Terms & Conditions 2021
Last updated: Mar 18, 2021
This Terms of Service (the “TOS”) is entered into between you and your organization (“you” or “your”) and Exec Viva Inc. (“Viva”), and applies to Viva services, including but not limited to the Viva website www.execviva.com (the “Website”) and Viva remote administrative support (altogether, the “Service”) and supplements any order form entered into between you and Viva (each, an “Order From”).
BY EXECUTING AN ORDER FORM THAT REFERENCES THE TOS OR BY USING THE SERVICE YOU ARE AGREEING TO BE BOUND BY THE TOS.
IF EXECUTING AN ORDER FORM ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THE ORGANIZATION AND ARE AGREEING ON BEHALF OF THAT ORGANIZATION. WHERE YOU ARE AGREEING ON BEHALF OF AN ORGANIZATION, “YOU” OR “YOUR” REFERS TO THAT ORGANIZATION.
- DESCRIPTION OF THE SERVICE
Viva connects executives with highly trained virtual analysts (“VAs”) to help with business and administrative needs. Throughout your business relationship with Viva, you will be able to use the Service to delegate tasks to your VA. You may also have regular meetings with Viva where you can provide feedback concerning the performance of your VA, the Website, and the Service in general. Viva shall regularly contact and continue training Viva VAs to ensure they are efficiently managing their assigned tasks and constantly improving the value that they are delivering to you.
The scope of the Service shall be initially set forth in your Order Form and may include multilingual services, trained backup VAs, other services requested by you in your Order Form, services chosen by you or as otherwise agreed to in writing by you and Viva. You may change the scope of the Service at any time by informing your VA or Viva of your desire to alter the scope of the Service.
- FEES AND PAYMENT TERMS
2.1 Fees. You shall pay Viva those fees set forth in the Order Form, including any initial onboarding/commitment fees (which are non-refundable), for your initial term (the “Initial Term”) and any recurring term, such as a monthly, quarterly or annual term, (the “Renewal Term”) as set forth in the Order Form (the “Fee”). Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less) plus all expenses of collection, until fully paid.
2.2 Payment Terms. Viva shall invoice you for the Service as set forth in the Order Form or as otherwise agreed to in writing. You shall pay Viva the Fee, the lessor of within 15 days of invoice or the start of a Term, which is earned upon payment. Viva shall charge the Fee in US Dollars but may convert any payment to local currencies, such as Canadian Dollars, for invoicing purposes using a conversion rate determined by Viva, acting reasonably. Currency exchange rates are set by Viva at the beginning of each quarter and shall be displayed on all applicable invoices. The Fee may be paid by a bank transfer, such as an Automated Clearing House (ACH) payment or other payment method, as permitted by Viva.
2.3 Plan Details. Unless otherwise agreed in writing, the Order Form provides for the selection of different Service plans (each, a “Plan”). Your plan shall be outlined in the Order Form. There are 2 plans – 100 monthly hours of support (intermediate) at $2,500, and 160 hours monthly support hours at $4,000 (enhanced). In addition to the Fee associated with your Plan, should there be a client need for specific work provided with the aid of a software subscription, you shall reimburse Viva for these expenses incurred up to $500 (calculated on an annual basis) on any invoice (examples include but are not limited to; Rebtel, OtterAI, etc). All expenses above $500 (on an annual basis) are required to be approved in writing by you.
2.4 Additional Hours. If your use of Viva’s monthly support hours exceeds the capacity agreed to in your applicable Plan, additional hours shall be billed at the rate of $30 USD per hour, to be paid in the calendar month following the month in which such excess support hours were provided.
2.5 Fee Changes. All Fees are as described on the Order Form or the TOS, but may be updated periodically by Viva, in its sole discretion. Viva shall provide you with at least 30 days’ notice of any change in Fees, following which you may either choose to accept Fees or terminate the Service. If you verbally approve of an upgrade or downgrade of a Plan when communicating with Viva, any associated change in the Fees shall be deemed to be accepted upon email confirmation by Viva and you agree to make full payment of any Fee change on your next invoice.
