Terms & Conditions

Welcome to VIVAYA.com (the “Website”), an online marketplace operated by TRANSCEND UNLIMITED LLC (hereafter “us” “we” “our” or “Vivaya”) connecting students (“Seekers or “Seeker Members”) with a network of independent contractor instruction providers (hereafter “Guides” or “Guide Members”). These Terms of Use and Conditions (the “Agreement”) binds you or the entity you represent (“you” or “your”) to the terms and conditions set forth herein when you use or access the Website or any of our software, applications, sites, materials, products, tools and other offerings (collectively, the “Services”). If you wish to use our Services, you must read, comply with and agree to be bound by the terms of this Agreement. If you object to anything in this Agreement, do not use our Services.

 

1. Acceptance of Terms of Use Agreement

This Agreement is an electronic contract that sets out the legally binding terms of your use of our Services, whether or not you register as a “Seeker Member” or “Guide Member” (each may be referred to as a “Member”). This Agreement includes our Privacy Policy, Seeker and Guide Policies, our billing policies and any further terms of use for our Services, which are all incorporated herein by reference. This Agreement may be modified by us from time to time, such modifications to be effective when provided in writing or upon posting within our Services. Certain parts of our Services may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between this Agreement and terms and conditions posted for a specific area of or within our Services, the latter terms and conditions will take precedence with respect to your use of or access to that specific Service, but this Agreement shall still apply to our legal relationship. You have the right to receive this Agreement in non-electronic form, either before or after you electronically sign the Agreement, by sending a written request and self-addressed stamped envelope to: Transcend Unlimited LLC, P.O. Box 659, Wainscott, NY 11975.

 

2. Eligibility

Membership in or use of our Services is void where prohibited. Any access to or use of our Services by anyone under the age of majority is expressly prohibited and requires consent to this Agreement by a parent or legal guardian. By using our Services, you represent and warrant to us that you are either a legal adult or, if under the age of 18, have obtained proper consent from a parent or legal guardian. If you use our Services on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. By using our Services, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.

 

3. How the Service Works

We are an online marketplace for Students (Seekers) and a network of independent contractor Providers (Guides). We do not endorse, hire or employ the Provider Members nor are we responsible or liable for any interactions involved between Provider Members and their respective Student Members or between Members. Our Services are separate and distinct from the services of Provider Members.

For Provider Members, we offer various hosted products to support instruction including marketing, scheduling, billing and communication tools. Provider Members can also apply to use our Services where prospective Students can review their profile, communicate with Provider Members and book and pay for lessons and other services ancillary thereto (called an "Offering").

For Seeker Members, we provide a marketplace to find a network of independent contractor Guide Members and schedule lessons and other services ancillary thereto. Users may be able to review Offering as an unregistered user of our Services; however, if you wish to book a lesson as a Seeker, to create an Offering as a Guide, to use hosted tools or use certain Services, you must first become a registered Member. See the “Membership” section of the Website for more information.

From time to time, we may provide new or temporary Services, such as on demand tutoring, group lesson or classes and other products, materials and services that may or may not be limited to Members. We reserve the right to restrict any Services only to Members and discontinue any product or Services at will. If a particular Provider, product or Service is discontinued or unavailable, we reserve the right to provide substitute Provider, product or Service.

 

4. Registration/Membership

You may use some of our Services at no direct cost. However, in order to access additional features and Services, including the ability to book or manage lessons, you must register as a user. To become a registered user, you agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete throughout your use of the Services. A registered user may not have more than one active VIVAYA Account. We reserve the right to suspend or terminate your Vivaya account at any time.

 

a. User Account, Password and Security

User Account: For certain types of features available through the Website we require the use of encryption technologies provided for your Protection and/or use of a UserID and password after setting up a User Account. We use reasonable precautions to protect the privacy of your UserID password and User Account information, and all credit card information is collected and transmitted by utilizing a Secure Socket Layer (“SSL”) connection. Accordingly, your payment information is encrypted using an SSL connection. It is not expected to be read in an intelligible form as it travels to the Website. You, however, are ultimately responsible for protecting your UserID, password und User Account information from disclosure to third parties, and you are not permitted to circumvent the use of required encryption technologies. You agree to (i) immediately notify Provider of any unauthorized use of your UserID, password or User Account, or any other breach of security, and (ii) ensure that you exit from your User Account at the end of each session.

