Terms of service last updated Augus 25, 2020

Welcome to Vive! Vive Technologies Inc. (“Vive”) provides real estate workflow improvement and client collaboration services accessible via our website located at www.gotvive.com (the “Site”) and our mobile device application (the “App”). To make these Terms easier to read, the Site, our services and the App are collectively called the “Services”. Please read these Terms of Service and our Privacy Policy (collectively, the “Terms”) carefully because they govern your use of our Services.

Agreement to Terms

By clicking “Sign-up” or by downloading, installing, or otherwise accessing or using our Services, you agree that you have read and understood, and, as a condition to your use of the Services, you agree to be bound by these Terms. If you are not eligible, or don’t agree to be bound by these Terms, do not use the Services. Your use of the Services, and Vive’s provision of the Services to you, constitutes an agreement between you and Vive.

ARBITRATION NOTICE. Unless you opt out of arbitration within 30 days of the date you first agree to these Terms by following the opt-out procedure specified in the “Dispute Resolution” section below and except for certain kinds of disputes described in the “Dispute Resolution” section, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND VIVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.

Privacy Policy

Please refer to our Privacy Policy for information on how we collect, use and disclose information from our users. You acknowledge and agree that your use of the Services is subject to your assent to our Privacy Policy. The Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

Changes to Terms or Services

We may modify the Terms at any time on a going-forward basis, at our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site and the App or through other communications. It’s important that you review the Terms whenever we modify them. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Services. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion. We will have no liability for any change to the Services or any suspension or termination of your access to or use of the Services.

Who May Use the Services

Eligibility
You may use the Services only if you are 18 years or older and are not barred from using the Services under applicable law. To make a purchase via the Services (described in the Section titled “Purchases” below), you must be 18 years or older and capable of forming a binding contract. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Services; and (c) your registration and your use of the Services is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.

Registration and Your Information
If you want to use certain features of the Services you’ll have to create an account (“Account”). You can do this via the App or the Site or through your account with certain third-party social networking services such as Facebook, Google or Multiple Listing Service (each, an “SNS Account”). To create an Account, you may be required to provide certain information, such as your name, email address, phone number, and your listing agent ID (if you are accessing the Services as a real estate agent). If you choose the SNS Account option, we’ll create your Account by extracting from your SNS account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS account permit us to access

It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.

Using the Services

Via the Services, users can select from a variety of options to help streamline workflow and communication across real estate transactions. Depending on whether you are accessing the Service as a homeowner, real estate agent, buyer, or service provider, some of these Terms may or may not apply to you. You can also use the paid functionality of the Services to utilize the enhanced functionality of the Services or purchase items that are offered for sale through the Services (the “Products”), as described in further detail under the Section titled “Purchases” below.

Not all activities described on the Services or Products are suitable for everyone. Do not use the Services while driving, operating heavy machinery, or performing other tasks that require attention and concentration. You understand and agree that you are solely responsible for your use of the Services.

Purchases

Payment Terms
General Payment Terms When you purchase a Subscription (as defined below) or a Product (each, a “Transaction”), we may ask you to supply additional information relevant to your Transaction, such as your credit card number, the expiration date of your credit card and your address(es) for billing and delivery (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. The amounts due and payable by you for a Transaction through the Services will be presented to you before you place your order. If you choose to initiate a Transaction via the Services, you authorize us to charge all sums for the orders that you make, any level of Subscription and any Product you select as described in these Terms or published by us, and to provide your Payment Information to third party service providers so we can complete your Transaction and agree (a) to pay the applicable fees, including any commissions to Vive on the Transaction, and any taxes; (b) that Vive may charge your credit card or third party payment processing account, including, but not limited to, your account with the app store or distribution platform (like the Apple App Store, Google Play Store) where the App is made available (each, an “App Provider”), for verification, pre-authorization and payment purposes; and (c) to bear any additional charges that your App Provider, bank or other financial service provider may levy on you as well as any taxes or fees that may apply to your order. You’ll receive a confirmation email after we confirm the payment for your order. Your order is not binding on Vive until accepted and confirmed by Vive. All payments made are non-refundable and non-transferable except as expressly provided in these Terms.

If you have any concerns or objections regarding charges, you agree to raise them with us first and you agree not to cancel or reject any credit card or third party payment processing charges unless you have made a reasonable attempt at resolving the matter directly with Vive.

