Master Terms & Conditions

Last updated – September 1, 2025. You can view our previous Terms of Service Agreement here.

These MASTER TERMS AND CONDITIONS are attached to and a part of the Ordering Document(s) (the “Ordering Document”) by and between the Viventium entity listed on your Ordering Document (“Viventium”), and the entity identified on the Ordering Document (“User”). Viventium and User are sometimes referred to collectively as the “Parties” or singularly as a “Party”.
This agreement between Viventium and User (the “Agreement”) consists of:

•    Ordering Document(s);
•    The Viventium BDB DirecTax Agreement between the Parties; 
•    The Viventium Direct Deposit Service Agreement, if any, between the Parties;
•    The Viventium Additional Terms and Conditions (currently located at https://viventium.com/additional-terms-and-conditions/); 
•    These Master Terms and Conditions, including if applicable, the Data Processing Addendum;
•    The Viventium Privacy Policy (current version located at https://viventium.com/privacy-policy/);
•    Viventium Documentation (as defined below).

Unless otherwise specifically stated therein, in the event of an explicit conflict among the terms of the Agreement, precedence will be given in the order listed above(with Order Document(s) having highest precedence); provided that the BDB DirecTax Agreement, Direct Deposit Service Agreement, and Additional Terms and Conditions shall only apply to the services provided thereunder. Viventium may modify the Agreement from time to time by posting a new version of the Agreement on its website or in the System. User’s continued use of the Services or the System into the next Renewal Term will constitute User’s agreement to the modified Agreement.

 

1.    Services and Compliance.

1.1    Grant of Use. Subject to and conditioned on User's and User's employees, consultants, contractors, and agents, who are authorized by User to access and use the Services and System under the rights granted to User pursuant to the Agreement (“Authorized User”), compliance with the terms and conditions of the Agreement, Viventium grants User a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to view, access, and use Viventium’s products and services, as set forth on the Ordering Document, (the “Services”) through Viventium’s websites and in connection with User’s use of Viventium’s mobile applications, whether accessed via computer, mobile device, tablet or other technology (the “System”), during the Term, by Authorized Users, solely for User’s internal business use. Viventium (or Viventium’s licensors) reserves all rights not expressly granted to User herein. User shall have no right to use the System for any purpose other than accessing and using the Services. 
1.2    Documentation. Viventium hereby grants User a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for User's internal business purposes in connection with its use of the Services and System. "Documentation" means any manuals, instructions, or other documents or materials that Viventium provides or makes available to User or Authorized Users in any form or medium and which describe the functionality, components, features, or requirements of the Services or System, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
1.3    Other Rights. Except as otherwise expressly provided in the Agreement, as between the Parties, Viventium has and will retain sole ownership and control over the operation, provision, maintenance, and management of the Services, System, and Documentation.
1.4    Additional Purchases. User may, from time to time, agree in writing to receive certain additional Services. If User elects to purchase any additional Services, the fees for such additional Services shall be the pricing agreed to in writing by the Parties in an additional Ordering Document.
1.5    Additional Volume. Use of the Services is subject to usage limits, which may be based on employees, users, payroll runs, or other parameters outlined in an Ordering Document or the Agreement (“Usage Limitations”). If User exceeds the Usage Limitations, the fees shall be increased at Viventium’s then-current rates, or pre-determined rates if explicitly set forth in an Ordering Document. User will be responsible for all fees due to usage that exceeds the Usage Limitations.
1.6    Audit. Viventium, or its nominee, may, in Viventium's sole discretion, inspect and audit User’s use of the Services and System under the Agreement at any time during the Term and for two (2) years following the termination or expiration of the Agreement. User shall make available all such books, records, equipment, information, and personnel, and provide cooperation and assistance, as may be requested by or on behalf of Viventium, with respect to such audit.
1.7    Third-Party Materials. Subject to and conditioned on User's and Authorized User’s, compliance with the terms and conditions of the Agreement and subject to additional terms as may apply, Viventium grants to User a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable right to view, access, and use the third-party materials and services incorporated into the Services (“Third-Party Materials”) solely for User’s internal business use. Viventium reserves the right to replace, substitute, or terminate any of the Third-Party Materials.
1.8    Third-Party Products. Viventium may make available to User certain products and services that are provided by third parties and not Viventium (“Third-Party Products”).  Viventium makes Third-Party Products available to User as a reseller and not as a licensor or sublicensor. User agrees that the  purchase or license Third-Party Products must be set forth in an Ordering Document and agrees to any additional terms governing use of such Third-Party Products. Viventium reserves the right to replace, substitute, or terminate any of the Third-Party Products at any time. Viventium has no control over the Third-Party Products and will not be liable to User for any claims or damages arising from User’s use of any Third-Party Products.
1.9    Third Party Access. User may not allow any third party to access the Services or System unless provided expressly in the Agreement or with express written permission from Viventium.
1.10    User Data.  By providing any information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from User or an Authorized User by or through the Services or System (“User Data”) to Viventium, User hereby grants and will grant Viventium a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable, license to access, use, process, copy, display, upload, perform, distribute, model, index, store, modify, create derivative works from, and otherwise use the User Data to (a) provide the Services and interoperability with Third-Party Products; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted under our Privacy Policy; (d) improve or develop the Services;  and (e) as expressly authorized by User. User understands that the technical processing and transmission of User Data may involve (1) transmissions over various networks; and (2) changes to conform and adapt to technical requirements of connecting networks or devices.  Viventium shall keep User Data in the System only as long as outlined in Viventium’s data retention policy.

2.    General Restrictions on Use

2.1    Acceptable Use. User agrees not to, and shall not permit, authorize, encourage, promote, facilitate or instruct any other person to:

(a)    copy, modify, or create derivative works or improvements of the Services, System, or Documentation;
(b)    rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, System, or Documentation to any party not contemplated by the Agreement, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(c)    reverse engineer, adapt, decode, decompile, disassemble or otherwise attempt to derive or gain access to the source code of the System, in whole or in part, or in any way attempt to violate Viventium’s intellectual property rights;
(d)    attempt to discover, access, derive or reconstruct any source code, underlying components, algorithms, source prompts, training methodologies, and/or proprietary techniques of the Services or System;
(e)    damage, destroy, disable, disrupt, impair, interfere with, or otherwise impede or harm in any manner the Services or System, or Viventium's provision of the Services or System to any third party, in whole or in part;
(f)    display or mirror the System, or the layout or design of any page on the System, including Viventium’s name and any Viventium trademark, logo, or other proprietary information, without Viventium’s prior written consent;
(g)    circumvent or manipulate, or attempt to, any applicable fee structure, billing process, or fees;
(h)    forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted or received or remove, delete, alter, or obscure any trademarks, Documentation, end user license agreement, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any origin, including any copy thereof;
(i)    upload, post, email, transmit or otherwise make available any infringing content, content that misappropriates or otherwise violates the intellectual property or proprietary rights of others, or content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
(j)    collect from or store on the System any personally identifiable information or protected health information of an individual without their express permission;
(k)    use the System or the Services for promotion of harmful, fraudulent, dangerous activities, or illegal purposes; including any of its beneficial owners or any applicable affiliated entities, shall not appear on any terrorism watch list, OFAC list, or similar list maintained by the U.S. Government, be involved, including any of its beneficial owners or any applicable affiliated entities, in a business or industry that violates federal law, including, but not limited to the Controlled Substances Act, the Bank Secrecy Act, and the Anti-Money Laundering Act of 2020
(l)    violate any local, state, national or international law, including, but not limited to intellectual property laws and regulations promulgated by any US regulatory body;
(m)    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;
(n)    upload or otherwise use the System for content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable;
(o)    stalk, threaten, attack, harass or harm another individual or party;
(p)    impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
(q)    interfere with or disrupt the System, the Services, or servers or networks connected to either, or disobey any requirements, procedures, policies or regulations of networks connected to the System or Services;
(r)    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;
(s)    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;
(t)    use the System to violate the security or integrity of any network, computer or communications system, software application, or network or computing device;
(u)    engage in a business that is under Viventium’s then existing restricted industries list;
(v)    access or use the System, Services, or Documentation for purposes of competitive analysis or otherwise analyzing the performance, capabilities, functionality, responses patterns, or output of the Services or System, reconstructing Viventium’s proprietary methods, processes, or trade secrets, or the development, provision, or use of a competing software service or product;
(w)    use prompts and completions to train AI models or to extract or replicate Viventium’s proprietary data, models, or systems;
(x)    attempt to probe, scan, or test the vulnerability of the System or network;
(y)    harvest, mine or “scrape” any data from the System; “crawl” or “spider” any page of the System or engage in any data collection or extraction methods that could be used to derive Viventium’s proprietary methods, processes, or trade secrets;
(z)    collect, record, store, analyze, or disclose Confidential Information related to the operation or outputs of the System or Services, including patterns, methodologies, response characteristics, or other proprietary elements that could reveal Viventium’s proprietary methods, processes, or trade secrets;
(aa)    take any action that may impose (as determined in Viventium’s sole discretion) an unusual or unreasonably large load on the System;
(bb)    upload, post, email, transmit, distribute or otherwise make available any material that contains viruses, computer code or any other technologies that may harm Viventium or the interests, information or property of a third party, or limit, disrupt, or destroy the functionality of any software, hardware, data, or other equipment; 
(cc)    circumvent, disable or otherwise interfere with security-related features of the System or Services or features that prevent or restrict use or copying of any content or enforce limitations on use of the System or Services; or
(dd)    otherwise access or use the Services or System beyond the scope of the authorization granted under the Agreement.

2.2    Accurate Information and Review of Output. 

(a)    User acknowledges and agrees that the Services shall be provided based on information and instructions provided by or on behalf of User and Authorized Users, and User shall review and audit its pay practices and all reports and payments made by or on behalf of User for compliance with all relevant federal, state, and local laws and regulations, including but not limited to the correct and timely filing and payment of all payroll and other taxes for its employees. 
(b)    User is responsible for the accuracy and completeness of the information User provides or which any of User’s employees, contractors, participants, or any other persons provides to Viventium in connection with the Agreement. Notwithstanding anything to the contrary in the Agreement, Viventium shall not be liable or responsible for errors or omissions arising from Viventium’s reliance upon User’s or an Authorized User’s instructions or incorrect or incomplete information provided by User or an Authorized User, or, if applicable, a third-party providing information regarding User, and Viventium is not required to independently verify or correct any such information. User agrees to immediately notify Viventium in writing of any changes to information provided to Viventium by User or any applicable third party. 
(c)    User must provide all information that User 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. User agrees to promptly review all reports, records, and similar documents 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.

2.3    User Acknowledgment. User acknowledges and agrees that (a) that the System and Services are meant for informational purposes only and Viventium is not providing legal, regulatory, financial, accounting, investment, benefits, employment, labor, tax, or any other professional advice to User or Authorized Users; (b) User is solely responsible for the timely filing of all payroll and other tax returns and the timely payment of all payroll and other taxes for User’s employees (if applicable); (c) the federal government, tribal governments, state governments or localities each may impose specific obligations pertaining to employee wage requirements, employee wage statements, overtime computation parameters, meal credit parameters, industry requirements, paystubs, employer-employee disclosures or other matters; and it remains User’s exclusive obligation to comply with applicable laws, rules, and regulations pertaining to User and/or its employees; (d) the Services or System should not, will not, and cannot be relied upon to detect or disclose errors, fraud or illegal acts of User or User’s employees, subcontractors, or agents. User understands that User is responsible for any actions taken based upon information received from Viventium, and where professional advice is needed, that User should seek independent professional advice from a person who is licensed or qualified in the applicable area.
2.4    Compliance with Laws. User agrees to comply with all laws, rules and regulations that apply to User’s use of the Services. User acknowledges and agrees that User—and not Viventium—will be solely responsible for (a) compliance with all laws and governmental regulations affecting User’s business and (b) any use User may make of Services to assist User in complying with such laws and governmental regulations. Nothing in the Services (including, without limitation, any communications from our customer support team regarding User’s use of the System or Services) should be construed as, or used as a substitute for, the advice of competent legal or applicable professional counsel. User is solely responsible for being properly registered with all applicable authorities and for obtaining and maintaining valid tax identification numbers and/or account numbers with applicable authorities. User agrees not to rely on the Services in complying with any laws or governmental regulations. Unless otherwise agreed in writing by the Parties, the Services and System will be utilized by User and User’s employees solely in the United States.
2.5    Prohibited Activity Reporting. Without limiting Section 2.8(b), if User becomes aware of any actual or threatened activity prohibited by the Agreement, User shall immediately: (a) take all reasonable and lawful measures within User’s respective control that are reasonable or necessary to stop the activity or threatened activity and to mitigate its effects; and (b) promptly notify Viventium of any such actual or threatened activity.
2.6    User Document Retention. User warrants that User 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. Viventium is not User’s official record keeper.
2.7    User Authorizations / Power of Attorney. User acknowledges and agrees that certain Services require power of attorney, ACH or other authorizations of User in favor of Viventium and User 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.
2.8    User Account. 