 

b. Access to the Digital Properties

The Digital Properties are intended for use by adults who reside in the United States, or those adults outside of the United States who, by using the Digital Properties, consent to use of the Digital Properties in accordance with United States laws, these Terms and our Privacy Policy. If Customers chooses to access the Digital Properties from locations outside of the United States, you do so on your own initiative and at your own risk. By using or attempting to use the Digital Properties, Customer is representing to VIVAYA that he meets the foregoing eligibility requirements and have the legal capacity to enter into and be bound by these Terms.

Customer is solely responsible for any charges incurred in obtaining access to the Digital Properties, including without limitation charges from Customer’s Internet service provider and/or wireless carrier. While Customer may be able to purchase certain goods or services through the Digital Properties, the Digital Properties themselves are currently provided for free. Provider reserves the right to change the nature of this relationship at any time, without prior notice or liability to you. 

 

c. Availability

Provider has no obligation to maintain the Digital Properties, in whole or in part, nor does it have any obligation to provide Customer with any related maintenance or support services. Provider reserves the right to render the Digital Properties, in whole or in part, temporarily or permanently unavailable or to otherwise terminate, suspend access to, replace, or modify the Digital Properties or any portion thereof, at any time and for any or no reason, without prior notice or liability to you. Any Content or other information made available on or through the Digital Properties is also subject to change at any time and without prior notice or liability to Customer.

 

 

d. Customer Account

Some portions of the Digital Properties may invite or require Customer to create an account and associated log-in credentials, and Customer may not be able to access certain Content or features, functionalities, or services of the Digital Properties, without creating and logging into such an account. In some instances, the right to create an account may be limited to current members of Provider in good standing. Customer agrees to provide true, accurate and current information when creating an account, and Customer is responsible for updating his account information as needed to ensure it remains current. Customer is responsible for maintaining the confidentiality of Customer’s log-in credentials, and he hereby acknowledges and agrees that he is fully responsible and liable for all usage and activities that occurs under your account, whether authorized by him or not. Customer agrees to notify VIVAYA immediately if he knows of or suspects any unauthorized use of his account or password or any other breach of security related to his account. Notwithstanding anything to the contrary in these Terms, Vivaya reserves the right to deny the creation of, suspend access to or terminate any account(s), or to remove or modify Content, features, functionalities and/or services available to account holders, at any time in its sole discretion and without prior notice or liability to Customer.

e. Using the digital Properties

Subject to your compliance with these Terms, Provider gives you the limited, non-exclusive, non-transferable, and revocable right to access and use the Digital Properties solely for your personal and non-commercial use. However, VIVAYA does not give Customer any right to, and Customer hereby agrees not to:

  • Use the Digital Properties or any portion thereof for any commercial use or for the benefit of any other person or entity, including without limitation by selling, renting, leasing, assigning, transferring, hosting, or otherwise commercially exploiting any Digital Property or any portion thereof.

 

  • Copy, stream, reproduce, duplicate, archive, store (other than standard browser caching), download, publish, modify, make derivative works of, reverse engineer, translate, or distribute any Digital Property or portion thereof by any means, other than as expressly allowed by these Terms or as otherwise clearly contemplated by the features and functionalities of the Digital Properties – for example, by sharing Content through a social media “share” feature or downloading and using the Provider’s mobile app. Customer may also print or save to his computer, phone or personal device a reasonable number of pages or Content from the Digital Properties, but solely for his own personal, internal and non-commercial purposes.
  • Remove, alter, bypass, avoid or circumvent any copyright, trademark or other proprietary notice, digital rights management mechanisms or other content protection measures included in or associated with the Digital Properties or any Content. Similarly, Customer may not modify, remove, or otherwise interfere with any embedded player that may made available in connection with certain Content.