Vive may suspend or terminate access to the Services, including fee-based portions of the Services, for any account for which any amount is due but unpaid. In addition to the amount due for the Services, a delinquent account may be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.

Vive reserves the right to not process or to cancel your order in certain circumstances, for example, if your credit card is declined, if we suspect the request or order is fraudulent, or in other circumstances Vive deems appropriate in its sole discretion. Vive also reserves the right, in its sole discretion, to take steps to verify your identity in connection with your order. You may need to provide additional information to verify your identity before completing your Transaction (for clarity, such information is included within the definition of Payment Information). Vive will either not charge you or refund the charges for orders that we do not process or cancel.

Future Functionality
You agree that your Purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Vive regarding future functionality or features.

Changes to Pricing Terms
Vive reserves the right to change its pricing terms for Subscriptions and Products at any time and Vive will make reasonable efforts to keep pricing information published on the website up to date and notify you in advance of such changes becoming effective. Changes to the Subscription pricing terms will not apply retroactively and will only apply for Subscription renewals after such changed pricing terms have been communicated to you. If you do not agree with the changes to Vive’s pricing terms then you may choose not to renew your Subscription in accordance with the section “Subscriptions Automatically Renew Until You Cancel & How to Cancel Your Subscription.” Vive, at its sole discretion, may make promotional offers with different features and different pricing to any of Vive’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.

Subscriptions Real Estate Agents
If you are accessing the Services as a real estate agent, the following subscription terms also apply. Vive offers certain enhanced features of the Services which you can purchase as a monthly, yearly or lifetime subscription (“Subscription”). A description of features associated with the Subscriptions is available via the Services.

Subscriptions Automatically Renew Until You Cancel & How to Cancel Your Subscription
All amounts are payable and charged: (i) for one-off purchase (e.g. lifetime Subscription), at the time you place your order; and (ii) For monthly or yearly Subscriptions, at the beginning of the Subscription and, because each such Subscription renews automatically for an additional period equal in length to the expiring Subscription term until you cancel it, at the time of each renewal until you cancel, using the Payment Information you have provided (or to a different payment method if you change your payment information). You must cancel your monthly or yearly Subscription before it renews to avoid the billing of the fees for the next Subscription period. If you purchase your Subscription via the Site, you can cancel the renewal of your Subscription at any time by contacting us by email at support@gotvive.com. If you purchase your Subscription via an App Provider, you can cancel the renewal of your Subscription at any time with the App Provider. You will not receive a refund for the fees you already paid for your current subscription period and you will continue to receive the Services ordered until the end of your current Subscription period.

Licenses; Feedback; Ownership

Subject to your complete and ongoing compliance with these Terms, Vive grants you, solely for your a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Services.

Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Services; (b) make modifications to the Services; or (c) interfere with or circumvent any feature of the Services, including any security or access control mechanism. If you are prohibited under applicable law from using the Services, you may not use it.

We welcome feedback, comments and suggestions for improvements to the Services or Products (“Feedback”). You can submit Feedback by emailing us at feedback@gotvive.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicenseable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose and in any manner.

Content and Content Rights

For purposes of these Terms, (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that users (including you) provide to be made available through the Services. Content includes without limitation User Content.

Content Ownership
Vive does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Vive and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.

Rights in User Content Granted by You
By making any User Content available through Services you hereby grant to Vive a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed, in connection with operating and providing the Services and Content to you and to other users. You may have the option to delete or archive your User Content. If you choose to delete your User Content, you acknowledge and agree that it will take some time (about 14 days) for us to completely remove your User Content from the Services and our servers. You acknowledge and agree that you or others may still see the User Content on the Services during this period, and the licenses you grant to Vive and other users of the Services in this section will stay effective through that period. You are solely responsible for the security, storage, and backup of your User Content. Vive is not obligated to maintain or make available any User Data, nor is Vive obligated to recover any User Data that has been lost or deleted.

By providing User Content to or via the Services to other users of the Services, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Services.

Vive disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Services. By providing User Content to or via the Services, you affirm, represent, and warrant that:

• You are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Vive and users of the Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Vive, the Services, and these Terms;
• Your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Vive to violate any law or regulation; and
• Your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.

You understand that when using the Services you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, we do not permit copyright-infringing activities on the Services. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to User Content.