2.6 Refunds. Except as required by applicable law, Viva, in general, is unable to offer a refund of every payment to Viva (each, a “Refund”), including the Fee, once the Service is fully provided to you. When you terminate your relationship with Viva (except in cases where you have breached the terms of the TOS or the Order Form) and still have unused support hours in a Plan that you have with Viva, we will automatically provide a refund on a pro-rata basis based on the number of unused support hours remaining in the Plan upon termination. If you believe that you are entitled to a Refund, other than as automatically provided to you upon termination, you may request a Refund by emailing Viva at [email@example.com], including the email header “REFUND REQUEST” and describing in the body of the email how you qualify for a Refund and other relevant details of your request.
2.7 Taxes. The Fee excludes taxes (including but not limited to sales, use, gross receipts, value-added, GST or HST, personal property), duties and charges, which you shall pay. When Viva sends an invoice, Viva shall include taxes as a separate line item in its invoice, and you agree to pay such taxes on the same terms as the Fee.
- TERM AND USE OF THE SERVICE
3.1 Term. Unless otherwise specified in the Order Form, this TOS is effective starting on the date the Order Form is executed (the “Effective Date”) and continues until the date specified in the Order Form or until terminated according to the TOS (the “Term“).
3.2 Authorized Use. When using the Service, you may not:
- knowingly provide false or inaccurate information to Viva;
- decompile, disassemble or reverse engineer the Service;
- alter, change or circumvent security related aspects of the Service;
- use any automated system (bot, spider, etc.) to access the Service;
- reproduce, rearrange, modify, change, alter, translate, create derivative works from, display, perform, publish, or distribute the Service;
- break, disrupt or attempt to break or disrupt any device used to support the Service or other’s experience of the Service or knowingly exploit a flaw or bug in the Service;
- store or transmit material that is infringing, libellous, unlawful or in violation of any person’s rights or a group of people’s rights;
- use the Service to provide information or data to a competitor of Viva;
- harass, abuse, stalk, threaten or impersonate any person or group of people, including any Viva contractor, employee or agent;
- sell, rent, lease or sublicense the Service or access thereto, unless expressly permitted by Viva;
- promote, encourage or undertake illegal activity; or
- infringe or violate third-party rights including but not limited to: (i) contractual rights; (ii) copyright, patent, trademark or trade secret rights; (iii) privacy rights; (iv) publicity rights; or (v) confidential information, as determined by Viva in its sole and absolute discretion.
3.3 Suspension and Termination. Viva may suspend or terminate access to the Service, without notice or compensation to you, at any time for any reason (or for no reason) including but not limited to technical issues, a lack of civility in your interactions with Viva (including with any contractors, employees, VAs or other Viva support staff), your non-compliance with the TOS, your failure to pay the Fee on time, or your failure to adhere to the terms of an agreement with Viva (including the Order Form). Viva has sole discretion to lift a suspension or reverse terminated access. Your access to the Service automatically terminates upon the earliest of the date: (a) Viva terminates your access to the Service; (b) of your non-compliance with the TOS, as determined by Viva in its sole discretion; or (c) 14 days following the date on which you provide notice to Viva of your intention to terminate the Service.
- PROPRIETARY RIGHTS
4.1 Viva Ownership and Rights. Viva retains all right, title and interest in the Service, including but not limited to copyrights, copyrightable works, patents, patent rights, trademarks, trade names and trade secrets. The TOS does not convey any right, title or interest in, or constitute the sale of any right to the Service or any related software used as part of the performance of the Service.
4.2 Your Ownership and Rights. You retain all right, title and interest in all information, content and data owned or licensed by you that you upload or allow Viva to access during your use of the Service (“User Property”). The TOS does not convey any right, title or interest in, or constitute the sale of any right to, User Property, and you represent and warrant that all consents, licenses and rights necessary to license User Property are obtained prior to the sharing any of User Property with Viva. Viva shall not use or access User Property stored with us except when you request that Viva use User Property in order to facilitate your use of the Service and only as reasonably limited by your request, and in such cases you hereby grant Viva a limited and revocable license to User Property under all copyright, trademark, trade secret, patent, privacy and publicity rights and any other intellectual or industrial property rights you own or control to use, display, modify, record, translate, transmit or otherwise exploit in order to facilitate the provision of the Service to you and no more.