 

  • Use any software robots, spiders, crawlers, or similar data mining, gathering or extraction tools or methods, whether automated, programmed or manual, including without limitation to access, acquire, copy, monitor or make submissions through any portion of the Digital Properties.

 

  • Knowingly or intentionally take any other action that may impose an unreasonable burden or load on the Digital Properties or its servers and infrastructure. Any unauthorized use by Customer, or otherwise under his account or on his computer or personal device, of the Digital Properties any portion thereof will immediately terminate the limited rights granted to Customer under these Terms, and such termination will be without prejudice to any other right or remedy Provider may have under applicable law or in equity.

 

f. Independent Contractor Status

Our Services are separate and distinct from the services of the Providers. You acknowledge that Provider Members are not employees or agents of VIVAYA but are independent contractors who operate a separate and distinct business from VIVAYA. As such, we do not endorse or control the Providers, the manner or method of service to you, exercise no control over your working relationship with the Provider Member and do not warrant your safety or the service of any Provider Member. We urge all users of our Services to be responsible and careful about their use of our Services, any transaction entered into as a result of our Services and interactions with Members.

 

g. General Disclaimer

We disclaim all, and assume no responsibility for, evaluating or verifying the accuracy, suitability, truthfulness or authenticity of any information contained within the Offerings or of any information posted or provided by a Member We assume no responsibility for ensuring a Member’s compliance with any applicable laws, rules and regulations or this Agreement. We have not inspected the location where any instruction will be provided. We are not responsible for the conduct, whether online or offline, of any user of our Services. Under no circumstances will we or any of our employees, officers, agents, advertisers or affiliates be responsible for any loss or damage, including personal injury or death, resulting from anyone's use of the Website or our Services, any content posted on the Website or transmitted to Members, or any interactions between users of our Services, whether online or offline. We cannot guarantee and do not promise any specific results from use of our Services.

Some of our Services may require Students to have a computer and a sustained and reliable internet connection. We do not provide refunds for technical failures, power outages or unreliable internet connections beyond our control.

Our Services may give you access to links to third-party websites ("Third Party Sites"), either directly or through Providers. We do not endorse any of these Third Party Sites and do not control them in any manner. Accordingly, we do not assume any liability associated with Third Party Sites. You need to take appropriate steps to determine whether accessing a Third Party Site is appropriate, and to protect your personal information and privacy on such Third Party Site.

We cannot guarantee that each Member is at least the required minimum age, nor do we accept responsibility or liability for any content, communication or other use or access of our Services by persons under the age of majority in violation of this Agreement. Also, it is possible that other Members or users (including unauthorized users, or "hackers") may post or transmit offensive or obscene materials using our Services and that you may be involuntarily exposed to such offensive and obscene materials. It also is remotely possible for others to obtain personal information about you due to your use of our Services, and that the recipient may use such information to harass or injure you. We are not responsible for the use of any personal information that you disclose using our Services. Please carefully select the type of information that you post on the Website or release to others using our Services. WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER MEMBERS OR USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF THE WEBSITE, OUR SERVICES OR OTHERWISE.

 

h. Health Disclaimer

Physical exercise, in all of its forms and with or without the use of equipment such as blocks, straps or any other equipment that may be suggested by the instructor, is a strenuous physical activity. Accordingly, you are urged and advised to seek the advice of a physician before beginning any physical exercise class. Provider is not a medical organization and its instructors cannot give you medical advice or diagnosis. All suggestions and comments relating to the use of equipment, poses, moves and instruction are not required to be performed by you and are carried out at your election while following the instructor. No exercise shown should be construed as any form of such medical advice or diagnosis.

By following the class Customer represents that he understands that physical exercise involves strenuous physical movement, and that such activity carries the risk of injury whether physical or mental. Customer understands that it is his responsibility to judge his physical and mental capabilities for such activities. It is his responsibility to ensure that by participating in classes, Customer will not exceed his limits while performing such activity. Customer understands that, from time to time instructors may suggest physical adjustments or the use of equipment and it is his sole responsibility to determine if any such suggested adjustment or equipment is appropriate for his level of ability and physical and mental condition.