(a)    Authorized Users are required to enter username or email address and password to access the Services and System (User ID, password, and account information collectively “Account”). User is solely responsible for maintaining the confidentiality of User’s Account and warrants that User will not share User’s Account with any third party. To avoid unintentionally allowing third parties to access User’s Account, User agrees to access the Services and System using an original password that User has not previously used on any other website or mobile application, and User further agrees not to reuse such password on any other websites or mobile applications. User is solely responsible for all use of User’s Account by any users accessing the System or Services under User’s Account, regardless of whether User knew of or authorized such actions.
(b)    User is required to notify Viventium immediately if User becomes aware that User’s Account is being used without authorization. User agrees not to register for an Account on behalf of an individual other than User or on behalf of any group, entity, or individual unless User is authorized to do so. By registering another person, group or entity User hereby represents that User is authorized to do so. Individuals and/or entities whose access to the System or use of the 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 User’s behalf.
(c)    User hereby expressly permits Viventium or its authorized contractors and partners to access User’s Account in order to provide support, 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 User’s Account, it is User’s responsibility to promptly investigate the unusual activity, to resolve security issues on User’s system, to inform Viventium of the findings of User’s investigation and to bear any losses associated with misuse of or intrusion into User’s system.
(d)    User agrees to register using User’s Authorized User’s real names and User agrees that any information User submits about User or User’s employees is truthful and accurate. User warrants and represents that all information User provides to Viventium as part of User’s registration is true, accurate, current and complete, and User agrees to maintain and promptly update such information to keep it true, accurate, current and complete. If Viventium believes or suspects that such information is untrue, inaccurate, not current or incomplete, Viventium may deny or terminate User’s access to the System or Services (or any portion thereof).

2.9    Self-Service. User acknowledges the Services and System allow Authorized Users to input certain information into the self-service portions of the Services and System. Viventium shall have no responsibility to verify, nor review the accuracy or completeness of the information inputted into self-service portion. Viventium shall be entitled to rely upon such self-service information as if such information was provided by User directly.
2.10    SMS Messages.  Viventium may send the following types of SMS messages: (1) one-time pin or verification codes, (2) links to access or download services, (3) notifying about Account activity, (4) service alerts and (5) soliciting feedback about our customer service experience. Message frequency may vary. Standard message and data rates may apply. 

3.    Fees, Payments, and Taxes.

3.1    Service Fees. In consideration of and in exchange for the Services, User agrees to pay to Viventium the fees (the “Service Fees”) set forth on the Ordering Document(s). User shall have no right of return or refund of paid fees except as expressly provided in the Agreement. Viventium’s pricing structure and pricing is Viventium’s Confidential Information, shall be treated by User as confidential, and not shared with third parties. All amounts payable under the Agreement shall be paid to Viventium in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
3.2    Payment Method. All amounts payable by User to Viventium pursuant to the 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.  When User purchases or subscribes to a paid product that is part of the Services, or uses any Service that requires User to fund transactions, User authorizes Viventium and its designated payment processors to store User’s designated bank account information and other related information, which authorization may be documented in a standalone authorization form. User authorizes Viventium to automatically debit all applicable charges for such paid products from User’s designated payment account(s), including via ACH debit, EFT debit, BECS debit or other recognized methods of pre-authorized debit for bank accounts (“Pre-Authorized Debits”) on the date such charges become due. This authorization to initiate Pre-Authorized Debit transactions will remain in full force and effect until Viventium has received written notice from User by email at least thirty days (30) in advance of the date the applicable charges for the paid product become due. Because these are electronic transactions, these funds may be withdrawn from User’s designated bank account immediately. In the case of a Pre-Authorized Debit transaction that is rejected for insufficient funds, User understands that Viventium may at its discretion attempt to process the debit in the amount of the applicable paid product again within thirty (30) days and Viventium may separately impose a fee for each transaction returned for insufficient funds, as permitted by applicable law. User certifies that User will not dispute these scheduled transactions with such bank so long as the transactions correspond to this Agreement. 

3.3    Implementation Fees. The Implementation Fee (as defined below) is set forth on the Ordering Document.

(a)    The “Implementation Fee” shall mean the aggregate and cumulative fees for professional services to provide: (i) the loading of current year to date wages; (ii) the loading of employee demographic information, pay rates, scheduled earnings and deductions, and direct deposits; (iii) system configuration of User payroll specific rules and (iv) system navigation and payroll training. 
(b)    User agrees to pay to Viventium the Implementation Fee as follows: (i) fifty percent (50%) within ten (10) business days following the execution of the Ordering Document; then (ii) the remaining fifty percent (50%) upon receipt of the first invoice by User.
(c)    User shall commit to an implementation project timeline that outlines project milestones and agreed upon target completion date (the “Go Live Date”). 
(d)    User shall receive the Client Launch Incentive, if applicable, (as defined and outlined in the Ordering Document) towards the second invoice to User if there are no delays in the Go Live Date.
(e)    Delays in the Go Live Date or changes in the scope of the implementation due to User may, upon notice, result in the charge of additional fees at Viventium’s then-current rates (“Additional Implementation Fees”). Delays in the Go Live Date due to User will also result in the immediate charge of the remainder of the Implementation Fee as well as any Additional Implementation Fees.
(f)    User agrees that Implementation Fee and Additional Implementation Fees are compensation for services and use of resources provided by Viventium and therefore are non-refundable and payable regardless of whether User completes the implementation project.

3.4    Fee Start Date. Unless the target completion date is otherwise defined in the Ordering Document or as otherwise agreed to by the Parties in writing, Service Fees will commence at the earlier of the first payroll processed, when the System is made available to User, or 90 days from the execution of the Ordering Document.
3.5    NSF and other Exception Fees. User acknowledges and agrees that certain exception fees may be incurred in connection with User’s use of the Services, such fees may include but are not limited to fees for NSF, inactivity fees (for each division of User that did 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. User authorizes Viventium to cause its bank to reverse any wires, payments or deposits (including payroll or tax payments) made on behalf of User if Viventium determines User’s account(s) do not have sufficient funds to meet User’s obligations under the Agreement or in connection with the Services.
3.6    Taxes. All Fees and other amounts payable by User under the Agreement are exclusive of taxes and similar assessments. Sales tax may be applied to invoices for applicable states. Without limiting the foregoing, User will pay and indemnify and hold Viventium harmless from any and all taxes (including and not limited to sales tax, use, license, excise taxes, duties, tariff, any interest, additions to tax or penalties imposed thereon and with respect thereto) imposed by any authority on the Services, System, Service Fees or other amounts which are payable to Viventium pursuant to the Agreement. User also agrees to abide by funding thresholds and guidelines as stated in BDB DirecTax Agreement (if applicable).
3.7    Invoices. Viventium’s failure to invoice User will not relieve User of its obligation to pay on the scheduled date. Invoices shall be due and payable by User net 30 days following the date of the invoice, without withholding, deduction or offset of any amounts for any purpose. User waives any right to dispute a charge that User does not dispute within 15 days the charge.
3.8    Non-Payment of Fees. User will reimburse Viventium or Viventium’s agent for all costs and expenses incurred (including any fees for insufficient funds, attorneys' fees, judicial and extra-judicial costs) in collecting any Service Fees, Exception Fees, or in connection with providing the Service or System. In addition to all other remedies that may be available, Viventium may charge User interest on the outstanding balance of any overdue fees, charges or expenses at a rate equal to 1.5% per month, calculated daily and compounded monthly, or the highest rate permitted by applicable law, whichever is lower, for invoices not paid within ten (10) business days of written notification of delinquent payment. 
3.9    Fee Change. Service Fees may be adjusted by Viventium by providing written notice to User at least 10 calendar days prior to the commencement of the change.
3.10    Acceleration. If any Service Fees or Exception Fees are thirty (30) days or more overdue, Viventium may, without limiting its other rights and remedies, accelerate User’s unpaid fee obligations under the Agreement so that all such obligations become immediately due and payable.
3.11    Reimbursement of Travel and Expenses. User will reimburse Viventium for all reasonable expense incurred while providing services, including travel, lodging and out-of-pocket expenses. Unless expressly provided otherwise in the applicable Ordering Document, the quoted service fees are exclusive of travel and expenses.
3.12    Additional Fees. User acknowledges and understands that:

