These Terms and Conditions and all other legal documents incorporated by reference (collectively, the “Terms”) set forth the legal contract between you as an end user, if you are accessing our System (defined below) in your individual capacity, or the entity on whose behalf you are accessing the System if you are a duly authorized manager or administrator of such entity (such individual or entity, as applicable, herein referred to as “User” or “you” or “your”), and Viventium Software, Inc., along with its subsidiaries and affiliates (“Viventium” or “we” or “our”). These Terms set forth your rights and obligations with respect to your access to and use of our products and services (the “Viventium Services”) through our websites, including, but not limited to www.viventium.com, and hcm.viventium.com, and in connection with your use of our mobile applications, whether accessed via computer, mobile device, tablet or other technology (collectively, the “System”) and any associated materials or content accessible through the System (collectively, the “Content”). If you are party to a pricing agreement, statement of work, ordering document, or other service agreement between you and Viventium (an “Ordering Document”), then these Terms are incorporated into the Ordering Document and constitute a part of the agreement between you and Viventium that includes the Ordering Document (the “Agreement”).
BY BROWSING THIS WEBSITE YOU ACKNOWLEDGE AND REPRESENT TO US THAT YOU ((i) ACCEPT AND AGREE TO BE BOUND BY THESE TERMS, (ii) IF YOU ARE AN INDIVIDUAL, ARE AT LEAST 18 YEARS OLD OR ARE ABLE TO FORM LEGALLY BINDING CONTRACTS, AND (iii) IF YOU ARE AN ENTITY, ARE DULY FORMED AND VALIDLY EXISTING, AND THE PERSON ACCEPTING THIS DOCUMENT ON THE ENTITY’S BEHALF HAS THE REQUISITE POWER AND AUTHORITY TO ACCEPT THESE TERMS ON BEHALF OF THE ENTITY, (iv) AGREE TO COMPLY WITH ALL LAWS, REGULATIONS, AND COMPANY POLICIES APPLICABLE TO YOU, TO YOUR USE OF THE VIVENTIUM SERVICES, THE SYSTEM, AND THE INTERNET.
Some of Viventium’s other sites, applications, products, services and tools may have additional terms that we provide to you when you use those sites, applications, products, services or tools.
I. VIVENTIUM SERVICES
A. Access to the System
These Terms apply to all Users of the System and the Viventium Services. Viventium grants you a personal, non-exclusive, non-transferable, revocable limited license to use the System and to view or access the Viventium Services as may be set forth on the Ordering Document (the “Services”) solely for your personal or, if you are entity, internal business use, and subject to the condition that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in or access to the System, the Viventium Services, or any other Content available via the System (including any websites or mobile applications). You further agree not to modify the System, or any part thereof, in any form or manner, nor to use any modified versions of the System or the Viventium Services, for any reason whatsoever, without the express written consent of Viventium. No commercial use or redistribution of any Content, materials, or information contained on or offered through the System or the Viventium Services is permitted, unless expressly specified in a prior agreement between you and Viventium.
As a condition of your use of the System (including the Services), you agree that you will not use the System for any purpose that is unlawful or prohibited by these Terms. Access to and use of password protected and/or secure area of the System is restricted to authorized Registered Users only, subject to the additional terms and conditions in the Registered User Section below. Unauthorized access to such areas is prohibited.
B. Ownership of the System and Data
As between you and us, we and/or our vendors and suppliers, as applicable, retain all right, title and interest in and to the System, the Viventium Services, the Content and all documentation, materials, and tools provided by Viventium, as well as all intellectual property and other proprietary rights in or to any of the foregoing.
The System as a whole is copyrighted as a collective work, and individual works or content appearing on or accessible through the System owned by or licensed to Viventium or its content providers are likewise subject to copyright protection domestically and internationally. You must abide by all copyright notices, information, or restrictions contained in or displayed on the System or the Viventium Services. Certain of the names, logos, distinctive features, source identifiers and other materials displayed on the System or in the Viventium Services, including its “look and feel”, constitute trademarks, trade names, service marks, trade dress or logos (“Marks”) of us or other entities. All Marks not owned by Viventium that appear on the System are the property of their respective owners. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities. Unless you first obtain the copyright owner’s prior written consent, you may not copy, distribute, publicly perform, publicly display, digitally perform (in the case of sound recordings), or create derivative works from any copyrighted work made available or accessible via the System or the Viventium Services. Except for the rights expressly licensed to you under the Terms or the Agreement, as applicable, no rights in or to the System, the Viventium Services, the Content or any documentation, materials, and tools provided by Viventium are granted, transferred, licensed, or assigned to you, whether by implication, estoppel, or otherwise, and all such rights are expressly reserved to Viventium and its licensors.
