Effective Date: December 17, 2014
This is a legally binding agreement between you and Viva, relating to your use of and access to Viva’s web site, mobile site, or otherwise. For purposes of this Agreement, the term “Viva” refers to Viva Holdings, LLC and any parents, subsidiaries or affiliated entity of Viva Holdings. For purposes of this Agreement you may be referred to as “you” or “Client.”
Privacy is an important issue. We take your privacy seriously. We do not sell any of your personal or business information to anyone. Your personal or business information may be used by any Viva entity, but only by Viva entities. Similarly, we do not sell any third party personal information provided to us by you to anyone, and limit access to such information [See §2.1, below]. We do not record any information about your reading habits or attempt to obtain any personal information other than what you provide.
2.1. HIPAA. Viva has a HIPAA compliance program to protect PHI. For more information on our HIPAA compliance see our “Legal FAQs” section.3. Security and Use of Credit Card Information
Viva uses Secure Sockets Layer (SSL) encryption when collecting or transferring sensitive data such as credit card information. SSL encryption is designed to make the information unreadable by anyone but us. Credit card numbers are used only for processing payments and are not used for other purposes.
Viva may also use technology to protect the Viva website from unauthorized or excessive use.
IF YOU ATTEMPT TO VIOLATE OR CIRCUMVENT ANY SYSTEM OR NETWORK SECURITY COMPONENTS OR TECHNOLOGY YOU MAY BE SUBJECT TO CIVIL OR CRIMINAL LIABILITY.4. Copyrights & Trademarks
The contents of this site, including its “look and feel” and other material contain copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video and graphics which are protected by copyright as a collective work under the United States copyright, trademark, and/or patent laws. Viva owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of this material without the express permission of Viva or the copyright owner is permitted. If copying, redistribution or publication of copyrighted material is permitted, you will make independent attribution and/or agree to make no changes in or deletion of any author attribution, trademark legend or copyright notice. You acknowledge that you do not acquire any ownership rights by accepting copyrighted material. The “Viva” “Viva Card” “Viva Pak” and “Viva System” are trademarks of Viva. Trademarks that are located within or on Viva cards or the Viva website otherwise owned or operated in conjunction with Viva shall not be deemed to be in the public domain but rather the exclusive property of Viva, unless such mark or site is under license from the trademark owner thereof, in which case such license is for the exclusive benefit and use of Viva unless otherwise stated.5. Client Representations and Warranties
5.1. You will not use any robot, spider, other automatic device or program, or manual process to monitor or copy the Viva website, or any portion thereof, without Viva’s prior express written permission.
5.2. You will not use any device, software, or routine to interfere or attempt to interfere with the proper working of the Viva website, or any portion thereof, or any transaction being conducted on or through the Viva website.
5.3. You will abide by all applicable local, state, national and international laws and regulations in your use of the Viva website.
5.4. You are solely responsible for your actions and the content of your transmissions to the Viva website.
5.5. You will not impersonate any person or entity or falsely state or otherwise misrepresent your identity, affiliation with any entity, or authority to act on behalf of any person or entity.
5.6. This Agreement constitutes a legal, valid, and binding obligation. You have complied with all internal actions necessary to authorize you to enter into this Agreement.
5.7. Client is fully qualified and legally entitled to offer and provide the promotional service that it will offer on Viva Cards.
5.8. If Client is a natural person, Client is over 18 years of age. If Client is an entity, Client is legally constituted and legally qualified to conduct business in each jurisdiction in which it conducts business.
5.9. Any valuation of an offer included on a Viva Card for Client with Client’s approval shall be a true and correct valuation, for which Client has a reasonable basis – meaning objective evidence that supports the claim.
5.10. Any Client Viva Cards that are redeemed with Client will be (i) honored; and (ii) swiped in so as to ensure that data is captured into Viva’s database for Client for accurate monitoring of the efficacy of the program. Client understands and agrees that should Client intentionally fail to swipe any Viva Cards when redeemed, Company may immediately terminate this Agreement, at its sole discretion.
5.11. Client is offering services related to the Viva Referral System in good faith.6. Warranty Disclaimier
6.1. Assumption of Risk. You expressly agree that your use of the Viva website, Viva Cards and/or the Viva System is done at your sole risk.
6.2. Disclaimer of Website warranties. Viva’s website(s) are provided “AS IS” and “AS AVAILABLE” without any representations or warranties, express or implied. Viva specifically does not warrant that any Viva website will be constantly available or available at all nor does Viva warrant that any information contained on any Viva website is complete, true, accurate, or non-misleading. Nothing on any Viva website constitutes or is meant to constitute professional advice of any kind.