a)    If User has not yet provided proof of its state and/or local tax ID and corrected deposit/filing frequency, Viventium will not be making the tax deposits for state or local income tax accounts with missing or inactive tax ID numbers, and User absolves Viventium and its affiliates from responsibility for any penalties and interests and from any agency notices that may result from this.
b)    In some cases, with regard to the period prior to the provision of tax filing services to User by Viventium, the appropriate tax agencies’ records for User’s year-to-date wage, quarter-to-date wage, and federal/state/local tax IDs may not match with the User’s tax data provided to Viventium, and Viventium might be asked to help reconcile any differences during this prior period on User’s behalf. This additional service will be provided at a per hour research fee charged to User at Viventium’s then-current rates. No research fees will be charged if User provides its complete and accurate record of tax filings by the last day of the then-current quarter. Moreover, any penalties and/or interests incurred during such pre-Viventium tax-filing period will be the responsibility of User.
c)    In case User’s account is not fully updated for year-to-date wages and tax amounts, Viventium will not be able to properly calculate taxable wage bases and tax amounts. This may result in exposure to compliance issues on the federal and state levels. FICA, FUTA and SUTA wage bases may not be properly calculated, and incorrect tax amounts may not be withheld and deposited. User absolves Viventium and its affiliates from responsibility for any penalties and interests and from any agency notices that may result from this.
d)    Viventium will not be responsible for any notices and/or delinquencies related to tax filings prior to the inception of Viventium’s tax services.

4.    Term and Termination.

4.1    Term. The term of the Agreement (the “Term”) will commence as of the effective date of the initial Ordering Document (the “Effective Date”) and, unless terminated as set forth herein, shall continue until the last Ordering Document terminates. 

(a)    An Ordering Document shall have its own term, as described in the Ordering Document (the “Initial Term”).
(b)    Unless otherwise set forth in an Ordering Document, at the end of the Initial Term and any Renewal Term, the Ordering Document will automatically renew for successive periods equal to its Initial Term (each a "Renewal Term"), unless (i) earlier terminated pursuant to the Agreement's express provisions or (ii) if either Party gives the other Party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term.

4.2    Termination for Cause. 

(a)    Either Party may terminate the Agreement or any individual Ordering Document, effective on written notice to the other Party, upon any of the following events: (i) a material breach by the other Party of the Agreement which has not been remedied within 30 days after delivery of notice of such material breach; (ii) the other Party becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) the other Party ceases business operations; (iv) the other Party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (v) the other Party makes or seeks to make a general assignment for the benefit of its creditors; or (vi) the other Party applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(b)    Viventium may terminate the Agreement or any individual Ordering Document, effective on written notice to User, upon any of the following events: (i) User fails to pay Fees or other amounts owed to Viventium hereunder; (ii) User’s failure to use the Services or System in accordance with applicable law or in a reasonable manner; (iii) User discontinues its use of Viventium’s Services for one or more pay periods; (iv) User fails to timely remit to Viventium the funds required to perform the Services more than one time in any twelve-month period; (v) failure to comply with Nacha Rules; (vi) Viventium’s depository or financial institutions notify Viventium that Viventium may no longer service the User; or (vii) User’s breach of Section 2.1.

4.3    Termination Fee. Viventium may terminate the Agreement or the Ordering Document upon notice to User if User fails to start the Services or ceases to use all or substantially all the Services for any two consecutive pay periods (“Failure to Use”). Should the User Failure to Use the Services or if Viventium terminates this Agreement per clause 4.2, User agrees to pay, within 30 days of Viventium’s notice to User, all remaining Implementation Fees and all projected monthly Service Fees due through the remaining Term (the “Termination Fee”).
4.4    Suspension. Viventium reserves the right to suspend the Services, prohibit access to the System, and take technical and legal steps to keep any Authorized Users off the System if Viventium believes or suspects that, in its sole discretion: (a) User has not paid the Service Fees or Exception Fees under the Agreement; (b) Viventium receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Viventium to do so; (c) User or any of User’s employees, agents, contractors, or other individuals authorized by User has failed to comply with any term of the Agreement, or accessed or used the Services or System beyond the scope of the rights granted or for a purpose not authorized under the Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; and (d) User or any of User’s employees, agents, contractors, or other individuals authorized by User has accessed or used the Services or System in a manner that threatens the security, integrity, or availability of the Services or System, otherwise poses a risk to Viventium’s business. Viventium may also suspend performance immediately without prior notice in the event User, any of User’s employees, agents, contractors, or other individuals authorized by User, provides any content or information to Viventium which violates any applicable law or regulation or any contract, privacy or other third party right, or which otherwise exposes Viventium to civil or criminal liability. This Section 4.4 does not limit any of Viventium's other rights or remedies, whether at law, in equity, or under the Agreement.

4.5    Effect of Termination or Expiration. Upon any expiration or termination of the Agreement (or an Ordering Document), except as expressly otherwise provided in the Agreement:

(a)    all applicable rights, licenses, consents, and authorizations granted by Viventium to User thereunder will immediately terminate;
(b)    User shall immediately cease all use of any Services, the System, or Documentation and (i) within five (5) days return to Viventium, or at Viventium's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Documentation or Viventium's Confidential Information; and (ii) permanently erase all Documentation and Viventium's Confidential Information from all systems User directly or indirectly controls; and (iii) certify to Viventium in a signed written instrument that it has complied with the requirements of this Section 4.5(b);
(c)    Viventium may retain User Data in its then current state and solely to the extent and for so long as required by applicable law; Viventium may also retain User Data in its backups, archives, and disaster recovery systems until such User Data is deleted in the ordinary course; and all information and materials described in this Section 4.5(c) will remain subject to all confidentiality, security, and other applicable requirements of the Agreement;
(d)    Viventium may disable all User and Authorized User access to the Services and System.