Notwithstanding anything to the contrary in these Terms, Viventium will own all right, title and interest in and to the following (collectively, “Performance Data”): (a) data regarding the provision or performance of the Viventium Services and the System (including, without limitation, data regarding the performance of the hardware, software, and networks used to provide the Viventium Services and the System); and (b) aggregated and anonymized data regarding the use of the Viventium Services and the System (including, without limitation, data submitted or created in the use of the Viventium Services and the System under these Terms, provided that such data is aggregated and does not identify User or any individual). For clarity, Performance Data is confidential information of Viventium, and these Terms do not restrict the use or disclosure of Performance Data by Viventium.
C. Privacy
In the course or accessing and/or using the System and the Viventium Services, we may obtain information about you or you may be required to provide certain personal information to us. Your and your employees’ personal information submitted to the System in connection with the Services will be protected by security measures consistent with the measures utilized by Viventium to protect the personal information of Viventium employees, and consistent with applicable state and federal laws. Please review our Privacy Policy for a description of our privacy policies and practices.
As used in this paragraph, the terms “Sell,” “Share,” “Personal Information,” “Business Purpose,” and “Commercial Purpose” shall have the meanings given in the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 and its implementing regulations (“CCPA”). This paragraph shall not limit Viventium’s right to use Personal Information in any manner permitted for “service providers” under the CCPA. Viventium will not: (a) Sell or Share any Personal Information; (b) retain, use, or disclose any Personal Information (i) for any purpose other than for the Business Purposes set forth in the Agreement, namely payroll processing and related services, including for any Commercial Purpose other than the Business Purposes set forth in the Agreement, or (ii) outside of the direct business relationship between User and Viventium; or (c) combine Personal Information received from, or on behalf of, User with Personal Information received from or on behalf of any third party, or collected from Viventium’s independent business activities, except to perform any Business Purpose permitted by the CCPA. The parties acknowledge that the Personal Information disclosed by User to Viventium is provided to Viventium only for the limited and specified purposes set forth in the Agreement. Vendor will comply with applicable obligations under the CCPA and provide the same level of privacy protection to Personal Information as is required by the CCPA, including by assisting User in responding to consumers’ CCPA requests. Viventium shall promptly inform User of any consumer requests related to User Personal Information. User has the right to take reasonable and appropriate steps to help ensure that Viventium uses the Personal Information in a manner consistent with User’s obligations under the CCPA. Viventium will notify User if it makes a determination that Viventium can no longer meet its obligations under the CCPA. If Viventium notifies User of unauthorized use of Personal Information, including under the foregoing sentence, User will have the right to take reasonable and appropriate steps to stop and remediate such unauthorized use, as agreed upon by the parties in writing. This paragraph shall apply only to any Personal Information that is subject to the CCPA. Nothing in this paragraph shall limit Viventium’s right to use aggregate, deidentified, and/or anonymized information.
D. Services and Agency.
You acknowledge and agree (i) that Viventium is not providing legal, financial, benefits, or tax advice to you, and you acknowledge that you are solely responsible for the timely filing of all payroll and other tax returns and the timely payment of all payroll and other taxes for your employees (if applicable); (ii) certain Services or components of the System will be provided by third parties, other than Viventium and Viventium will not be liable for Services or System components provided by such third parties; and (iii) certain Services require certain power of attorney, ACH or other authorizations from or by you in favor of Viventium and you will timely execute or cause to be executed such power of attorney, documents, instruments or other authorizations that are reasonably required by Viventium to provide the Services, the execution and delivery of such will be a condition to Viventium’s obligation to provide such Services. Your access and use of third party services may be conditioned upon your approval of additional terms and conditions and/or your entry into an agreement directly with the third party providing such services.