Vive does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Services by its users. You acknowledge and agree that Vive reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Services for operational and other purposes. If at any time Vive chooses to monitor the Content, Vive still assumes no responsibility or liability for the Content or any loss or damage incurred as a result of the use of the Content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.

Rights in Content Granted by Vive
Subject to your compliance with these Terms, Vive grants you a limited, non-exclusive, non-transferable, non-sublicenseable license to download, view, copy and display the Content solely in connection with your permitted use of the Services.

Digital Millennium Copyright Act

DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about materials posted on the Service, you may contact our Designated Agent at the following address:

Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information:

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
• A description of the copyrighted work or other intellectual property that you claim has been infringed;
• A description of the material that you claim is infringing and where it is located on the Services;
• Your address, telephone number, and email address;
• A statement by you that you have a good faith belief that the use of the material on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
• A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Repeat Infringers. Vive will promptly terminate the accounts of users that are determined by Vive to be repeat infringers.

Communications

Text Messaging. Vive and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Services, as well as marketing messages. You may opt out of receiving marketing text messages at any time by sending an email to support@gotvive.com indicating that you no longer wish to receive marketing texts along with the phone number of the mobile device receiving the texts. You may continue to receive text messages for a short period while we process your request, and you may also receive text messages confirming the receipt of your opt-out request. Operational text messages are essential to the Services. If you do not wish to receive operational text messages from us, do not use the Services. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive marketing text messages is not a condition of any purchase or use of the Services. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.

Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the App is not on. You can turn off notifications by visiting your mobile device’s “settings” page.

Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the instructions on how to unsubscribe in the promotional email itself.

Rights and Terms for Apps

Rights in the App Granted by Vive
Subject to your compliance with these Terms, Vive grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App. Vive reserves all rights in and to the App not expressly granted to you under these Terms. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means.

Additional Terms for App Store Apps
If you accessed or downloaded the App from the Apple Store, then you agree to use the App only: (i) on an Apple-branded product or device that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple Store Terms of Service.

If you accessed or downloaded the App from an App Provider, then you acknowledge and agree that:

• These Terms are concluded between you and Vive, and not with App Provider, and that, as between Vive and the App Provider, Vive, is solely responsible for the App.
• App Provider has no obligation to furnish any maintenance and support services with respect to the App.
• In the event of any failure of the App to conform to any applicable warranty, you may notify App Provider and App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of an App to conform to any warranty will be the sole responsibility of Vive.
• App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• In the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Vive will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
• App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms, App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third party beneficiary thereof.
• You must also comply with all applicable third-party terms of service when using the App.
• Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights.
• Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms.
• You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

Prohibitions

You agree not to do any of the following:

• Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
• Use, display, mirror or frame the Services, or any individual element within the Services, Vive’s name, any Vive trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Vive’s express written consent;
• Access, tamper with, or use non-public areas of the Services, Vive’s computer systems, or the technical delivery systems of Vive’s providers;
• Attempt to probe, scan, or test the vulnerability of any Vive system or network or breach any security or authentication measures;
• Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Vive or any of Vive’s providers or any other third party (including another user) to protect the Services;
• Attempt to access or search the Services or download content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Vive or other generally available third party web browsers;
• Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
• Use any meta tags or other hidden text or metadata utilizing a Vive trademark, logo URL or product name without Vive’s express written consent;
• Use the Services for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
• Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
• Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
• Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
• Impersonate or misrepresent your affiliation with any person or entity;
• Violate any applicable law or regulation; or
• Encourage or enable any other individual to do any of the foregoing.

Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

Links to Third Party Websites or Resources

The Services and App may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.

Termination

If you violate any provision of these Terms, your authorization to access the Services and these Terms automatically terminates. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. If we terminate you access to and use of the Service without cause or if you terminate these Terms for a material breach by us, we will refund you any pre-paid but unused fees on a pro-rata basis. You may cancel your Account and terminate these Terms at any time by sending an email to us at support@gotvive.com. If you purchased Subscription via an App Provider, you should also cancel your Subscription with the App Provider directly. Upon any termination, discontinuation or cancellation of these Terms, the Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, indemnity obligations, limitations of liability, and dispute resolution provisions.