5.1 Confidential Information. Viva may receive confidential information not known or available outside of you (except when known outside you and under a duty of confidentiality) including but not limited to: business plans, product or service plans, analyses, forecasts, predictions or projections, intellectual property, trade secrets, software, code, hardware, prototypes, technology, technical information, business models, pricing and pricing strategies, marketing ideas, data (including sales data), sales projections, customer lists, employee lists, financing plans, valuations, capitalization, budgets and other non-public information (collectively, “Confidential Information”). Notwithstanding the above, Confidential Information excludes: (a) any information generally available to the public (otherwise than through any act or omission of Viva); (b) any information obligated to be disclosed by law; and (c) any information known by Viva prior to the Effective Date or obtained from a third party who is not under a confidentiality obligation to you and who has not received such Confidential Information from another in breach of a duty of confidentiality to you (such knowledge must be proven with the burden on Viva).
5.2 Non-Disclosure. Viva shall not disclose or use Confidential Information for any purpose other than to provide the Service to you and to undertake work requested by you that requires use of Confidential Information. Viva shall not disclose any Confidential Information of yours except to its employees, contractors or agents on a need-to-know basis and only if such employees, contractors or agents agreed to similar confidentiality terms. If Viva becomes aware of any unauthorized disclosure or use of Confidential Information, Viva shall promptly notify you of such disclosure or use. Viva acknowledges and agrees that no rights or licenses to Confidential Information are granted or implied by this TOS except as already explicitly stated.
5.3 Non-Solicitation. During the Term and for a period of 12 months immediately following the end of the Term, you shall not, directly or indirectly, on its own or on behalf of a third party, hire, retain or solicit any client, any VA, employee or independent contractor of Viva about whom you became aware of, or with whom you had contact, over the course the Term.
5.4 Hiring a VA Off Platform. Depending on the particular Plan you signed up for, Viva does permit you to hire the virtual analyst separately from the Viva Service (the “Hire Right”). The Hire Right is only available to you with Viva’s written permission prior to exercising the Hire Right. Should you choose to remove a VA from Viva by hiring them as part of your business, there will be a one-time fee of $25,000 USD (the “Hire Away Fee”). A portion of the Hire Away Fee goes to the VA as a reward for their hard work.
Viva is committed to ensuring that anything you share with us is secure. In order to prevent unauthorized access or disclosure of User Property or the Service, Viva has put in place suitable physical, electronic and managerial procedures to safeguard and secure Viva systems and includes the use of VPNs and the regular deletion of User Property that you share with us on a daily and weekly basis, which you may adjust accordingly upon request. For more information on Viva’s current security practices, please review the Viva Data Security page at execviva.com/data-security.
- DISCLAIMER AND LIMITATION OF LIABILITY
7.1 DISCLAIMER. THE SERVICE IS PROVIDED TO YOU “AS IS” AND VIVA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND ASSIGNS (COLLECTIVELY, “REPRESENTATIVES”), DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR COMPLIANCE WITH LAWS WITHIN YOUR JURISDICTION. WITHOUT LIMITING THE FOREGOING, VIVA MAKES NO REPRESENTATIONS THAT USE OF THE SERVICE WILL NOT INFRINGE ANY COPYRIGHT, PATENT, TRADEMARK LAW OR OTHER RIGHTS HELD BY A THIRD PARTY. FURTHER AND WITHOUT LIMITING THE FOREGOING, VIVA AND ITS REPRESENTATIVES MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE, SERVICES PERFORMED AND PRODUCTS PROVIDED BY VIVA OR OTHER THIRD PARTIES, WILL COMPLY WITH APPLICABLE LAWS WITHIN YOUR JURISDICTION, MEET YOUR REQUIREMENTS, NOT CAUSE DAMAGE TO YOU, USER PROPERTY OR PROPERTY OF OTHERS, OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, CONTINUOUSLY AVAILABLE, ERROR FREE OR WILL NOT HARM YOUR COMPUTER OR MOBILE DEVICE OR RESULT IN LOST DATA. NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY VIVA AND THE REPRESENTATIVES WILL CREATE ANY WARRANTY AND YOU SHALL NOT RELY EXCLUSIVELY UPON SUCH ADVICE OR INFORMATION. YOU BEAR THE ENTIRE RISK AS TO THE PERFORMANCE, OPERATION AND QUALITY OF THE SERVICE.