For each User that is an entity, such User hereby appoints Viventium as its agent for the transfer of monies, including payroll and related payments, from the User to those persons designated as payees (the “Payees”). User authorizes Viventium to process book entries to and from the bank account listed on the Direct Deposit Service Agreement (if applicable), or otherwise communicated by User to Viventium, for the purpose of making such transfers, any related corrections and adjustments and collection of fees and charges and to process book entries to and from the Payees designated bank accounts for the purpose of making such transfers and any related corrections and adjustments, all as further set forth herein and in the applicable Viventium policies and procedures in effect from time to time.
Certain Services are provided in accordance with the Viventium operating procedures as in effect from time to time (the “Viventium Operating Procedures”), a copy of which is available upon request to initwithyou@viventium.com. Viventium may update the Viventium Operating Procedures from time to time, and updates will be made available upon request to the email address above.
E. Fees, Payments, and Taxes.
In consideration of and in exchange for the Services provided by Viventium to each User that is an entity, such User agrees as set forth in this Section E.
You hereby agree to pay to Viventium the fees (the “Fees”) previously agreed upon by you and Viventium orally, in writing, or through prior course of dealings, subject to customary adjustments and increases. Any and all amounts payable by you to Viventium pursuant to this Agreement will be paid to Viventium by direct ACH (Automated Clearing House) debit when due, which date will be on or prior to the first Business Day of each month, unless otherwise set forth in the Ordering Document or Electronic Invoice Payment Agreement. “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York, are authorized or required by law to close. You hereby agree to reimburse Viventium for all reasonable costs and expenses incurred (including any fees for insufficient funds and reasonable attorneys’ fees) in collecting any Fees or in connection with providing the Services. Viventium may charge you interest on the outstanding balance of any overdue fees, charges or expenses at a rate equal to 1.5% per month or the highest rate permitted by applicable law, whichever is lower. You hereby authorize Viventium to cause your bank to reverse any wires, payments or deposits (including payroll or tax payments) made on your behalf if Viventium determines that your account(s) do not have sufficient funds to meet your obligations under this Agreement or in connection with the Services. The applicable Fees for the Services may be increased by Viventium on an annual basis.
Your hereby acknowledge and agree that certain exception fees may be incurred in connection with your use of the Services, such fees may include but not be limited to fees for NSF, inactivity fees (for any of your divisions that do not process payroll in a prior month, unless marked “seasonal”) and other one-time service fees (collectively “Exception Fees”) which shall be billed consistent with the then-current fees published by Viventium for such Exception Fees.
You hereby agree to pay and indemnify and hold Viventium harmless from any and all taxes (including any interest, additions to tax or penalties imposed thereon and with respect thereto) imposed on the Services, Fees or other amounts which are payable to Viventium pursuant to this Agreement.
F. General Restrictions on Use
In connection with your use of the System you agree not to:
- circumvent or manipulate any applicable fee structure, billing process, or fees owed either to us or to our third party providers;
- use the System or the Viventium Services for illegal purposes or for promotion of dangerous activities;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted or received;
- upload, post, email, transmit or otherwise make available any content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
- violate any local, state, national or international law, including, but not limited to intellectual property laws, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any other regulations having the force of law;
- stalk, harass or harm another individual;
- impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
- provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act;
- interfere with or disrupt the System, the Viventium Services or servers or networks connected to either, or disobey any requirements, procedures, policies or regulations of networks connected to the System or the Viventium Services;
- generate unsolicited email advertisements, chain letters, junk mail, or spam or allow, enable, or otherwise support the transmission of spam or other mass unsolicited, commercial advertising or solicitations via e-mail;
- attempt to gain unauthorized access to the System, other accounts, computer systems, or networks connected to the System through hacking, password mining, phishing or any other means, obtain or attempt to obtain any materials or information through any means not intentionally made available through the System or use any materials or information obtained through any means not intentionally made available through the System;
- upload, post, email, transmit, distribute or otherwise make available any material that contains viruses, computer code or any other technologies that may harm us or the interests, information or property of Users or limit the functionality of any software, hardware or other equipment; or
- circumvent, disable or otherwise interfere with security-related features of the System or Viventium Services or features that prevent or restrict use or copying of any Content or enforce limitations on use of the System or Viventium Services.
Please be aware that it is a federal crime and a violation of 18 U.S.C. § 1030 (The Computer Fraud and Abuse Act) to intentionally access a computer without authorization and to knowingly cause damages.