Warranty Disclaimers

The Services, Products and Content are provided “as is,” without warranty of any kind, whether express or implied. Without limiting the foregoing, we explicitly disclaim any warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment or non-infringement and any warranties arising out of course of dealing, usage or trade.

We make no warranty that the Services or Products will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content and we do not warrant that any of those issues will be corrected.

No advice or information, whether oral or written, obtained by you from the Services or Vive or any Content available through the Services will create any warranty regarding Vive or the Services that is not expressly stated in these Terms. we are not responsible for any damage that may result from the Services and your dealing with any other Service user. You understand and agree that you use any portion of the Services and Products at your own discretion and risk, and that we are not responsible for any damage to your property (including your computer system or mobile device used in connection with the Services) or any loss of data, including User Content.

The limitations, exclusions and disclaimers in this section apply to the fullest extent permitted by law. Vive does not disclaim any warranty or other right that Vive is prohibited from disclaiming under applicable law.

Indemnity

You will indemnify and hold harmless Vive and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content; (ii) your violation of these Terms or any applicable law or regulation; (iii) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.

Limitation of Liability

Neither Vive nor any other party involved in creating, producing, or delivering the Services, Products or Content will be liable for any incidental, special, exemplary or consequential damages, including, but not limited to, lost profits, loss of data or goodwill, service interruption, computer damage or system failure or the cost of substitute Services or Products arising out of or in connection with these Terms or from the use of or inability to use the Services, Products or Content, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Vive has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.

Except as provided in the “Arbitration Process” section below and to the fullest extent permitted by law, in no event will Vive’s total liability arising out of or in connection with these Terms or from the use of or inability to use the Services, Products or Content exceed the amounts you have paid to Vive for use of the Services, Products or Content or fifty dollars ($50), if you have not had any payment obligations to Vive, as applicable. The exclusion and limitations of damages set forth above are fundamental elements of the basis of the bargain between Vive and you.

Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risks between the parties under these Terms. This allocation is an essential element of the basis of the bargain between the parties. each of these provisions is severable and independent of all other provisions of these terms. the limitations in this section will apply even if any limited remedy fails of its essential purpose.

Dispute Resolution

Governing Law
These Terms and any action related thereto will be governed by the laws of the State of Washington without regard to its conflict of laws provisions.

Agreement to Arbitrate
You and Vive agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services, Products or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court; (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”); (iii) to pursue an enforcement action through the applicable federal, state, or local agency if that action is available; and (iv) to seek injunctive relief in a court of law in aid of arbitration. Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Vive with written notice of your desire to do so by email at support@gotvive.com within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Vive with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) through (iv) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Vive with an Arbitration Opt-out Notice, will be the state and federal courts located in King County, Washington and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Vive with an Arbitration Opt-out Notice, you acknowledge and agree that you and Vive are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Vive otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph (such as the class action waiver) is held unenforceable, then the portions this “Dispute Resolution” section that pertain to arbitration will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

Arbitration Rules
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration form and a separate form for Demand for Arbitration for California residents.) Vive’s address for Notice is: Vive Technologies Inc., 4288 pike st NE, Auburn, WA 98002. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Vive may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Vive must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Vive in settlement of the dispute prior to the award, Vive will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure
Any arbitration hearing will take place at a location to be agreed upon in King County, Washington, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.

Arbitrator’s Decision
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Vive will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

Fees
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Vive will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes
Notwithstanding the provisions of the “Modification” section above, if Vive changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to feedback@gotvive.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Vive’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Vive in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

General Terms

Interpretation. These Terms constitute the entire and exclusive understanding and agreement between Vive and you regarding the Services, Products and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Vive and you regarding the Services, Products and Content. If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Dispute Resolution” section above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Vive’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Vive may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notice. Any notices or other communications provided by Vive under these Terms, including those regarding modifications to these Terms, will be given: (i) by Vive via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

No Waiver. Vive’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Vive. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

Consent to Electronic Communications. By using the Services, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.

No Support. We are under no obligation to provide support for the Services. In instances where we may offer support, the support will be subject to published policies.

International Use. The Services are intended for visitors located within the United States. We make no representation that the Services is appropriate or available for use outside of the United States. Access to the Services from countries or territories or by individuals where such access is illegal is prohibited.

Contact Information

If you have any questions about these Terms or the Services or Products, please contact Vive at support@gotvive.com.