4.6    Availability of User Data After Termination. Upon User’s request, unless the Agreement or an Ordering Document is terminated by Viventium pursuant to Sections 4.2(a) or 4.2(b), Viventium will continue to make User Data available through the System for a period of up to 90 days after termination of the Agreement or Ordering Document (or such longer period to which the Parties agree in writing) at Viventium’s then-current rates for the Services. The terms and conditions of the Agreement will continue to govern the availability of such data and the Parties’ related rights and obligations (including terms and conditions regarding payment, taxes, and access to and use of the Services).

5.    Intellectual Property.

5.1    Intellectual Property. As between Viventium and User, Viventium retains all right, title and interest in and to the System, the Services, and Documentation, as well as all other materials, data, structures, tools, content, devices, methods, processes, hardware, technical or functional descriptions, requirements, plans, or reports provided by Viventium, as well as all worldwide intellectual property and other proprietary rights in or to any of the foregoing, and any works of authorship, ideas, inventions (whether patentable or not), techniques, know-how, and programs (including source code) embodied therein, and any derivative works of the foregoing. With respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Materials. As between Viventium and User, Viventium retains all right, title, and interest in all modifications, customizations, and improvements to the System, Services, and Documentation regardless of whether any such modification, customization or improvement is the result (in whole or in part) of any services performed by Viventium for User or any suggestions or changes made by User. Except for the rights expressly licensed to User under the Agreement, no rights, title, or interest (including any license under) in or to the System, Services, Documentation, or any other materials, or tools made available by Viventium are granted, transferred, licensed, or assigned to User, whether by implication, estoppel, or otherwise, and all such rights are expressly reserved to Viventium and its licensors. All other rights in and to the System, Services, Documentation, and any other materials and tools made available by Viventium are expressly reserved by Viventium and their respective rights holders. None of the foregoing materials are works made for hire.
5.2    Copyright. The System is copyrighted as a collective work, and individual works or content appearing on or accessible through the System are owned by or licensed to Viventium or its content providers are likewise subject to copyright protection domestically and internationally. User must abide by all copyright notices, information, or restrictions contained in or displayed on the System or Services.
5.3    Trademarks. The names, logos, distinctive features, source identifiers and certain other materials displayed on the System or Services, including its “look and feel”, constitute trademarks, trade names, service marks, trade dress or logos (“Marks”) of Viventium or other third-party entities. All Viventium Marks are the sole and exclusive property of Viventium. All Marks not owned by Viventium that appear on the System are the sole and exclusive property their respective owners. User is not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with Viventium or their respective owners.
5.4    Data Warranty. User shall be solely responsible for obtaining all required rights and licenses to use and display any User Data (including personal information) and for updating and maintaining the completeness and accuracy of all User Data. Without limiting Section 1.10, User grants Viventium a right to use such data to perform the Services for User.
5.5    Performance Data. Notwithstanding anything to the contrary in the Agreement, 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 Services or System (including, without limitation, data regarding the performance of the hardware, software, and networks used to provide the Services or System); and (b) aggregated and anonymized data regarding the use of the Services or System (including, without limitation, data submitted or created in the use of the Services under the Agreement, provided that such data is aggregated and does not identify User or any individual). For clarity, Performance Data is Confidential Information of Viventium, and the Agreement does not restrict the use or disclosure of Performance Data by Viventium.
5.6    Feedback. If User submits any information to us about the System or Services, as a comment, recommendation or evaluation (“Feedback”), User assigns, without compensation, all right, title, and interest (including to any associated copyrights, patents, or other intellectual property) in all the Feedback User submits to Viventium. To the extent such rights may not be assigned in this manner, User hereby grants to Viventium an irrevocable, perpetual, worldwide, non-exclusive, transferable, sublicensable, fully paid-up,  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 User, without indicating that it is User’s, and without having any obligation to User or any other person or entity.

6.    Confidentiality.

6.1    Confidential Information. In connection with the Agreement, each Party (as the "Disclosing Party") may disclose or make available Confidential Information to the other Party (as the "Receiving Party"). “Confidential Information” of a Party means information that is not publicly available and relates to the Disclosing Party’s business, products, services, technology, software, infrastructure, customers, personnel, and suppliers (in any form, whether or not marked as “Confidential”) including any information developed by reference to or use of the other Party’s information. 
6.2    Excluded Information. Confidential Information does not include information that: 

(a)    is independently developed by the Receiving Party without use or reference to Disclosing Party’s Confidential Information; 
(b)    is or becomes publicly known (other than through unauthorized disclosure by the Receiving Party); 
(c)    was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; 
(d)    is already known by the recipient at the time of disclosure without restriction, prior to disclosure by the Disclosing Party; or 
(e)    is rightfully received by the Receiving Party free of any obligation of confidentiality, provided that (i) the Receiving Party has no knowledge that such information is subject to a confidentiality agreement and (ii) such information is not of a type or character that a reasonable person would have regarded it as confidential.

6.3    Confidentiality. Except as necessary or useful to provide the Services, the Receiving Party will not directly or indirectly, at any time, without the prior written consent of the Disclosing Party: (a) disclose or use the Confidential Information of the other Party (or any part thereof) for any use other than as necessary or reasonable to exercise its rights or for the performance of the Receiving Party’s obligations under the Agreement, which for the avoidance of doubt specifically permits Viventium to use, disclose, and release to third party vendors employee-related data and such other Confidential Information as specifically approved by User or as required to perform the Services User subscribes for in any additional Ordering Document; (b) hold the Confidential Information of the other Party in confidence, protecting such information with the same degree of care as such Party’s own confidential information, but in no case less than reasonable care.
6.4    Legally Compelled Disclosure. If Receiving Party is requested by an applicable governmental authority, summons or subpoena, or required by applicable law to disclose any Confidential Information, it will promptly notify Disclosing Party, if allowed, to permit Disclosing Party to seek a protective order or take other appropriate action, and will reasonably assist in such activities. In the event that the Disclosing Party waives compliance, does not respond to Receiving Party, or is unable to obtain such protective order or other appropriate remedy, the Receiving Party may furnish, without liability hereunder, that part of the Confidential Information as is required by law to be disclosed.