G. Registered Users.
In order to access and use the Services available to a Registered User, you are required to set up or, if you are an individual, have your employer set up an account directly with Viventium. When an account is set up, you are required to enter your username or email address (“User ID”) and password to access the Services (your User ID, password, and account information collectively your “Account”). You are solely responsible for maintaining the confidentiality of your Account, and warrant that you will not share your Account with any third party. To avoid unintentionally allowing third parties to access your Account, you agree to access the Viventium Services using an original password that you have not previously used on any other website or mobile application, and you further agree not to reuse your Viventium Services password on any other websites or mobile applications. You are solely responsible for any and all use of your Account and you agree (i) to be responsible for any act or omission of any users accessing the System or Services under your Account that, if undertaken by you, would be deemed a violation of these Terms, and (ii) that such act or omission shall be deemed a violation of these Terms by you.
You are required to notify us immediately if you become aware that your Account is being used without authorization. You agree not to register for an Account on behalf of an individual other than yourself, or register for an Account on behalf of any group or entity unless you are authorized to bind such person, group or entity to these Terms. By registering another person, group or entity you hereby represent that you are authorized to do so. Individuals and/or entities whose access to the System or use of the Viventium Services have previously been terminated by Viventium may not register for a new account, nor may designate other individuals to use an account on its or your behalf. Notwithstanding the generality of the foregoing, you hereby expressly permit Viventium or its authorized contractors and partners to access your Account in order to investigate and diagnose actual or potential defects or other technical problems with the System and to audit the System or to investigate security risks or fraud. When notified by Viventium that Viventium has identified or suspects security risks or fraudulent activity associated with your account or an account you have registered for a group or entity, it is your responsibility and that of your employer to promptly investigate the unusual activity, to resolve security issues on your system, to inform Viventium of the findings of your investigation and to bear any losses associated with misuse of or intrusion into your system.
You agree to register using your real name and you agree that any information you submit about yourself is truthful and accurate. You warrant and represent that all information you provide to us as part of your registration is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it true, accurate, current and complete. If we believe or suspect that such information is untrue, inaccurate, not current or incomplete, we may deny or terminate your access to the System or Viventium Services (or any portion thereof) and any license(s) to the System or Viventium Services.
H. Age Restriction
If you are an individual, you affirm that you are either 18 years of age or older, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, you affirm that you are at least 13 years of age. If you are under 13 years of age, you may not use the System.
I. Submissions
Subject to our Privacy Policy, any information, communications, or material of any type or nature that you submit to the System (or to any of our pages on a social media platform or other website) by e-mail, posting, messaging, uploading, downloading, or otherwise (collectively, a “Submission”) is done at your own risk and without any expectation of privacy. Viventium does not own any Submissions provided via the System. However, by inputting/submitting such Submissions you are granting Viventium a nonexclusive, irrevocable, worldwide, sublicenseable, transferable, perpetual, unlimited, assignable, fully paid up and royalty-free right to copy, publish, prepare derivative works of, distribute, process, analyze, use, modify or adapt in order to transmit, display or distribute over computer networks and in various media and commercialize, in any way now known or in the future discovered, such Submissions (or any content or materials contained therein). You hereby represent and warrant that you have the full legal right to use such Submissions and that they, and any content or material contained therein, are not confidential or proprietary to any third party, nor are you using it in violation of any law or contractual restriction.
Viventium neither actively monitors Submissions, nor exercises editorial control over any Submissions. However, Viventium does reserve the right to monitor such Submissions or other use at any time as it deems appropriate and to remove any materials that, in Viventium’s sole discretion, may be illegal, may subject Viventium to liability, may violate these Terms, or are, in the sole discretion of Viventium, inconsistent with Viventium’s purpose for the System.
You warrant that you will retain copies of all documents provided to Viventium for the longer of two years from the date such document is provided to Viventium or as long as required under applicable law.
