Vivun Inc. Master Subscription Agreement
This Master Subscription Agreement (the “Agreement”) entered into by and between Vivun Inc., a Delaware corporation (“Vivun”) and any individual or organization agreeing to these terms (“Customer”) prior to Customer’s use of the Subscription Service. Vivun and Customer are sometimes referred to herein individually as a “Party” and collectively as the “Parties”. By clicking “I Agree,” attaching this Agreement to an Order Form or similar order, or using the Service as a paid subscriber, Customer agrees to the terms of this Agreement. If an individual is entering into this Agreement on behalf of an organization or other legal entity such organization shall be deemed the Customer hereunder and such individual hereby represents and warrants that she/he has the power and authority required to bind such organization to this Agreement.
This Agreement governs the use of the software solutions owned by Vivun identified in an Order Form, the Subscription Service, any Professional Services, any other products or services received from Vivun and its associated applications and website, by Customer, whether on a free or paid basis (collectively, the “Services”). Customer agrees that Customer’s use of the Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Vivun regarding future functionality or features.
- Subscription to the Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, Vivun hereby grants to Customer a non-sublicensable, non-transferable (except as provided herein), non-exclusive right to access and use the Services, in accordance with the terms and conditions of this Agreement and all applicable Order Forms. End User subscriptions are for designated End Users and cannot be shared or used by more than one End User but may be reassigned to new End Users replacing former users who no longer require ongoing use of the Services. If Customer has engaged a third-party purchasing agent to purchase seats on its behalf, such purchasing agent is not the Customer, and Customer agrees that Customer is still solely responsible for compliance with this Agreement.
- Additional Use. In the event Customer adds an additional End User or End Users (“Additional User(s)”) in excess of the originally designated amount of End Users at any point during the term of the Agreement, the Additional Users will be billed in arrears at the current list price for the Services from the starting date of the Additional User(s)’ use of the Services. Additional User(s) use will be bound by the terms and conditions set forth in this Agreement. The term of any Additional Users’ access to the Services will be coterminous with the current Subscription Term.
- Suspension of Services. Vivun reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, (ii) unavailability of services (including network and hosting services) provided by a third party service provider, or (iii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Vivun.
- Customer Obligations
- Administration of Customer’s Account. Customer must specify one or more administrators (each an “Administrator”) to manage its account. Administrators have the ability to access, monitor, use, export and disclose all content posted by End Users in accordance with applicable local laws. Customer is responsible for: (i) the selection of its Administrator(s); (ii) maintaining the confidentiality of passwords and Administrator accounts; (iii) managing access to Administrator accounts; and (iv) ensuring that each Administrator’s use of the Services complies with this Agreement. Vivun shall not be held liable for any actions on the part of Customer’s Administrator(s).
- End User Conduct; Compliance. Customer is responsible for use of the Services by its End Users and for their compliance with Vivun’s User Terms of Service. Customer is also responsible for providing any notice and obtaining any consents and authorizations necessary: (i) to allow the Administrator to access, monitor, use, and disclose the content posted by the End Users on the Services; and (ii) to allow Vivun to provide the Administrator with access to such End User content. The Services are not intended for use by persons under the age of 16 and Customer will ensure that it does not allow any person under 16 to use the Services. Customer will promptly notify Vivun if it becomes aware of any unauthorized access to Customer’s account or the Services.
- Configuration, Third Party Technology or Services. Customer acknowledges that the Services and its features and functionality are dependent on Customer’s proper configuration of the Services, the availability of and proper performance Third Party Apps (as defined below) and services, such as salesforce.com, and that Vivun is not liable for performance issues or downtime of the Services to the extent caused by Third Party Apps or other factors outside of Vivun’s control.
- Restrictions. Customer will not: (i) rent, sell, resell or lease the Services to any third party; (ii) use the Services for any purpose where either the use or the failure of the Services might lead to personal injury, death or physical damage; (iii) disassemble, decompile or reverse engineer the Services or attempt or assist anyone else to do so, unless such restriction is prohibited by law; (iv) modify, translate, or create derivative works based on the Services; (v) permit any third party to access the Services except as permitted herein or in an Order Form or use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations; (vi) remove any title, trademark, copyright and/or restricted rights notices or labels from the Services; (vii) copy, frame or mirror any content forming part of the Services, other than on Customer’s own intranets or otherwise for its own internal business purposes and Customer shall not access the Services in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Services.