7.2 LIMITATION OF LIABILITY. VIVA AND ITS REPRESENTATIVES SHALL NOT BE LIABLE TO YOU FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE SERVICE OR THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION DIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES. TO THE EXTENT THAT THE ABOVE LIMITATION OF LIABILITY IS NOT APPLICABLE IN YOUR JURISDICTION, ANY CLAIM THAT YOU MAY HAVE AGAINST VIVA AND THE REPRESENTATIVES MUST BE COMMENCED NO LATER THAN 6 MONTHS AFTER THE DAY ON WHICH THE CLAIM IS DISCOVERED OR OUGHT TO HAVE BEEN DISCOVERED BY YOU.
7.3 MAXIMUM AGGREGATE LIABILITY. NOTE THAT SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TERMS OR WARRANTIES OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES AND, IF ANY DISCLAIMER OR LIMITATION OF LIABILITY IS FOUND UNENFORCEABLE, VOID OR DOES NOT FULLY SHIELD VIVA AND THE REPRESENTATIVES FROM LIABILITY, YOU AGREE THAT VIVA’S (AND THE REPRESENTATIVES’) MAXIMUM AGGREGATE LIABILITY IN ANY CASE WHATSOEVER WILL BE THE TOTAL AMOUNT PAID BY YOU TO VIVA IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE HARM IN QUESTION.
7.4 Indemnity. You shall defend and indemnify Viva and its Representatives against any claim, demand, suit or proceeding made or brought against Viva and its Representatives in connection with your use of the Service, including claims that Viva, the Service, or you: (a) infringe or misappropriate a third party’s intellectual property rights; (b) violate any applicable law, including any failure to obtain the required legal documentation, including applicable consent documentation, prior to using the Service; (c) cause bodily harm or death; or (d) commit an act of gross negligence or intentional misconduct. Your obligation to indemnify Viva and its Representatives arises so long as Viva: (x) promptly gives written notice of the claim against Viva; (y) gives you sole control of the defense and settlement of the claim except that you shall not enter any settlement or disposition that attributes liability or confers a financial obligation on Viva without Viva’s advance written consent, which shall not be unreasonably withheld or delayed; and (z) gives all reasonable assistance, at your expense.
- DISPUTE RESOLUTION
8.1 Initial Dispute Resolution. Most disputes between you and Viva can be resolved without resort to complex legal action. If you have any dispute with Viva, you agree that before taking any formal legal action you will contact us at [firstname.lastname@example.org], and provide a brief, written description of the dispute and your contact information. You and Viva agree to use commercially reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
8.2 Binding Arbitration. If the parties cannot come to a resolution within 30 days after the time an informal dispute resolution is initiated, you agree to that any disputes or claims between you and Viva, including the Representatives, shall be resolved by final and binding arbitration to be conducted in Toronto, Ontario. The arbitration shall be commenced and conducted in accordance with the Canadian Arbitration Association Arbitration Rules (the “Rules”). Your arbitration fees and your share of the arbitrator’s compensation shall be governed by and, where appropriate, limited by the Rules. BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS LIMITED BY APPLICABLE LAW.
9.1 No Joint Relationship. Nothing in the Order Form or the TOS shall be construed to create any joint partnership, joint venture, employer-employee or agency relationship between you and Viva.
9.4 Force Majeure. Except for any Fee payment obligations, neither you nor Viva shall be liable for failure to perform any obligation under the TOS or the Order Form to the extent such failure is caused by a force majeure event (including acts of God, pandemics (including government-imposed recommendations and restrictions due to a pandemic), natural disasters, war, civil disturbance, action by a government entity, strike, and other causes beyond reasonable control). The party affected by the force majeure event shall provide notice to the other party within a commercially reasonable time and shall use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event shall be performed as soon as reasonably possible when the force majeure event concludes.
9.5 Assignment. Viva may assign the TOS without your consent or notice to you. You cannot assign the TOS.
9.6 Survival. Sections 2 to 9 survive termination of the TOS.