7.    Additional, Third Party, and Specific Services Terms

7.1    Additional Services. Without limiting the terms of the Agreement, Viventium policies, promotions, or if you subscribe to or access one or more of the services listed, such items are governed by additional terms and conditions listed at https://viventium.com/additional-terms-and-conditions/ (each, “Additional Terms”). Any applicable Additional Terms are incorporated into and made part of this Agreement. To the extent any Additional Terms conflict with the Agreement, the Additional Terms will control with respect to the applicable subject matter.
7.2    Links to Third-Party Sites. The System may contain links that will let Authorized Users access other websites that are not under the control of Viventium. Links from the System to other third-party sites do not constitute an endorsement by Viventium of such third-party sites or the acceptance of responsibility for the content on such sites. Viventium assumes no responsibility or liability for any product, service, or material that may be accessed on other websites reached through the System, nor does Viventium make any representation regarding the quality of any product, service, or material contained at any such website.
7.3    Third Party Providers. User acknowledges and agrees that 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. User is solely responsible for, and assumes all risk from, User’s choice to receive, use or access any third-party service. User authorizes Viventium to share User Data with such third-party service, including personal information, in order for the third party to provide its service. User waives and releases any Claim against Viventium and its directors, officers, and employees arising out of a third-party service’s use of User Data.  When you enable a third-party service, you grant Viventium permission to allow the third-party service and its provider access to User Data as required for the interoperation of that third-party service with the Services. 
7.4    Interfaces.  Subject to the Additional Terms, User may elect to enable or disable third party integrations, manage permissions, and grant certain access to view or edit User Data with third parties via an interface. These instructions may result in the access, use, disclosure, modification or deletion of certain User Data (and/or the loss of certain functionality), and User should review User’s choices, permissions and instructions. User is solely responsible for responding to and resolving disputes that may arise relating to or based on User Data, the System, Services, or User’s failure to fulfill any of the foregoing responsibilities.

8.    Marketing

8.1    Announcement. Viventium may issue a press release after execution of the Agreement or any subsequent Ordering Document announcing that Viventium and User have entered into an agreement. Further, Viventium may include User's name and trademarks in its lists of Viventium's current or former customers.

9.    Representations and Warranties

9.1    User Representations. User represents, warrants, and covenants that User: (1) is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (2) has full power and authority to enter into and perform User’s obligations under the Agreement; (3) the execution and performance of User’s obligations under the Agreement will not constitute a breach of any law or regulation or contract or agreement; (4) the use of the Services or System by User shall comply with applicable laws; and (5) User owns or otherwise has and will have the necessary rights and consents in and relating to the User Data so that, as received by Viventium and processed in accordance with the Agreement, the User Data does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, personal information rights, or any privacy or other rights of any third party or violate any applicable law.
9.2    Viventium Representations. Viventium represents and warrants to User that once all implementation activities relating to the System and Services have been successfully completed, the System and Services shall substantially conform to and operate in accordance with the Documentation. 
9.3    Exclusions. The limited warranty in Section 9.2 will not extend to and Viventium shall have no obligation to resolve any non-conformities or errors in the Services or System that directly or indirectly result from (a) use of the Services or System other than in accordance with the Documentation; (b) use of the Services or System in conjunction with software, equipment, facilities, devices or network speeds not recommended by Viventium; (c) any modification or attempted modification of the Services or System by anyone other than Viventium; (d) networks, computers, software, telecommunications equipment or other devices owned or used by User; (e) telecommunications failures or Internet service provider limitations; (f) Third-Party Materials;  or (g) in a breach of the Agreement.
9.4    Third-Party Products. Viventium makes no representations, warranties, or covenants related to any Third-Party Products and such Third-Party Products shall be subject to such other terms and conditions set by the third parties that provide such Third-Party Products.
9.5    Remedy. The Parties agree that User’s sole and exclusive remedy for Viventium’s breach of the warranty of Section 9.2 is for User to promptly notify Viventium of the applicable non-conformity and for Viventium to use good faith efforts to fix any non-conformities or errors in the Services or System. Viventium is NOT THE PROVIDER OF AND MAKES no REPRESENTATION OR WARRANTIES WITH RESPECT TO OR CONCERNING, ANY THIRD-PARTY Products. USER’S SOLE AND EXCLUSIVE REMEDY, IF ANY, FOR A BREACH OF REPRESENTATION OR WARRANTY CLAIM RELATED TO ANY THIRD-PARTY Products SHALL BE LIMITED TO THE REMEDIES EXPRESSLY STATED IN ANY APPLICABLE THIRD-PARTY WARRANTY.
9.6    Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SERVICES, THE SYSTEM, AND ALL INFORMATION, CONTENT, MATERIALS AND SERVICES OTHERWISE PROVIDED OR MADE AVAILABLE BY VIVENTIUM 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, SECURITY, NON-INTERRUPTION OF USE, SYSTEM INTEGRATION, ACCURACY OF DATA, FREEDOM FROM PROGRAM ERRORS, VIRUSES OR ANY OTHER MALICIOUS CODE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SUBMISSION OF ANY PERSONAL INFORMATION AND THE DOWNLOAD OR UPLOAD OF ANY CONTENT THROUGH THE SERVICES AND/OR SYSTEM IS DONE AT USER’S OWN DISCRETION AND RISK. USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY INFORMATION OR FROM RELIANCE UPON ANY INFORMATION, AND USER IS ADVISED TO MAINTAIN OFFLINE BACKUP COPIES OF ALL INFORMATION.

10.    Indemnification.

10.1    Viventium Indemnification. Subject to the terms and conditions of the Agreement, including the limitations of liability, monetary caps, and exclusion of certain types of damages provided for herein, Viventium shall defend and indemnify User against any loss or damage incurred in connection with claims, demands, suits, or proceedings (“Claims”) brought against User by a third party alleging that the authorized use of the Services or System as contemplated under the Agreement infringes any U.S. patent, copyright or trade secret rights of a third party. In the event that the Services or System or any part thereof are likely to, in Viventium’s sole opinion, or do become the subject of an infringement related Claim or otherwise violate any third-party intellectual property right, then Viventium may:

(a)    obtain the right for User to continue to use the System, Services, and Documentation materially as contemplated by the Agreement;
(b)    modify or replace the System, Services, and Documentation, in whole or in part, to seek to make the System, Services, and Documentation (as so modified or replaced) non-infringing, while providing reasonably similar features and functionality, in which case such modifications or replacements will constitute System, Services and Documentation, as applicable, under the Agreement; or
(c)    by written notice to User, terminate the Agreement with respect to all or part of the System, Services, and Documentation, and require User to immediately cease any use of the System, Services, and Documentation or any specified part or feature thereof.
Viventium shall have no liability, obligation to defend, or indemnify for any claim of infringement based on (i) the use or combination of the System or Services or any part thereof with software, hardware, or other materials not provided by Viventium, (ii) modification of the System or Services by a party other than Viventium, where the use of unmodified System or Services would not constitute infringement; (iii) User Data. THE FOREGOING STATES VIVENTIUM’S ENTIRE LIABILITY AND USER'S EXCLUSIVE REMEDY FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SYSTEM, SERVICES, Documentation, OR ANY SUBJECT MATTER OF THE AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

