Homepage Terms of Service 2022

Terms of Service 2022

Last updated: Jan 7, 2022

All website content is for advertising purposes only and does not create any representations, warranties. The terms of these TOS shall take precedent over any website content. By signing an Order Form (defined below), which references these Terms of Service (“TOS”), the Customer agrees that they have had the opportunity to review these TOS and agrees to be bound by the terms set out herein.

Any capitalized terms used in these TOS and not otherwise defined have the meaning given to them in the Order Form.

If the Customer is a corporation, the individual singing the Order Form represents and warrants that they have the authority to bind the corporation.

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  1. VIRTUAL ANALYST SERVICE

1.1. VA Services. During the Term (defined below at Section 2) of this TOS, Exec Viva Inc. (“Viva”) will provide the Customer with one or more Virtual Analyst (“VA”) to assist the Customer with any of the following (the “VA Services”):

(a) Administrative assistance;

(b) Human Resources and operational assistance;

(c) Marketing assistance;

(d) Sales assistance; and/or

(e) any other Customer needs specifically agreed upon between Viva and the Customer.

  1. 2. Order Forms. The scope of VA Service for each VA included in this TOS shall be set forth in an order form (the “Order Form”), signed by the Customer prior to the commencement of VA Services. Unless otherwise agreed upon in writing, the service plan referenced in the Order Form, detailing the scope of services to be provided by the VA. shall refer to the introductory deck presentation provided to the Customer (“Intro Deck”).

1.3. Additional Hours. Any additional hours spent by the VA outside the prescribed plan on their Order Form shall be completed at an hourly rate of $35/hour, to be billed in the Customer’s the next billing cycle.

  1. 4. Amendments. 30 days before renewal of an Order Form, Viva shall provide the Customer with the terms Viva reserves to make changes to an Order Forms on 30 days’ notice.  Upon change to an active Order Form by Viva, the Customer shall have the choice to accept the revised Order Form or terminate the Order Form.

1.5. Expenses. Should the Customer require any specialised tools or resources which must be acquired by an engaged VA, the VA or Viva shall acquire these items without prior approval of the Customer up to a maximum Monthly amount of $200. These expenses will be reimbursed by the Customer and billed during the next billing cycle. Any amount greater than $200/Month shall be approved by the Customer in writing. Viva reserves the right to require the Customer to pay for any expenses in advance. (Potential expenses include, but are not limited to Rebtel, OtterAI, OpenPhone).

1.6. Statutory Holidays. Any day which is a statutory holiday in the jurisdiction in which the Customer is operation, shall be considered a holiday for the VA not requiring any pre-approval.

1.7. Sick/Vacation days. In the event that, due to the availability of the VA, an engaged VA is unable to complete their required number hours in a prescribed period,  the VA will complete the remaining hours during the next period, or, if occurring during the last period of the Term, the period will be extended until such remaining hours have been performed by the VA.   

Further information regarding the above noted Services is available at execviva.com (the “Website”).

  1. VIVA SUPPORT SERVICES

During the term of this TOS, Viva will provide the Customer with support (the “Support Services”) in managing the VA and the VA Services. This may include any of the following:

  1. Feedback meetings with Viva regarding the performance of the VAs, the VA Services, the Support Services and the Website; and
  2. Continued oversight and training of the VAs.

 

  1. TERM AND TERMINATION

2.1. Term. The Term “Term”) of the TOS shall commence on the Effective Date listed in the first signed Order Form and shall automatically terminate when all active Order Forms have been terminated in accordance with the terms of this TOS.

2.2. Termination of the TOS. A termination of the TOS by either party shall terminate all active Order Forms.

2.3. Termination by the Customer:

(a) The Customer may terminate any Order Form, or the TOS  after the Initial Term (as set out in the Order Form) upon 30 days’ notice.

(b) Failure to provide 30 days’ notice, will result in the Customer being charged for an additional one (1) Month of VA Services.