- Suspension. Vivun may request that Customer suspend the account of any End User who: (i) violates the User Terms of Service; or (ii) is using the Services in a manner that Vivun reasonably believes may cause a security risk, a disruption to others’ use of the Services, or liability for Vivun. If Customer fails to promptly suspend or terminate such End User’s account, Vivun reserves the right to do so.Customer’s Use of Third Party Services
- Third-Party Applications. The Services have the ability to integrate with free and paid third-party applications used by Customer (“Third Party App”). Third Party Apps are optional and are chosen and installed at Customer’s sole discretion. In some cases, Customer must acquire a Third Party App in order to utilize certain features or functionality of the Services. Customer is responsible for all fees related to Third Party Apps. When Customer downloads or uses a Third Party App, Customer acknowledges and agrees that Vivun may collect information from Customer regarding the use of the Third Party App for the purpose of providing Customer the Services. Additionally, data may be transferred directly between the Services and the Third Party App. Vivun is not responsible or liable for any aspect of the Third Party Apps. Vivun shall have no liability, obligation or responsibility whatsoever with respect to any Third Party Apps and services. Vivun does not endorse any Third Party App. Vivun may remove integrations with Third Party Apps at its discretion, with or without notice.
- Intellectual Property Rights.
- Ownership of Intellectual Property Rights. Vivun and its licensors own all rights, title and interest, including all related Intellectual Property, in and to the Vivun System, the Content, Documentation, and the Services, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services. The Vivun name, the Vivun logo, and the product names associated with the Services are trademarks of Vivun.
- Limited License to Use Customer Content. Customer hereby grants to Vivun a limited, nonexclusive and nontransferable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit and display Customer Data for the limited purpose of (i) providing the Services and associated customer support to Customer; (ii) displaying Customer Data to the End Users; (iii) publication of aggregate, anonymized data regarding Services use; and (iv) analyzing and improving the Services.
- Reservation of Rights. Except as expressly set forth herein, this Agreement does not (i) grant Vivun any rights or interest in or to Customer Data or any Customer Intellectual Property; or (ii) grant Customer any rights or interest in or to the Services or any Vivun Intellectual Property. For purposes hereof, the term “Intellectual Property” shall mean any current or future worldwide rights under any patent, copyright, trademark, or trade secret; any moral rights or any similar rights.
- Customer Marks. Vivun may include Customer’s name and logo in a list of Vivun’s Customers online and in print and electronic marketing materials. Customer acknowledges and agrees to Vivun’s use of Customer’s name and/or logo in disclosures to third parties, either in print or online, regarding current Vivun subscribers.
- Fees and Payment
- Fees, Payment. Customer will pay Vivun the applicable fees as set forth on the Order Form or, if applicable, the recurring subscription rate agreed to via online order (the “Fees”).
- Fees for Purchases Made Via Order Form. Except as otherwise provided for the Subscription Term: (i) the Fees set forth in each Order Form hereunder shall be fixed during the Subscription Term, including the per user rate for purchases of additional Users; and (ii) the Fees set forth in each Order Form hereunder will be invoiced upon execution of such Order Form. If not otherwise specified, payments will be due within thirty (30) days of invoice.
- Fees for Pay As You Go Plan. Fees for Pay As You Go Plan purchased via the www.vivun.co website (the “Pay As You Go Plan”) will be charged upon purchase. Following the end of the initial period, the Pay As You Go Plan will automatically renew for a period equal to the initial period on a recurring basis (e.g. if the initial plan is a month long, the Customer will be charged for an additional month on the first day after the initial month ends, and monthly thereafter until cancellation by Customer). Customer acknowledges and agrees that Vivun will not be required to obtain additional authorization for each periodic billing. If Customer does not want to continue to be charged on a recurring periodic basis, Customer must cancel the applicable paid subscription through Customer’s account page prior to the end of the period for which Customer has already paid. Except as expressly provided in these terms, Vivun will not refund any fees that Customer has already paid. Vivun may change the price for the Pay As You Go Plan, and will communicate any price changes to you in advance, and, if applicable, how to accept those changes. Price changes for the Pay As You Go Plan will take effect at the start of the next subscription period following the date of the price charge. If Customer does not agree with the price changes, Customer may unsubscribe from the services prior to the price change going into effect. As permitted by local law, you accept the new price by continuing to subscribe to the services after the price change takes effect.
- Payment. Customer is responsible for providing complete and accurate billing information to Vivun. Customer agrees to promptly notify Vivun of any changes to its billing information. If Customer uses a credit card to make payment hereunder, Customer authorizes Vivun to charge such credit card on a recurring basis for all applicable fees and taxes. Vivun may bill: (i) in advance; (ii) at the time of purchase; (iii) shortly after purchase; or (iv) if you have elected a subscription service, on a recurring basis. If Customer is invoiced for fees and taxes, all amounts are payable in U.S. dollars net thirty (30) days from the date of the invoice per the invoice instructions unless otherwise specified. Customer will be billed for the appropriate plan based on the total number of End Users, including those with limited access.