6.3. Disclaimer of Product Warranties. All Viva products are supplied “AS IS” and “AS AVAILABLE” and there are no warranties, express or implied. Viva does not warrant any results from the use of Viva Cards or the Viva System, the accuracy, completeness, reliability, or content of any information (including, but not limited to, offer descriptions), services, or products offered or information contained on Viva Cards, and/or products and services accessible or available through the Viva System. Viva specifically disclaims any and all representations, warranties and conditions whether express or implied, including, without limitation, any warranty of non-infringement, merchantability and/or fitness for a particular purpose.7. Limitation of Liability
Client’s sole and exclusive remedy for any and all claims for damage under this Agreement, including general, special and punitive damages is limited to three (3) times the total sum of the Fees paid by Client under this Agreement. Company makes no representation regarding any person who redeems a Viva Card or how many, if any, become Client’s patients of record.8. Refund Policy
Client orders may be cancelled only on written notice. Viva will issue a refund on orders cancelled within 14 days of placement. Any cancellations after 14 days will be for credit against future orders only, less reasonable expenses related to the cancelled order.8a. Results Guarantee Program
The Results Guarantee Program is a binding contractual agreement for twelve consecutive months. Due to this program being heavily loaded on the front end (design, dashboard integration and mailers produced at start of program), there is a breakage fee of forty percent of the full cost of the program.8b. Patient Guarantee Specifications
Patient Guarantee: Your Viva package when used as directed provides a patient guarantee. When the program fails to produce the indicated number of patients, Viva will cover all expense to supply the client with additional marketing materials, in limited quantities until the guarantee has been met. This guarantee is limited to consistent participation in the Viva Program as intended and directed. This program is designed to go to each patient leaving the practice for referrals. The dashboard must provide indication that the program has been used as directed. Certain limitation and conditions may apply depending on market change. Guarantee is valid for one calendar year from the date of invoice, or as long as the client maintains weekly use of the dashboard, showing continuing participation in the program. The client will cover any necessary expense to cover the costs related to shipping and handling, not to exceed $40 per delivery.9. Indemnification
Client is solely responsible for their interactions with their customers and other users and/or recipients of Viva Cards. Client is solely responsible for the content and use of Viva Cards. Client therefore releases Viva, its parent, subsidiaries, employees, directors, managers, members, attorneys, agents and affiliates from any and all liability to the maximum extent permitted by law from any and all claims or liability related to any Viva product or service. This includes, without limitation, any action brought by a governmental or trade body related to any offer provided by Client on a Viva Card or the use of a Viva Card or the Viva System.
Client agrees to defend, indemnify and hold harmless Viva, its subsidiaries, affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including, but not limited to, attorneys’ fees, arising out of or related to any products or services offered by Client in connection with Viva Cards in violation of the terms of this Agreement.10. Governing Law
This Agreement shall be governed and construed in accordance with the laws of the State of California. Any disputes arising out of this Agreement shall be resolved through the American Arbitration Association in Los Angeles, California, and under its then-existing rules governing arbitration of commercial disputes. You agree to submit to personal jurisdiction in California for all matters related to your use of the Viva website.11. Arbitration
Viva and Client agree to make every reasonable effort to resolve any disagreements that arise between Client and Viva. If those efforts fail, Viva and Client agrees that any claim, dispute, or controversy either party may have against the other arising out of, relating to, or connected in any way with this Agreement shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”). Any award made by an arbitrator shall be binding upon the parties and may be entered into judgment in a court of competent jurisdiction. The prevailing party in such arbitration shall be entitled to attorney’s fees and costs. The parties agree further that: (a) the arbitration shall be held in Glendale, California; (b) the arbitrator shall apply California law, or Federal law, as applicable, consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (c) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only Client’s and/or Viva’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (d) with the exception of subpart (c) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (c) is found to be invalid, unenforceable or illegal and a request is made for any claims to be arbitrated as a class, then the entirety of this Section 8 shall be null and void, and neither Client nor Viva shall be entitled to arbitrate their dispute.12. Miscellaneous Terms
12.1. Nonwaiver. No waiver by Viva of any breach or default or failure to exercise any right allowed under this Agreement is a waiver of any preceding or subsequent breach or default or a waiver or forfeiture of any similar or future rights under this Agreement.
12.2. Headings. Section headings used herein are for convenience only and shall be of no legal force or effect.
12.3. Severability. If a court of competent jurisdiction holds any provision of this Agreement invalid, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of the Agreement shall continue in full force and effect.
12.4. The provisions of this Agreement apply equally to and are for the benefit of Viva, its subsidiaries, affiliates, members, managers, employees, merchants and its third-party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.
12.5. Complete Agreement. This Agreement constitutes the complete acknowledgement of, and agreement to, the terms and conditions relating to use of the Viva website.
12.6. You agree that regardless of any statute, regulation, or law to the contrary, any claim or cause of action arising out of or related to use of the site or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.