(c) Upon Termination by the Customer, any pre-paid Fees for unperformed work, outside the 30-day notice period, shall be refunded to the Customer on a pro-rated basis.

For greater clarity, the Customer may not terminate the TOS or the Order form during the Initial Term.

2.4. Termination by Viva. Viva may terminate the Customer’s access to the Services:

 2.4.1. Upon breach of these TOS by the Customer without notice.

2.4.2. Upon 30 days notice.

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  1. FEES AND PAYMENT TERMS

3.1. Fees. All fees payable by the Customer (the “Fees”) shall be set forth in the Order Form. The Fees shall include a Monthly fee and a non-refundable onboarding Commitment Deposit.

3.2. USD. All Fees charged by Viva, and all amounts referenced in the TOS and Order Forms, shall be 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. 

3.3. Payment terms:  All Fees shall be billed to the Customer either Quarterly or Annually (as agreed upon in the Order Form) in advance, unless otherwise specified in an Order Form. Fees may be paid by a bank transfer, such as an Automated Clearing House (ACH) payment or other payment method, as permitted by Viva.

3.4. Late Payments:  Any unpaid balance will be subject to interest at the less of one and a half percent (1.5%) compounded Monthly (19.56% annually), or the maximum legal interest rate, as well as the costs of collection (if any). Failure to Pay Fees on time may result in a termination of these TOS at the discretion of Viva.

3.5. Refunds.  Except as required by applicable law or stated otherwise in these TOS, Viva, will not refund any Fees once VA Service associated with that Fee has been fully performed.

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 [contact@execviva.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

3.6. Taxes.  The Fees 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 (where applicable) as a separate line item in its invoice, and you agree to pay such taxes on the same terms as the Fees.

 

  1. AUTHORIZED USAGE

4.1. The Customer’s use of the VA Services shall be subject to the restrictions set out in this Section 4; any unauthorized use of the VA Services shall result in immediate termination of the TOS by Viva.

4.2. The Customer here by undertakes and agrees to never:

(a) knowingly provide false or inaccurate information to Viva;

(b) decompile, disassemble or reverse engineer the VA Service, the Viva Service, or the Website (collectively the “Services”);

(c) alter, change or circumvent security related aspects of the Services;

(d) use any automated system (bot, spider, etc.) to access the Services;

(e) reproduce, rearrange, modify, change, alter, translate, create derivative works from, display, perform, publish, or distribute the Services;

(f) break, disrupt or attempt to break or disrupt any device used to support the Services or other’s experience of the Service or knowingly exploit a flaw or bug in the Services;

(g) store or transmit material that is infringing, libellous, unlawful or in violation of any person’s rights or a group of people’s rights using the Services;

(h) use the VA or the Services to provide information or data to a competitor of Viva;

(i) harass, abuse, stalk, threaten or impersonate any person or group of people, including any Viva contractor, employee or agent through the VA or the Services;

(j) sell, rent, lease or sublicense a VA or the VA Services or access thereto, unless expressly permitted by Viva;

(k) promote, encourage or undertake illegal activity using a VA or the Services; or

(l) infringe or violate third-party rights using the VA or the Services 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.

4.3. The Customer further agrees that it shall at all times treat VAs, and Viva contractors, employees, representatives and agents in a civil and respectful manner, as determined by Viva in its sole discretion.

4.4. The Customer shall always use the Services in compliance with the terms of this TOS.

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  1. PROPRIETARY RIGHTS

5.1. Viva Ownership and Rights.  Viva retains all right, title and interest in the Services, 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 Services.

5.2. 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 Services (“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 Services to you and no more.