- Taxes. If Vivun has the legal obligation to pay or collect taxes for which Customer is responsible, including but not limited to, sales, use, transfer, privilege, excise, and all other taxes and duties that are levied or imposed by reason of performance of Customer under this Agreement, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Vivun with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Non-Payment. Any payment not received from Customer may accrue, at Vivun’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; from the date such payment was due until the date paid. In addition to any other rights granted to Vivun herein, Vivun reserves the right to suspend or terminate Customer’s use of the Services if Customer fails to pay any undisputed amount owed on or before its due date. If Customer or Vivun initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer’s account.
- Fees, Payment. Customer will pay Vivun the applicable fees as set forth on the Order Form or, if applicable, the recurring subscription rate agreed to via online order (the “Fees”).
- Term and Termination
- Subscription Term. This Agreement will remain in effect until Customer terminates its subscription to the Services or until this Agreement is otherwise terminated as provided for herein. A Pay As You Go Plan term will be for the length of time selected by the Customer and will automatically renew unless you cancel your Pay As You Go Plan prior to the end of the current period. In the event Vivun makes material modifications to the Pay As You Go Plan services, Vivun will notify you prior to the end of the current period along with the updated price, as described in Section 5.1.2. For purchases made via Order Form, unless stated otherwise in the Order Form, the Subscription Term shall automatically renew for subsequent twelve (12) month periods at the list price in effect at the time of renewal unless either party gives the other party notice of non-renewal at least sixty (60) days prior to the end of the then-current Subscription Term.
- Termination. Either Party may terminate this Agreement and/or any Order Form by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. Vivun may immediately suspend access and/or terminate the agreement without notice in the event Vivun determines, in Vivun’s sole discretion, that Customer is in the process of developing, or releases a product, with similar or competitive functionality to the Services offered by Vivun.
- Effect of Termination. Upon any expiration or termination of this Agreement, and upon expiration of the Subscription Term (monthly or otherwise) the rights and licenses granted hereunder will automatically terminate, and Customer may not continue to use the Services. Vivun will have no liability for any costs, losses, damages, or liabilities arising out of or related to any termination of this Agreement.
- Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
- Representations & Warranties
- Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
- Data Warranty. Customer represents and warrants that Customer owns or has obtained all rights, consents, permissions, or licenses necessary to allow the Services access to, or possession, manipulation, processing, or use of Customer Data and User Details.
- Disclaimer of Warranties
- EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN AN APPLICABLE EXHIBIT, VIVUN AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT, AND THE SERVICES AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS, AS-AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY VIVUN.
- Confidentiality of Vivun Information
- Confidentiality. During the course of their performance under this Agreement, each party may make available to the other party information that is not generally known to the public and at time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information shall include, but shall not be limited to: business plans, strategies, technical data, reports, designs, drawings, services information, forecasts, projects and analyses; financial information and fee structures; business processes, methods and models; employee, customer and supplier information; sales and marketing information. With respect to Customer, Confidential Information also includes Customer Data. Confidential Information does not include: (a) information that was generally known to the public at the time disclosed to Customer; (b) information that becomes generally known to the public (other than through a breach of this Section by Customer) after disclosure to Customer; (c) information that was in Customer’s possession free of any obligation of confidentiality prior to disclosure by Vivun; (d) information that is rightfully received by Customer from a third party without any restriction on disclosure; or (e) information that was independently developed by Customer without reference to or use of Vivun’s Confidential Information. All Confidential Information is provided “AS IS.” VIVUN MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY OR COMPLETENESS OF ITS CONFIDENTIAL INFORMATION.
- Use and Disclosure of Confidential Information. Customer: (a) will not use Confidential Information for any purpose except in connection with this Agreement; (b) will not disclose, give access to, or distribute any of the Confidential Information to any third party, except to the extent expressly authorized in a separate written agreement signed by Vivun; and (c) will take reasonable security precautions (which will be at least as protective as the precautions Customer takes to preserve its own confidential information of a similar nature) to keep the Confidential Information confidential., Customer agrees to only disclose the Confidential Information to those of its employees, directors, affiliates, advisors, agents, contractors, and other representatives (“Representatives”) who need to know such information, provided that each such Representative is bound to protect the Confidential Information by confidentiality obligations substantially as protective as this Agreement. Customer will be responsible for its Representatives’ disclosure or use of the Confidential Information in violation of this Section. Customer will promptly notify Vivun upon discovery of any unauthorized disclosure or use of the Confidential Information, or any other breach of this Section, by Customer or its Representatives. Customer’s (and its Representatives’) obligations under this Section cease to apply to information upon the later of: (i) the termination of this Agreement; or (ii) after three (3) years have passed from the date on which the Confidential Information was first disclosed. Notwithstanding the foregoing, Customer may not disclose Vivun trade secrets for as long as the confidentiality of such trade secrets is maintained.
