arises, whichever shall be the greater. Nothing in this clause shall apply to prevent the School from:

(a) raising any defence in respect of a claim made against the School by Vivo Miles; or

(b) making any claim for contribution at common law against Vivo Miles in respect of a liability of the School to a third party.

13.4 Subject to clause 13.1 above and clauses 13.5 and 13.6 below, the School’s total liability to Vivo Miles 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 AUD $25,000 or the Charges paid by the School 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 School’s liability to pay Charges.

13.5 Neither party shall be liable to the other party for any 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 either parties liability under clause 11, or Vivo Miles liability under clauses 9.8 and 9.9.

14. Termination

14.1 If Vivo Miles reasonably suspects that the School or any User is in breach of the Agreement, Vivo Miles may immediately suspend the provision of the Licensed Materials either to that particular User or to the School as a whole upon written notice to the School, provided that such notice shall give reasonable details of the suspected breach, shall include evidence of the grounds for Vivo Miles’ suspicion and that Vivo Miles shall forthwith provide to the School on request any further information reasonably requested by the School as evidence of the basis of Vivo Miles’ conclusions.

14.2 In the event of any suspension of the Licensed Materials pursuant to clause 14.1, Vivo Miles 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 Miles 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 ; 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 School shall immediately cease to use the Licensed Materials. A duly authorised officer of the School shall provide written confirmation to Vivo Miles within 14 days of the date of termination that the School has done so and shall deliver up (or destroy at Vivo Miles’ option) the Licensed Materials.

15. Assignment and Sub-Contracting

15.1 The School shall be entitled, without Vivo Miles’ 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 School and the School 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 Miles. Vivo Miles consent to such assignment or transfer shall not be unreasonably withheld or delayed.

15.2 Vivo Miles 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 Miles 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 School. The School’s consent to such assignment or transfer shall not be unreasonably withheld or delayed.

15.3 Vivo Miles is permitted to subcontract the performance of any of its obligations under this Agreement to a third party on condition that:

(a) Vivo Miles shall at all times remain liable to the School for the performance of obligations under this Agreement; and

(b) Vivo Miles 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. Notices

16.1 All notices to be sent from one party to the other in connection with the Agreement shall be delivered by hand, sent by post, emailed 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 Miles is as follows:

Vivo Rewards Limited

6-8 Cole Street

London

SE14YH

United Kingdom

au-support@vivoinspire.com

16.2 It shall be the School’s responsibility to notify Vivo Miles in accordance with Clause 16.1 of any change of name or other details shown on Schedule A.

16.3 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.

17. Force Majeure

17.1 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 17.

17.2 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.

17.3 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.

18. Waiver

18.1 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.

18.2 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.

18.3 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.

19. Severance

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.

20. Entire Agreement

This Agreement (including the schedule hereto and any referenced documents) forms the entire agreement between the parties in respect of the subject matter of this Agreement.

21. Variations

No variation of this Agreement shall be effective unless made in writing, signed by or on behalf of each of the parties and expressed to be such a variation.

22. No Partnership

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.

23. Counterparts

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.

24. Governing Law and Jurisdiction

The Agreement shall be construed in accordance with and governed by the laws of New South Wales. The parties submit to the exclusive jurisdiction of the courts of New South Wales and the Federal Courts of Australia.