10.2    User Indemnification. To the extent permitted by applicable law, User agrees to indemnify, defend, and hold harmless Viventium, its affiliates, third party providers, officers, directors, employees, successors, assigns, 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 out of or in connection with: (i) User’s use of and access to the System and Services; (ii) User’s violation or breach of any term of the Agreement (or any claim alleging facts that, if true, would amount to a violation or breach of the Agreement); (iii) User’s violation of any third party right, including without limitation any copyright, intellectual property, or privacy right; (iv) any claim that User Data or any other information provided by or on behalf of User caused damage to a third party; (v) any actual or alleged violation of any applicable local, state, or federal law, rule, or regulation by User; (vi) any other acts or omissions of User or any Authorized User; (vii) User Data, including any processing of User Data by or on behalf of Viventium in accordance with the Agreement or use of inaccurate User Data; (viii) negligence or more culpable act or omission (including recklessness or willful misconduct) by User, any Authorized User, or any third party on behalf of User or any Authorized User, in connection with the Agreement; (ix) any failure on the User’s part to fund any payment obligation of User or any debit or reversal of funds transfers to or from User’s employees or others that results in a funds shortfall with respect to User’s account; (x) Viventium’s acts or omissions in furtherance of User’s instructions. This defense and indemnification obligation will survive the Term.
10.3    Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any action for which such Party believes it is entitled to be indemnified pursuant to Section 10. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such action, including settling such action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

11.    Limitation of Liability

11.1    EXCLUSION OF DAMAGES. USE OF THE SERVICES, THE SYSTEM, Third-Party Products AND ANY OTHER CONTENT, INFORMATION, AND MATERIALS PROVIDED BY VIVENTIUM IS AT user’s OWN RISK. IN NO EVENT WILL VIVENTIUM OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, UNAUTHORIZED USE OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, ENHANCED, PUNITIVE OR SPECIAL DAMAGES, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF VIVENTIUM WAS ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.2    CAP ON MONETARY LIABILITY. THE MAXIMUM AGGREGATE LIABILITY OF VIVENTIUM AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, ANY RELATED TERMS, THE SERVICES, OR THE SYSTEM, IS LIMITED TO DIRECT, ACTUAL, PROVABLE DAMAGES AND SHALL NOT EXCEED THE FEES PAID BY USER UNDER the applicable ORDERING DOCUMENT giving rise to such claim DURING THE MONTH PRECEDING THE DATE OF THE FIRST SUCH CLAIM ARISING UNDER THE AGREEMENT REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON SUCH CONTRACT, WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT OR OTHERWISE. USER ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL TERM BETWEEN USER AND VIVENTIUM RELATING TO THE PROVISION OF THE SYSTEM, THE SERVICES, AND ANY CONTENT TO USER, AND VIVENTIUM WOULD NOT PROVIDE THE SYSTEM OR SERVICES TO USER WITHOUT THIS LIMITATION. USER AGREES THAT Viventium WILL NOT BE LIABLE TO USER OR ANY OTHER PARTY FOR ANY TERMINATION OF USER’S ACCESS TO THE SYSTEM OR SERVICES OR DELETION OF USER’S ACCOUNT OR CONTENT. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.3    Offset of Damages. If Viventium is liable to User for any damages or other payments hereunder, Viventium shall have the right to offset such damages or payments against all then-unsatisfied monetary obligations of User to Viventium under the Agreement.

12.    Security and Privacy.

12.1    Personal Information. In the course or accessing and/or using the System and the Services, Viventium may obtain information about User or User may be required to provide certain personal information to Viventium. Please review Viventium’s Privacy Policy for a description of Viventium’s privacy policies and practices. To the extent Viventium Processes Personal Information that is subject to the CCPA on behalf of User, the Parties agree to the Data Processing Addendum available at https://viventium.com/data-processing-addendum (the “DPA”), which is incorporated into and forms part of these Master Terms and Conditions. “Process,” “Personal Information” and “CCPA” have the meaning given to them in the DPA.
12.2    Security. Viventium may require the User to enroll in a multi-factor authentication (“MFA”). Should the User decline to use or opt out of MFA, the User will be unable to access the System. Viventium employs various security features designed to enhance security and limit access to the System. User is responsible for adopting its own effective internal controls regarding the Services and System. Viventium’s Services and System should not be relied upon to detect or disclose errors, fraud, or illegal acts of User’s employees or third parties. To the extent User elects to disable or discontinue the use of certain security features offered by Viventium, User assumes full responsibility arising out of User’s non-use or disabling of any such security feature(s). Viventium disclaims all responsibility arising from User’s disabling or non-use of any Viventium security feature.