 

i. Warranty Disclaimer

OUR WEBSITE, CONTENT, SUBMITTED CONTENT, COURSES, AND ANY OTHER MATERIALS MADE AVAILABLE ON OR THROUGH THE USE OF OUR SERVICES ARE PROVIDED "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND AND, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS OR WELLNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, FREEDOM FROM ERRORS, SUITABILITY OF CONTENT, OR AVAILABILITY.

 

j. Code of Conduct

While using our Services you agree not to:

  • Restrict or inhibit any other visitor or Member from using our Services, including, without limitation, by means of "hacking" or "cracking" or defacing any portion of our Services;
  • Use our Services for any unlawful purpose;
  • Express or imply that any statements you make are endorsed by us, without our prior written consent;
  • Transmit (a) any content, language, imagery, or information that is unlawful, fraudulent, threatening, harassing, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes on our or any third party's intellectual property or other rights; (b) any material, non-public information about companies without the authorization to do so; (c) any trade secret of any third party; or (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us);
  • Engage in spamming or flooding;
  • Breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
  • Transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component;
  • Modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Website or our Services;
  • Remove any copyright, trademark, or other proprietary rights notices contained on the Website or applied to our Services;
  • "Frame" or "mirror" any part of the Website or our Services without our prior written authorization;
  • Use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine," or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents;
  • Harvest or collect information about Website visitors or Members without their express consent;
  • Create more than one profile without our express written consent;
  • Permit anyone else whose account or subscription was terminated, or who is not a Member, to use our Services through your subscription, username or password;
  • Engage in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes;
  • Transfer your account or user ID to another party without our consent;
  • Be disruptive in any lesson or group instruction;
  • Solicit any instructor or user to work with or for another company for employment, independent contracting services, performances, or other service; or
  • Engage in any communication related to sexual conduct, nudity, or which expresses profanity.

 

5. Pricing

a. Classes, Workshops and 1-1 Lessons

Class, Workshop and 1-1 Lesson prices are agreed to at the time of payment for the number of lessons purchased. Lesson prices vary by Guide and lesson type and are subject to change at any time. Seeker Members and Guide Members are obligated to honor the prices established at the time of payment.( See Privacy Policy here additional Student Policies set forth) You’ll find an event cancellation link in both your seeker dashboard once you’ve logged in and in the email confirmation you received after registering. You can cancel at any time prior to the start of the session. If you don’t receive your refund automatically, please email us at info@vivayalive.com about the cancellation so that we can manually process your refund. 1-1 Lessons scheduled to occur in less than 24 hours are not eligible for refund. Additional pricing terms and conditions are contained within Seeker and Guide accounts and within email correspondence from VIVAYA. Refunds are not provided for acts taken in violation of this Agreement or for technical failures, power outages or unreliable internet connections beyond our control.

b. Memberships and Refunds

Membership prices are agreed to at the time of payment for the number of membership purchased. Seeker Members and Guide Members are obligated to honor the prices established at the time of payment.( See Privacy Policy here additional Student Policies set forth) You’ll find a membership cancellation link in the quick links section of your seeker dashboard once you’ve logged in. You can cancel the start of the paid membership any time prior to the automatic monthly or annual renewal. Free trial Seekers may cancel the start of the paid membership any time during the free trial prior to the start of the paid membership. Membership payments are not eligible for refund. Additional pricing terms and conditions are contained within Seeker and Guide accounts and within email correspondence from VIVAYA. Refunds are not provided for acts taken in violation of this Agreement or for technical failures, power outages or unreliable internet connections beyond our control.

 

6. Class Cancellation policy

VIVAYA allows its members to cancel their classes right up to the start of the class.  

