Viva Terms of Service
Last updated: Dec 3, 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 herein have the meaning given to them in the Order Form
If the Customer is a corporation, the individual signing the Order Form represents and warrants that they have the authority to bind the corporation.
- VIRTUAL ANALYST SERVICE
1.1. VA Services. During the Term (defined below at Section 2), 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 Support;
(b) Operations Support
In the event that a VA becomes unavailable to complete the Initial Term or a Renewal Term, Viva shall use commercially reasonable efforts to immediately replace the VA with another VA of similar qualifications and skills.
1.2. Order Forms.The scope of VA Service for each VA 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”). An Order Form is governed by the terms of this TOS and together they are the “Agreement” between the Customer and Viva.
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 next billing cycle.
1.4. Amendments. Viva reserves the right to update the provisions of these TOS from time to time at our sole discretion, and the updated TOS version supersedes all prior versions, as well as is effective and binding immediately after posting on our Website. However, modifications affecting termination of our operations or terms of payment shall take place with prior explicit notice to you at least thirty (30) days prior to the change implementation and, if not clearly rejected within 7 (seven) days of the notification, are deemed accepted and binding. Therefore, we advise you to periodically review the latest currently effective TOS. Your continued use of the VA Services on or after the date of the updated version of these TOS constitutes your acceptance of such updated terms. If you do not agree to our updated TOS, we would request that you review your concerns with Viva. Failing a mutually satisfactory outcome you can terminate the Agreement upon notice to Viva within 30 days of the updated TOS being posted on the Website.
1.5. Expenses. At the request of the Customer, the VA or Viva shall acquire any specialized tools up to a maximum Monthly amount of $200. These expenses will be invoiced immediately to Customer and payment is due upon receipt. 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. Viva operates based on a calendar that is mostly aligned with major Canadian and American holidays. VAs will not be required to seek pre-approval from the Customer to be unavailable or “offline” on those days designated by Viva as being a holiday (a “Holiday”). For further information regarding Viva’s Holiday schedule please visit: https://www.execviva.com/viva-holiday-schedule.
1.7. After Hours Communication. Unless otherwise agreed upon in writing, the VA shall not be required to respond to Customer or complete Customer requests on weekends, or prior to 8:00 am and after 5:00 pm on weekdays (hereinafter “After Hours”) determined by the local time where the VA is working. If a VA chooses to respond to the Customer or to complete Customer requests After Hours, this will operate to waive this Section 1.7 and does not constitute an agreement by Viva to ensure that the VA to continues to be available After Hours. After Hours will be billed as additional hours and in accordance with Section 1.3.
1.8. Sick/Vacation days. In the event that, due to the availability of the VA on a date that is not a Holiday, 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.
1.9. Tracking of Hours. The Customer acknowledges that it is the Customer’s responsibility to ensure that the hours purchased are used effectively. Unless there arises a dispute between the records of the Customer and Viva, Viva will not provide the client with a copy of their internal hour tracking records.
1.10. Hire Right. The Customer may not hire a VA directly and engage their services outside of this Agreement, without receiving Viva’s express written consent, and paying Viva the then current Monthly Fee as provided on the Website (without discount) for the package subscribed to for the longest period of time, pertaining to the specific plan in question, multiplied by 12. This is a genuine pre-estimate of the damages Viva will suffer and not a penalty. This fee enables Viva’s infrastructure, continuous training and support for their social mission for women in Latin America.
Further information regarding the above noted Services is available at execviva.com (the “Website”).
- VIVA SUPPORT SERVICES
During the term of this Agreement, 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:
(a) Feedback meetings with Viva regarding the performance of the VAs, the VA Services, the Support Services and the Website; and
(b) Continued oversight and training of the VAs.
- TERM AND TERMINATION
2.1. Term. The Term (“Term”) of the Agreement shall commence on the Effective Date listed in the first signed Order Form and shall automatically renew on the Renewal Term (except as otherwise amended in writing by the parties) for the subsequent Term, as applicable, until terminated.
2.2. Termination by the Customer: (a) The Customer may terminate the Agreement that is less than an Annual Term (as set out in the Order Form) upon one (1) Months’ notice prior to the end of the Initial Term or any Renewal Term. (b) The Customer may terminate the Agreement with an Annual Renewal Term or longer (as set out in the Order Form) upon three (3) Months’ notice prior to the end of the Initial Term or Renewal Term. (c) Failure to provide the requisite notice, will result in the Customer being charged for the upcoming Renewal Term.