13.    Miscellaneous Provisions.

13.1    Notices. All notices or other communications required or permitted hereunder must be in writing and delivered to the address for such Party set forth on the Ordering Document using one of the methods set forth in this Section. Notices delivered by a nationally recognized overnight delivery service will be effective upon delivery. Notice sent by registered or certified mail, return receipt requested, postage prepaid, will be deemed received on the fourth business day after sending. Notice sent by email will be deemed received when: (a) the recipient acknowledges having received that email (with “read receipt,”); or (b) the same notice is given by another method described in this Section; provided, however, that email will not constitute effective notice for matters relating to indemnity. Additionally, Viventium is permitted to give written notice to User via the System and Services, including through electronic messages and pop-ups. Each Party shall have the right to change its address, the person to whose attention notices and other communications are to be given.
13.2    Scope and Amendment of Agreement. The Agreement, including all of the documents referred to in the Agreement, constitutes the entire agreement between the Parties. The Agreement supersedes all other agreements between the Parties that concern the subjects covered by the Agreement. Viventium may modify this Agreement at any time, in Viventium’s sole discretion, effective upon posting of an updated version of this Agreement. It is important that User reviews each modified version of the Agreement as User’s continued use of the Services and System after such changes are posted constitutes User’s agreement to be bound by the modified Agreement. If User does not agree to be bound by the modified Agreement, then User may not continue to use the Services and System. Because the Services and System evolve over time, Viventium may update, upgrade, change, rebrand, provide a new version of or discontinue all or any part of the Services or System at any time and without notice, and without liability to User, at Viventium’s sole discretion.  
13.3    Counterparts and Signatures. The Agreement may be signed in any number of counterparts, each of which will be an original copy of the Agreement. All signed counterparts will be part of one agreement. Upon Viventium’s request, User will promptly provide physical copies, executed by User by hand, of the Agreement or any forms required by state, local, or federal officials for the provision of the Services. Viventium will not be responsible for delays in performing, or failure to perform, the Services to the extent caused by User’s delay or failure in providing physical copies of signed documents and forms.
13.4    Governing Law and Jurisdiction. The Agreement will be governed and construed solely and exclusively under the laws of the State of New York, irrespective of any conflict of law provisions or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any and all claims, legal suit, disputes, actions, or proceedings arising from or relating to the Agreement must be brought in federal or state court in the County of New York, New York, and each Party hereby irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding. The Parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Service of process, summons, notice, or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13.5    Dispute Resolution. The Parties shall endeavor in good faith to resolve any dispute or claim between them that may arise under this Agreement in accordance with the following procedure. The Party having a dispute or claim will give the other Party written notice stating the nature of the dispute or claim in reasonable detail (a “Dispute Notice”).  Within five (5) business days of receiving a Dispute Notice, senior management of the Parties shall meet (either in person or via videoconference) and attempt to resolve the dispute or claim by good faith negotiations.  Except as permitted in the last sentence of this Section 13.5, the Parties may only initiate litigation or other legal proceedings with respect to the dispute or claim if there has been no resolution thereof after the conclusion of a thirty (30) day period beginning from the start of the Parties’ negotiations pursuant to this section. Notwithstanding the foregoing, a Party may immediately seek equitable relief (including a restraining order, an injunction, specific performance, and any other relief that may be available from any court) in any court of competent jurisdiction without following the procedure set forth in this section.
13.6    Age Restriction. User affirms that all users of the Services and System shall be either 18 years of age or older, or an emancipated minor, or possess legal parental or guardian consent. In any case, User affirms that all users of the Services and System shall be at least 13 years of age.
13.7    Assignment. User may not assign, transfer, delegate, or sublet any of User’s rights or obligations under the Agreement, including involuntarily by merger or otherwise, without the prior written consent of Viventium. No assignment, delegation, or transfer will relieve User of any of its obligations or performance under the Agreement. Any assignment of the Agreement without obtaining the prior written consent of Viventium is void and of no effect. Viventium will have the right to assign its rights and obligations under the Agreement, in whole or in part. The terms of the Agreement is intended solely for the benefit of User and Viventium and do not confer third-party beneficiary rights upon any other person or entity, unless otherwise provided herein. The rights and obligations of User and Viventium will be binding upon and inure to the benefit of User and Viventium, respectively, and their respective successors and permitted assigns.
13.8    Monitoring and Enforcement. Viventium has the right, but not the obligation, to investigate any violation of the Agreement or misuse of the Services or System. Viventium may periodically monitor User Data and User’s use of User Data for compliance but is not obligated to do so. Viventium reserves the right to remove User Data from the Services and System at any time and without notice in the event that Viventium determines (in Viventium’s sole discretion) that any User Data or use of User Data is in violation of this Agreement. If User violates the Agreement or authorizes or helps others to do so, Viventium may suspend use of the System or Services until the violation is corrected or terminate the Agreement for cause in accordance with the terms of the Agreement. Viventium may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Viventium's reporting may include disclosing appropriate customer information. Viventium also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations.  
13.9    Claims. User agrees that any User claim or cause of action related to the System, Services, and/or the Agreement, regardless of form, must be filed within one year after such claim or cause of action arose or be forever barred, regardless of form.
13.10    Electronic Communications. User: (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 User electronically have the same effect as if it were provided in writing and signed by User in ink. The foregoing does not affect User’s non-waivable rights.
13.11    Equitable Relief. User acknowledges and agrees that a breach or threatened breach by User of any of its obligations under the Agreement, would cause Viventium irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Viventium will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
13.12    Export Controls. User acknowledges that the System, or any hardware, and related technical information, documents and materials may be subject to the U.S. Export Administration Regulations and other applicable laws. User agrees that it will (i) comply with the legal requirements established under these controls, (ii) cooperate with Viventium in any official or unofficial audit or inspection that relates to these controls, and (iii) not export, re-export or otherwise transfer, directly or indirectly, the System, or any hardware or any related technical information, documents or materials, or any related product thereof to any destination, company or person restricted or prohibited by these export controls, unless User has obtained prior written authorization from Viventium and the applicable governmental organization. User represents and warrants that (a) it is not a citizen of, or located within, a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including, without limitation, Cuba, Iran, Syria and North Korea); (b) it is not identified on any government restricted party lists (including, without limitation, the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury, the Denied Party List, Entity List and Unverified List, administered by The Bureau of Industry and Security of the U.S Department of Commerce, and the UK Sanctions List); and (c) that no User Data is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws.
13.13    Force Majeure. In no event will Viventium be liable or responsible to User, or be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Viventium’s reasonable control (a "Force Majeure Event"), including (i) acts of God; (ii) flood, fire, earthquake, epidemic, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of the Agreement; and (vi) national or regional emergency; (vii) acts of governmental authorities or judicial action; (viii) interruption in telecommunications or utility service. Viventium will not be held in breach of the Agreement if it fails to perform its obligations to the extent such non-performance is attributable to acts, errors or omissions by User, Authorized Users, or any other third-party independently hired by User.
13.14    Independent Contractors. The relationship between the Parties is that of independent contractors. The Parties agree that the Parties have no fiduciary duty to one another or any other special or implied duties that are not expressly stated herein. Except as expressly stated herein, neither User nor Viventium will at any time be deemed to be the employee, agent or legal representative of the other for any purpose. The Agreement does not constitute and will not be construed to create a partnership, joint venture, or agency relationship.
13.15    Invalid Provision. If any provision of these terms is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, you agree that the court should endeavor to give effect to the intentions reflected in the invalid, illegal, or unenforceable provision, and the other provisions of this Agreement shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify the Agreement so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13.16    Nacha Operating Rules. User 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”). Information pertaining to Nacha Rules and guidelines can be found at www.nacha.org. User shall be solely responsible for the accuracy and completeness of all information provided for ACH transactions. Upon request by Viventium, User shall promptly provide Viventium with all documentation reasonably requested by Viventium to demonstrate User’s compliance with the Nacha Rules.
13.17    Term Survival. The provisions of sections 3, 4.3, 4.5, 5.1, 5.2, 5.3, 5.6, 8, 10, 11, and 13, and any other right or obligation of the Parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, will survive the termination of this Agreement.
13.18    Third-Party Beneficiaries. The Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
13.19    Viventium Documentation. Certain Services are provided in accordance with the Documentation as in effect from time to time. Viventium may update the Documentation from time to time.
13.20    Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.