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  1. Privacy, Confidential Information and Data Security

6.1. Privacy Policy and Privacy Law Compliance.   The Customer’s use of the Service is governed by a privacy policy (the “Privacy Policy”) detailing how Viva collects, uses and discloses personal and anonymous data about the Customer and any other personal data that the Customer shares with Viva, and is available at execviva.com/privacy-policy. ​

6.2. Personal data is different than business data and includes information that can identify a specific individual and details about that individual.  By agreeing to the TOS and/or using the Services, the Customer represent and warrant that its use of the Services complies with applicable privacy laws and are permitted to share the personal data that the Customer shares with Viva, including but not limited to any information includes the personal data of the employees, contractors, agents or representatives of the Customer.  If at any time the Customer disagrees with the Privacy Policy, it must immediately stop use of the Service and contact Viva at [contact@execviva.com]. 

6.3. Confidential Information.  Viva may receive information, data, documents, agreements, files and other materials regarding or concerning the Customer whether disclosed orally or disclosed or stored in written, electronic or other form or media, which is disclosed or otherwise furnished by the Customer, including that portion of all analyses, notes, compilations, reports, forecasts, studies, samples, statistics, summaries, interpretations and other documents prepared by or for the Customer which contain or otherwise reflect or are generated from such information, data, documents, agreements, files or other materials, whether or not marked, designated or otherwise identified as “confidential,” (the “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 the Customer and who has not received such Confidential Information from another in breach of a duty of confidentiality to the Customer (such knowledge must be proven with the burden on Viva).

6.4.Non-Disclosure.  Viva shall not disclose or use Confidential Information for any purpose other than to provide the Services to the Customer and to undertake work requested by the Customer that requires use of Confidential Information.  Viva shall not disclose any Confidential Information 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.

6.5. Existence of this TOS and Order Forms. The Customer further agrees that it shall not make, or cause to be made, any public statements (including, but not limited to direct or indirect communications by way of television, radio or social media platform) regarding the existence if this TOS and any Order Forms, and shall reproduce any of the terms therein for public consumption without the express written consent of Viva.

6.6. Use of Customer Information in Marketing. Notwithstanding anything contained herein to the contrary, the Customer grants Viva permission to use its name, logo and fact of the Customer’s engagement of Viva’s services in its marketing and promotional material.

6.7. Data Security. Viva is committed to ensuring that anything shared with it by its customers is secure.  In order to prevent unauthorized access or disclosure of User Property or the Services, 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 is shares with it on a daily and weekly basis.

6.8. Enhanced Data Security. The Customer is entitled to request specific data security protocols which are Viva will abide by when handling the User Property. Any additional costs associated with these specific data security protocols, which are different than Viva’s usual measures, may be borne by the Customer, at Viva’s sole discretion.

For more information on Viva’s current security practices, please review the Viva Data Security page at execviva.com/data-security.

 

  1. DISCLAIMER AND LIMIT OF LIABILITY

7.1. Disclaimer.  Notwithstanding anything in these TOS to the contrary, the Services is are provided to the Customer on “as is” basis and Viva and its subsidiaries, affiliates, officers, directors, employees, VAs, representatives and assigns (collectively, “representatives”), make no representations or warranties regarding the VAs or the Services, express, implied including without limitation quality, fitness for a particular purpose, non-infringement of third-party rights or compliance with laws within the Customer’s jurisdiction, that the Services will not cause damage to the Customer, User Property or property of others, or that operation of the Services will be uninterrupted, continuously available, error free or will not harm the Customer’s computers or mobile devices or result in lost data.  No oral advice or written information provided by Viva and the Representatives will create any warranty and the Customer shall not rely exclusively upon such advice or information.  The Customer shall bear the entire risk as to the performance, operation and quality of the Services.

7.2. Limitation of Liability.  Viva and its Representatives shall not be liable to the Customer for any claim, loss or damage of any kind arising out of or relating to the Services or third-party services, including without limitation direct, consequential, incidental or special damages.  To the extent that the above limitation of liability is enforceable, any claim that the Customer 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 the Customer.

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, the Customer agrees that Viva’s (and the Representatives’) maximum aggregate liability in any case whatsoever will be the total amount paid by the Customer to Viva in the 12 Months immediately preceding the date of the harm in question.