- Return of Materials. Within ten (10) days of the receipt of a request by the Vivun, Customer agrees to return or destroy (and certify such destruction of), as directed by Vivun, all copies of all Confidential Information received pursuant to this Agreement.
- Intellectual Property; No Obligation to Disclose. Vivun retains all rights, title, and interest in and to the Confidential Information, including all intellectual property and proprietary rights therein. The disclosure of the Confidential Information to Customer does not grant or convey any right of ownership of such Confidential Information.
- Required Disclosures. Customer may disclose the Confidential Information to the extent required by law or legal process. In such cases, however, Customer will (except to the extent prohibited by law or legal process from doing so): (a) give Vivun prior notice of such disclosure so as to afford Vivun a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with Vivun, at the Vivun’s expense, in Vivun’s efforts to ensure that the Confidential Information will be subject to a protective order or other legally available means of protection. Either Party may disclose the terms of this Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that any such Party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction.
- Injunctive Relief. Customer acknowledges that any actual or threatened breach of this Section 7 may cause irreparable, non-monetary injury to Vivun, the extent of which may be difficult to ascertain. Accordingly, each Party is entitled to seek injunctive relief in addition to all remedies available at law and/or in equity.
- By Vivun. Vivun hereby agrees to indemnify, defend and hold harmless Customer and its employees, contractors, agents, officers and directors (together the “Customer Affiliates”), from and against any and all Losses arising from or as a result of any claim by a third party against Customer or Customer Affiliates to the extent based on an allegation that the Services or Vivun’s technology used to provide the Services infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Vivun have any obligations or liability under this section arising from: (i) use of the Services in a modified form or in combination with materials not furnished by Vivun; (ii) use of any Third Party App developed using Vivun’s API; or (iii) use of any content, information, or data provided by Customer, End Users, or other third parties. THIS INDEMNITY IS CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR ANY VIOLATION BY VIVUN OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
- By Customer. Customer hereby agrees to indemnify, defend and hold harmless Vivun, its licensees and licensors, and their respective employees, contractors, agents, officers and directors (together, the “Vivun Affiliates”), from and against any and all liabilities, damages, obligations, losses, costs and expenses (including but not limited to reasonable attorney’s fees) (together, the “Losses”) arising from or as a result of any claim by a third party against Vivun or the Vivun Affiliates regarding: (i) use of or access to the Services by Customer or its End Users in violation of this Agreement or our Terms of Service; or (ii) any data or Customer Data transmitted or received through, or posted or stored in, Customer’s account, or (iii) Customer’s use of the Services beyond the license granted in this Agreement misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party.
- Infringement Claims. If the Services become, or in Vivun’s reasonable judgment are likely to become, the subject of a claim of infringement, then Vivun may: (i) obtain the right, at Vivun’s expense, for Customer to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; (iii) modify the Services so that it is no longer infringing. If Vivun, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then Vivun may suspend or terminate Customer’s use of the Services and provide Customer with a pro rata refund of prepaid fees.
- Process. The party seeking indemnification will provide prompt notice concerning the existence of an indemnifiable claim and cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations hereunder only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party will have full control and authority over the defense of any claim; provided, however, that: (i) the indemnified party may join in the defense at its own expense using counsel of its choice; and (ii) any settlement requiring the party seeking indemnification to admit liability or make any financial payment will require such party’s prior written consent, not to be unreasonably withheld or delayed.
- Limitation of Liability.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE UNDER THIS AGREEMENT FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS REVENUES, PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), GOODWILL, OR OTHER INTANGIBLE LOSSES. UNDER NO CIRCUMSTANCES WILL VIVUN BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN BY ANY THIRD PARTY. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL VIVUN BE LIABLE TO CUSTOMER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT PAID BY CUSTOMER TO VIVUN HEREUNDER DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
- Hosting of the Services; Export Restrictions. The Services are controlled and operated from facilities in the United States. Vivun makes no representations that the Services are appropriate or available for use in other locations. Customers who access or use the Services from other jurisdictions (or who allow their End Users to do so) do so of their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations.