J. Accurate Information and Review of Output
Viventium will provide the Services to you based upon information you provide to Viventium. You are responsible for the accuracy and completeness of the information you provide or which any of your employee, contractor, participant, or any other person provides to Viventium in connection with the Terms or the Agreement, as applicable, or on your behalf. You agree to timely execute and return a Power of Attorney (“POA”) and other registration forms as necessary for Viventium to provide the Services in each applicable jurisdiction and agency, and as otherwise may be reasonably requested by Viventium. You agree to immediately notify Viventium in writing of any changes to information provided to Viventium by you, by your employees, contractors, or participants, or by others on behalf of any of the foregoing. You must provide all information that you would like Viventium to use in connection with any debit, deposit, or filing under the Services no later than two Business Days in advance. Information received by Viventium before 2:00 p.m. Eastern Time is considered timely for that Business Day. You agree to promptly review all reports, records, and similar documents (each a “Deliverable”) prepared by Viventium for accuracy and completeness immediately upon receipt, electronically or otherwise, and to promptly notify Viventium of any discrepancies or issues that need to be addressed.
K. Feedback
If you submit any information to us about the System or Viventium Services, as a comment or evaluation (“Feedback”), you assign, without compensation to you, all right, title, and interest (including to any associated copyrights, patents, or other intellectual property) in all the Feedback you submit to Viventium. To the extent such rights may not be assigned in this manner, you hereby grant to Viventium an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, unrestricted license to make, use, sell, offer for sale, import, reproduce, prepare derivative works, copy perform, display, sublicense, or otherwise exploit, in any medium now known or later developed, the Feedback, without compensating you, without indicating that it is yours, and without having any obligation to you or any other person or entity. If you want to send us your feedback please send it to us by emailing privacy@viventium.com or providing it through the designated area within the System. You agree not to take any action that may undermine any feedback or ratings systems that we establish as part of the System or the Viventium Services. This includes not displaying, importing, exporting or using any feedback information off of the System
L. Additional Terms and Third-Party Sites
Without limiting the terms of the Agreement, if you subscribe to or access one or more of the services governed by additional terms and conditions listed at https://viventium.com/additional-terms-and-conditions/ (each, “Additional Terms”), then you also agree to be bound by such Additional Terms.
The System may contain links that will let you access other websites that are not under the control of Viventium. The links are only provided as a convenience and Viventium does not endorse any of these Systems. Viventium assumes no responsibility or liability for any material that may accessed on other websites reached through this System, nor does Viventium make any representation regarding the quality of any product or service contained at any such website. Viventium prohibits unauthorized links to the System, imbedding all or part of the System in another site and the framing of any information contained on the System or any portion of the System. Viventium reserves the right to disable any unauthorized links or frames. Viventium has no responsibility or liability for any material on other websites that may contain links to this System.
II. TERMINATION
Your rights under these Terms will automatically and immediately terminate if you fail to comply with your promises and obligations stated in these Terms. You understand and agree that upon termination of these Terms or your use of the Viventium Services, we retain the license rights granted to us under these Terms. Notwithstanding the foregoing, it is our policy to retain all information provided to us and stored in your Account for 30 days after the termination of your Account. After 30 days, we may delete your information from our servers except as required by law or as otherwise agreed to between you and us. You understand that if you want to use our Services after termination of your Account, you may need to re-register with us.
Without limiting other remedies, we also reserve the right to limit or partially terminate or suspend the Services and accounts, prohibit access to the System, the Services and the Content, delay or remove any Content, take technical and legal steps to keep any Users off the System if we think that they are creating possible legal liabilities, infringing the intellectual property rights of third parties, acting in violation of these Terms, or acting inconsistently with the letter or spirit of our policies.
If this Agreement is terminated by either Party, then within 30 days after the effective date of termination, you agree to pay us (i) all fees and other amounts payable under this Agreement or otherwise due by you to us based on our prior course of dealing with respect to the period preceding the date of termination and (ii) regardless of the date of termination, all fees for implementation Services identified in the Ordering Document or otherwise agreed to by you and us during our prior course of dealings.