2.3. Termination by Viva. Viva may terminate the Agreement and the Customer’s access to the Services: (a) Upon breach of the Agreement by the Customer which breach has not been remedied within 10 days’ notice to Customer; or (b) Upon one (1) Months’ notice at the end of an Initial Term or Renewal Term that is not an Annual Term; or upon three (3) Months’ notice prior to the end of an Initial Term or Renewal Term that is an Annual Term or longer.
- 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 fee. For clarity, the Customer must pay the amounts listed in each active Order Form.
3.2. USD. All Fees charged by Viva, and all amounts referenced in the Agreement, 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.
3.3. Payment terms: All Fees shall be billed to the Customer (at the commitment term frequency agreed upon in the Order Form) as a lump sum, in advance of the specified service period. Fees may be paid by a bank transfer, such as an Automated Clearing House (ACH) payment or other payment method, as permitted by Viva. Failure to pay on time is considered a breach of the agreement and at a minimum, will cause a disruption to your service.
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 permitted by law, plus the costs of collection (if any). Failure to Pay Fees on time may result in a termination of the Agreement at the discretion of Viva.
3.5. Refunds. Except as required by applicable law or stated otherwise in the Agreement. All Fees are non-refundable.
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.
3.7. Cost of Living Adjustment. The Monthly Fee set forth in each and every Order Form shall be subject to an Annual cost of living increase up to a maximum of 10%.
- 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 Agreement 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 Agreement.
- PROPRIETARY RIGHTS
5.1. Viva Ownership and Rights. Viva retains all right, title and interest in the Services, including but not limited to copyrights, patents, trademarks, trade names and trade secrets (“Viva Intellectual Property”). To the extent that any Services include the use of Viva Intellectual Property, Viva hereby grants to Customer a royalty-free, revocable, non-transferable, non-sublicenseable, non-exclusive license to use same solely for Customer’s use of the Services and only during the term of the Agreement.
5.2. Customer Ownership and Rights. Customer retains all right, title and interest in all information, content and data owned or licensed by Customer that Customer uploads or allows Viva to access during its use of the Services including without limitation copyright, patent, trademarks, trade names and trade secrets (collectively “User Property”). To the extent that Viva requires to use any User Property, Customer hereby grants to Viva a royalty-free, revocable, non-transferable, non-sublicenseable, non-exclusive license to use same solely for the purposes of delivery the Services. Customer represents and warrants that all consents, licenses and rights necessary to license User Property are obtained prior to the sharing any of User Property with Viva.
- Privacy, Confidential Information and Data Security
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. 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 Customer of such disclosure or use. Viva acknowledges and agrees that no rights or licenses to Confidential Information are granted or implied by the Agreement except as already explicitly stated.
6.5. Existence of the Agreement. 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 or any other medium) regarding the existence of the Agreement or any of its terms.
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 Viva will abide by when handling the User Property. Any additional costs associated with these specific data security protocols, which are different from 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.
- DISCLAIMER AND LIMIT OF LIABILITY
7.1. Disclaimer. Notwithstanding anything in the Agreement to the contrary, the Services 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, indirect, consequential, incidental, exemplary or special damages.
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. 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 that is not in compliance with the Agreement, including, but not limited to, claims that 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 Customer shall: (a) reimburse Viva 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.
- GENERAL TERMS
8.1. Start Date vs. Effective Date. Viva and the Customer agree and understand that VAs may begin performing the Services prior to the Effective Date of the Agreement. Viva and the Customer acknowledge and agree that the terms of the Agreement shall apply to any work performed by Viva before the Effective Date.
8.2. Notice. Notice under the Agreement shall be affected by providing notice via email to the individual specified in an Order Form as the Notice Contact.
8.3. 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 [firstname.lastname@example.org], 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.
8.4. No Joint Relationship. Nothing in the Agreement shall be construed to create any joint partnership, joint venture, employer-employee or agency relationship between Customer and Viva.
8.5. Governing Law. The Agreement is 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 Agreement.
8.6. Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement.
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. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement 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 payment obligations, neither party shall be liable for failure to perform any obligation under the Agreement 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 Agreement without Customer’s consent. Customer may not assign the Agreement.
8.10. Non-Solicitation. During the Term and for a period of 24 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 the Agreement.
8.11. Gifts. The Customer may provide an engaged VA with gifts, tokens, or appreciation provided that the value of such an item does not exceed $50. Any item above this amount shall require the prior written consent of Viva.
8.12. Definitions. Any use of the term “Month” or “Monthly” shall mean a period consisting of four (4) consecutive weeks. The use of the term “Quarter” or “Quarterly” shall mean a period consisting of three (3) consecutive Months. The use of the term “Annual” or ”Annually” shall mean a period consisting of twelve (12) consecutive Months.
8.13. 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 the Agreement which, by its nature, should survive termination or expiration of the Agreement will survive any such termination or expiration of the Agreement.