7.4. Indemnity.  Subject to the terms of this TOC, the Customer shall indemnify, and hold harmless, Viva and its Representatives against any and all losses, claims, demands, suits or proceedings made or brought against Viva and/or its Representatives in connection with the Customer’s use of the Services, including, but not limited to, claims that Viva, the Services, or the Customer: (a) infringed or misappropriated a third party’s intellectual property rights; (b) violated any applicable law, including any failure to obtain the required legal documentation, including applicable consent documentation, prior to using the Services; (c) caused bodily harm or death; or (d) committed an act of gross negligence or intentional misconduct.  Notwithstanding anything to the contrary in this Section 7.4, Viva may select its own legal counsel to represent its interests and Indemnifying Party shall: (a) reimburse Indemnified Party for its costs and legal fees and expenses immediately upon request as they are incurred; and (b) remain responsible to Viva for any losses indemnified under this Section.

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  1. GENERAL TERMS

8.1. Notice. Notice under these TOS shall be affected by providing notice via email to the individual specified in an Order Form as the Notice Contact.

8.2. Initial Dispute Resolution.  Most disputes between the Customer and Viva can be resolved without resorting to complex legal action.  If the Customer has any dispute with Viva, the Customer hereby agrees that before taking any formal legal action it will contact Viva at [legal@execviva.com], and provide a brief, written description of the dispute and contact information.  The Customer 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.

8.3. Binding Arbitration.  If the parties cannot come to a resolution within 30 days after the time an informal dispute resolution is initiated, the parties agree to that  any controversy, dispute, disagreement, or claim arising out of, relating to or in connection with this TOS or any Order Firms, or any breach thereof, including any question regarding its existence, validity, or termination, shall be finally and conclusively resolved by arbitration conducted in Toronto, Ontario.  The arbitration shall be commenced and conducted in accordance with the Canadian Arbitration Association Arbitration Rules (the “Rules”).  The arbitration fees and each party’s 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.

8.4. 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. 

8.5. Governing Law.  The Order Form, the TOS and Privacy Policy are governed by the laws of the province of Ontario and the laws of Canada, without reference to principles of conflicts of laws. The parties irrevocably attorn to the jurisdiction of the appropriate provincial and federal courts of the province of Ontario to hear any proceedings related to the Order Form, TOS or Privacy Policy.

8.6. Severability. If any term or provision of this TOS or an Order Form is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this TOS or an Order Form or invalidate or render unenforceable such term or provision in any other jurisdiction.

8.7. 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 this TOS, or an Order Form, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this TOS or an Order Form shall 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.

8.8. Force Majeure.  Except for any Fees or payment obligations, neither party 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.

8.9. Assignment.  Viva may assign the TOS without your consent or notice to you.  You cannot assign the TOS.

8.10. Non-Solicitation.  During the Term and for a period of 12 Months immediately following the end of the Term, the Customer shall not, directly or indirectly, on its own or on behalf of a third party, hire, retain or solicit any VA, employee or independent contractor of Viva unless exercising the Hire Right provided for in these TOS.

8.11. Gifts. The Customer may provide an engaged VA with gifts, tokens, or appreciation provided that the value of such item us under $50 Any item above this amount shall require the prior written consent of Viva.

8.12. One Month. Any mention of a one (1) Month period, in this TOS, the Order Forms, or any other communication between the Customer, Viva or a Representative, shall mean a four (4) week period.

8.13. Quarterly. Any mention of a Quarterly period, in this TOS, the Order Forms, or any other communication between the Customer, Viva or a Representative, shall mean a three (3) “Months” as defined in 8.12.

8.14. Annually. Any mention of an Annual/Annually in this TOS, the Order Forms, or any other communication between the Customer, Viva or a Representative, shall mean a twelve (12) “Months” as defined in 8.12.

8.15. Survival.  The rights and obligations of the parties set forth in Sections 5, 6, 7, and this 8 and any right or obligation of the parties in this TOS which, by its nature, should survive termination or expiration of this TOS will survive any such termination or expiration of this TOS.