- Modifications. Vivun may revise this Agreement at any time; provided, however, that no such modification shall include a reduction in Customer’s rights or Vivun’s obligations unless affirmatively agreed to by Customer in advance. If, in Vivun’s sole and reasonable discretion, the modifications being proposed are material, Vivun will notify Customer of such proposed modifications via email to the email address associated with Customer’s account. By continuing to access or use the Services after the posted effective date of modifications to this Agreement that do not include a reduction in Customer’s rights or Vivun’s obligations hereunder, Customer agrees to be bound by such modifications.
- Governing Law; Binding Arbitration and Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. This Agreement will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Claims relating to this Agreement or the Services will be resolved through final and binding arbitration, except as set forth below. The parties agree that the Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. Initial Dispute Resolution: The parties agree that most disputes can be resolved without resorting to litigation. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Accordingly, before initiating a lawsuit or arbitration, Customer Agrees to contact Vivun to attempt to resolve the dispute in good faith. Binding Arbitration & Class Action Waiver: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time the informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to the Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Thus, THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in state or federal court located in Alameda County, California. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Agreement, including, but not limited to any claim that all or any part of the Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the Parties and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration will be held in Alameda County, California. If any court or arbitrator determines that this arbitration provision is void or unenforceable for any reason or that the parties are not bound to arbitrate their claims, then the disputes, claims or controversies deemed not to be subject to arbitration must be litigated in state or federal court located in Alameda County, California.
- Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Agreement.
- Force Majeure. Except for payment obligations, neither Vivun nor Customer will be liable for inadequate performance to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions and interruption or failure of the Internet or any utility service. Vivun will not be liable for: (i) any problems resulting from Customer combining or merging Vivun Services with any hardware or software not supplied by Vivun or not identified by Vivun in writing as compatible with the Services; or (ii) any interruption or unavailability resulting from Customer’s use of the Services in an unauthorized or unlawful manner or any interruption resulting from the misuse, improper use, alteration, or damage of the Services; (iii) any problems caused by modifications in any version of the Services not made or authorized by Vivun in writing; and (vii) any problems resulting from Customer’s or any third party’s acts, errors or omissions or any systems not provided by Vivun.
- Assignment. Customer may not assign, delegate or subcontract this Agreement nor any of the obligations, rights and licenses granted hereunder without Vivun’s express written consent.
- Entire Agreement. This Agreement, together with the Order Form and Vivun Terms of Service, constitutes the entire agreement between Customer and Vivun and supersedes and replaces all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter herein, including any previously execution electronic version of a Vivun subscription agreement, commonly known as a clickthrough or end user license agreement (“Clickthrough”). If a court of competent jurisdiction deems any provision of this Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions hereof, which shall remain in full force and effect.
- No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a Party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
- Communications from Vivun. Customer agrees to receive electronically all communications, agreements, documents, notices, and disclosures that Vivun provides in connection with the Services (“Communications”) or this Agreement. Vivun may provide Communications in a variety of ways, including by e-mail, text, in-app notifications, or by posting them on the Vivun website or through the Services. Customer agrees that all Communications that Vivun provides to Customer electronically satisfy any legal requirement that such communications be in writing.
- “Content” means the visual information, documents, software, products and services contained or made available to Customer in the course of using the Services, other than Customer Data.
- “Customer Data” means any information (including without limitation personally identifiable information) provided, made available, or submitted by Customer to the Services or retrieved by the Services from Customer’s salesforce.com account other than User Details.
- “Documentation” means Vivun’s published documentation, knowledge base articles and other content, and technotes that are generally made available by Vivun to all customers, including without limitation the materials located at https://www.vivun.co.
- “End User(s)” means Customer’s named employees, representatives, consultants, contractors, partners, or agents who are authorized to use the Services by Customer through the Salesforce LMA (License Management Application) or the “User Management” facility of the Services.
- “Order Form” means (a) an electronic or tangible order form or (b) online order, setting forth commercial details of a subscription to the Subscription Service (including any Add-Ons) and the purchase of associated Professional Services (if any), and incorporating this Agreement by reference.
- “salesforce.com Service” means the service provided by salesforce.com to which Customer must be a subscriber in order to obtain the Service.
- “Subscription Term” means the length of time the Services will be available to Customer, as negotiated between Customer and Vivun.
- “User Details” means basic information collected by Vivun about Customer’s Salesforce.com users’ authorized by Customer to use the Services which is used for subscription management, activity logging, and technical support purposes.
- “Vivun System” means the hardware, software, network equipment, and other technology used by Vivun to deliver the Services, and any other of Vivun’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Vivun in providing the Services.
For questions about these or any Vivun terms or policies, email us at firstname.lastname@example.org.
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