III. DISCLAIMERS, LIMITATIONS AND EXCLUSIONS OF LIABILITY; INDEMNIFICATION
A. Disclaimer of Warranties; Warranties of User
THE SERVICES, THE SYSTEM, AND ALL INFORMATION, CONTENT, MATERIALS AND SERVICES RELATED TO THE FOREGOING ARE PROVIDED ”AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OR GUARANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON INTERFERENCE, SYSTEM INTEGRATION AND ACCURACY OF DATA. VIVENTIUM AND/OR OUR THIRD PARTY SUPPLIERS OR LICENSORS DO NOT WARRANT THAT THE SYSTEM, CONTENT OR ANY MATERIALS OR SERVICES AVAILABLE ON OR THROUGH THE SYSTEM OR THROUGH VIVENTIUM ARE OR WILL BE ACCURATE, CURRENT, ERROR-FREE, VIRUS FREE, RELIABLE OR APPROPRIATE FOR ANY PARTICULAR USE TO WHICH YOU OR ANY THIRD PARTY MAY CHOOSE TO PUT THEM, THAT THE SYSTEM IS OR WILL BE AVAILABLE ON AN UNINTERRUPTED AND ERROR-FREE BASIS OR THAT DEFECTS WILL BE CORRECTED. THE SUBMISSION OF ANY PERSONAL INFORMATION AND THE DOWNLOAD OR UPLOAD OF ANY CONTENT THROUGH THE VIVENTIUM SERVICES AND/OR SYSTEM IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY INFORMATION OR FROM RELIANCE UPON ANY INFORMATION, AND YOU ARE ADVISED TO MAINTAIN OFFLINE BACKUP COPIES OF ALL INFORMATION. VIVENTIUM IS NOT THE PROVIDER OF, AND MAKES NO WARRANTIES WITH RESPECT TO, ANY THIRD-PARTY OFFERINGS. VIVENTIUM DOES NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE SYSTEM; AND YOU AGREE TO ASSUME THE SECURITY RISK FOR ANY INFORMATION YOU PROVIDE USING THE SERVICES.
NO REPRESENTATION OR WARRANTY IS MADE THAT THE SYSTEM OR SERVICES PROVIDE COMPREHENSIVE OR ACCURATE INFORMATION. WE RESERVE THE RIGHT TO FILTER, MODIFY OR REMOVE CONTENT, MEDIA, INFORMATION OR ANY OTHER MATERIAL FROM THE SYSTEM OR THE SERVICES AND FROM THE OUTPUT OF THE SERVICES. Viventium periodically adds, changes, improves, or updates the Content and documents on this System without notice. Viventium assumes no liability or responsibility for any errors or omissions in the Content of this System. Your use of this System is at your own risk.
You represent and warrant that you have full power and authority to enter into this Agreement and perform your obligations under this Agreement, and the execution and performance of your obligations under this Agreement will not constitute a breach of any law or regulation or contract or agreement to which you are a party or by which you are bound.
B. Limitation of Liability
USE OF THE VIVENTIUM SERVICES, THE SYSTEM, AND ANY CONTENT IS AT YOUR OWN RISK. IN NO EVENT WILL VIVENTIUM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF VIVENTIUM WAS ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF VIVENTIUM TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SYSTEM, OR THE USE OR THE SYSTEM, EXCEED THE LIABILITY CAP. THE AMOUNT OF THE LIABILITY CAP FOR USERS WHO HAVE ENTERED INTO A WRITTEN ORDERING DOCUMENT WITH VIVENTIUM EQUALS THE FEES PAID BY USER UNDER SUCH ORDERING DOCUMENT DURING THE MONTH PRECEDING THE DATE OF THE FIRST SUCH CLAIM ARISING UNDER THIS AGREEMENT. FOR ALL OTHER USERS AND IN ALL OTHER CASES, THE LIABILITY CAP IS ONE HUNDRED U.S. DOLLARS (U.S.D. $100.00). YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL TERM BETWEEN YOU AND VIVENTIUM RELATING TO THE PROVISION OF THE SYSTEM, THE SERVICES, AND ANY CONTENT TO YOU, AND VIVENTIUM WOULD NOT PROVIDE THE SYSTEM OR SERVICES TO YOU WITHOUT THIS LIMITATION. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SYSTEM OR SERVICES OR DELETION OF YOUR ACCOUNT OR CONTENT.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL VIVENTIUM OR ITS LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM FORCES OF NATURE, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EPIDEMICS, PANDEMICS, STAY AT HOME OR SIMILAR ORDERS BY GOVERNMENTAL AUTHORITIES, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES.
C. Indemnification
To the extent permitted by applicable law, you agree to indemnify and hold harmless Viventium, its officers, directors, employees and agents from and against any and all damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the System, Viventium Services, and/or the Content; (ii) your violation of any term of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Submissions or information caused damage to a third party. This defense and indemnification obligation will survive these Terms and your use of the System and/or the Viventium Services.
IV. GENERAL TERMS
A. Copyright
If you believe your copyright has been violated by Content or Third-Party Offerings accessible on the System, please contact us by email at privacy@viventium.com.
B. Modifications to Terms
We may change these Terms from time to time. Any such changes will become effective when posted on the System. If you object to any such changes, your sole recourse will be to cease using the System and the Viventium Services. Continued use of the System and/or the Viventium Services following posting of any such changes will indicate your acknowledgement of such changes and your agreement to be bound by the revised Terms, inclusive of such changes. In addition, certain features of the Viventium Services may be subject to additional terms of use. By using such features, or any part thereof, you agree to be bound by the additional terms of use applicable to such features. In the event that any of the additional terms of use governing such area conflict with these Terms, the additional terms will govern.
C. Modifications to Viventium Services
We reserve the right to modify the System and/or Viventium Services at any time without notice. If you object to any changes to the System or Viventium Services, your sole recourse will be to cease using them. Continued use of the System or Viventium Services following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Viventium Services as so modified. We also reserve the right to discontinue the System and/or Viventium Services at any time without notice. We will not be liable to you or any third-party should we exercise our right to modify or discontinue the System or the Viventium Services.
D. Disputes
These Terms will be subject to and construed in accordance with the laws of the State of New York, excluding its rules regarding conflicts of law. You agree that any claim or dispute you may have against Viventium must be resolved exclusively by a state or federal court located in Kings county, New York. You agree to submit to the personal jurisdiction of the courts located in New York for the purpose of litigating all such claims or disputes.
E. Electronic Communications
The communications between you and Viventium use electronic means, whether you visit the System or send us emails, or whether Viventium posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Viventium in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Viventium provides to you electronically have the same effect as if it were provided in writing and signed by you in ink. The foregoing does not affect your non-waivable rights. You may also receive a copy of these Terms of Use by accessing this System.
F. General Terms
Compliance with Laws. You agree to comply with all laws, rules and regulations that apply to your use of the System and the Viventium Services. You acknowledge and agree that, while the Services are designed to assist you in complying with applicable laws and governmental regulations, you—and not Viventium—will be solely responsible for (i) compliance with all laws and governmental regulations affecting your business and (ii) any use you may make of Services to assist you in complying with such laws and governmental regulations. You agree not to rely on your use of the Services in complying with any laws or governmental regulations. Unless otherwise agreed in writing by the parties, the Services will be utilized by you solely in the United States.
Nacha Operating Rules. Customer shall comply with all applicable laws, regulations, and rules related to the Automated Clearing House (ACH) Network, including but not limited to the Nacha Operating Rules (“Nacha Rules”). Customer shall be solely responsible for the accuracy and completeness of all information provided for ACH transactions. Upon request by Viventium, the customer shall promptly provide Viventium with all documentation reasonably requested by Viventium to demonstrate customer’s compliance with the Nacha Rules.
Independent Contractors. Neither you nor Viventium will at any time be deemed to be the employee, agent or legal representative of the other for any purpose. These Terms and any Agreement between you and Viventium do not constitute and will not be construed to create a partnership, joint venture, or agency relationship.
Assignment. The rights and obligations of you and Viventium will be binding upon and inure to the benefit of you and Viventium, respectively, and their respective successors and permitted assigns. You may not assign, transfer, delegate, or sublet any of your rights or obligations under these Terms or any Agreement, including involuntarily by merger or otherwise, without the prior written consent of Viventium, which will not be unreasonably withheld. Viventium will have the right to assign its rights and obligations under these Terms and any Agreement, in whole or in part. These Terms and the terms of each Agreement are intended solely for the benefit of you and Viventium and do not confer third-party beneficiary rights upon any other person or entity.
These Terms, together with any other separate agreement referred to and incorporated herein by reference, shall constitute the entire agreement between you and Viventium concerning the System and Viventium Services. No waiver of any of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Viventium’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these terms is found by a court of competent jurisdiction to be invalid, you agree that the court should endeavor to give effect to the intentions reflected in the invalid provision, and the other provisions of these Terms shall remain in full force and effect. The provisions of sections I.A, I.B, I.D, I. E., I.F, I.I, I.J, II, III, and IV will survive the termination of these Terms. You agree that any claim or cause of action related to the System, the Viventium Services, and/or these Terms must be filed within one year after such claim or cause of action arose or be forever barred.
Last Updated: Nov. 26, 2024.