 

7. Gift Memberships

a. Purchase

You may purchase a gift membership or class package for a third party. When you do, the fee charged includes access to VIVAYA software, Vivaya Classroom, a designated number of lessons, and other Vivaya Student Member services.

b. Redemption

Gift Memberships must be redeemed through Website. The Gift Membership balance is applied to the recipient’s account and is then used for 6-month access from time of purchase to VIVAYA. Lessons included in the Membership are redeemable at any time during the membership, regardless of the price of lessons at purchase or at redemption. The Member may select the instructor and the lesson details best suited for his/her needs.

c. Expiration

Gift Memberships expire six months after purchase. All services included with the Membership must be used within that time. Lessons schedules are subject to the terms found in the Student Policies.

d. Limitations

Gift Memberships cannot be used to purchase other Gift Memberships. Gift Memberships cannot be refunded, reloaded, resold, transferred for value, redeemed for cash or applied to any other account, except to the extent required by law.

e. Gift Membership Policies

Gift Memberships and their use on the Website are subject to compliance with all agreements and policies in effect. We may provide Gift Membership purchasers with information about the redemption status of Gift Memberships.

f. Fraud

We reserve the right to close customer accounts and request alternative forms of payment if a fraudulently obtained Gift Membership is either redeemed through Website or is redeemed and used to make purchases on the Website.

 

8. Term

This Agreement will remain in full force and effect while you use our Services and/or are a Member. You may terminate your membership at any time, for any reason, by sending an email to info@vivayalive.com. To help us analyze and improve our Services, you may be asked to provide a reason for your resignation/cancellation. We may terminate your membership and/or subscription at any time through notice to your email address on file. If we terminate your membership because you have breached this Agreement, you will not be entitled to any refund of unused subscription fees. All decisions regarding the termination of accounts shall be made in our sole discretion. We are not required to provide you notice prior to terminating your membership. We are not required, and may be prohibited, from disclosing a reason for the termination of your account. After your membership or subscription is terminated, all terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination.

 

9. Non-Circumvention

During the term of this Agreement and for two years thereafter, no Member shall, directly or indirectly, circumvent, initiate, solicit, negotiate, contract or enter into any business transactions with any Member introduced by us through our Services, without our consent. In case of such circumvention, such Member agrees and guarantees that such Member will pay a legal monetary penalty that is equal to the commission or fee we would have realized in such transactions, had Member not circumvented our rights under this Agreement. 

 

10. No Non-Permitted Use by Members

Use of our Services is only with our permission, which may be revoked at any time, for any reason, in our sole discretion. Illegal and/or unauthorized uses of our Services may be referred for criminal prosecution.

 

11. Account Security

You are responsible for maintaining the confidentiality of your username and password. You shall not disclose your password to any unauthorized third party and will take sole responsibility for any activities or actions under your VIVAYA Account, whether or not you have authorized such activities or actions. You agree to (a) immediately notify us of any unauthorized use of your username or password or any other breach of security, and (b) ensure that you exit from your account at the end of each session. We will not be liable for any loss or damage arising from your failure to comply with this provision. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. If you share your computer with others, you may wish to consider disabling any auto-sign in features if linked to your Vivaya account.

 

12. Your Interactions with Other Members and Our Limitation of Liability

a. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS. YOU UNDERSTAND THAT NOT ALL GUIDES ON THE WEBSITE HAVE BACKGROUND CHECKS AND THAT WE DO NOT PERFORM BACKGROUND CHECKS ON STUDENT MEMBERS. NOT ALL JURISDICTIONS OR CRIMES ARE EVALUATED AS PART OF THE CRIMINAL BACKGROUND CHECK. WE DO NOT ATTEMPT TO VERIFY THE QUALIFICATION OR STATEMENTS OF OUR MEMBERS. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF MEMBERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE MEMBERS.

b. NO MEMBER IS OBLIGATED TO MEET OFFLINE WITH ANY OTHER MEMBER. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER MEMBERS OF OUR SERVICES. YOU UNDERSTAND THAT WE MAKE NO GUARANTEES, EITHER EXPRESS OR IMPLIED, REGARDING YOUR ULTIMATE EXPERIENCE WITH MEMBERS YOU MEET THROUGH OUR SERVICES. YOU DO SO AT YOUR OWN RISK AND AT YOUR OWN PERIL.

c. IN NO EVENT SHALL VIVAYA AND/OR ITS OFFICERS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, AND/OR INCIDENTAL, INCLUDING LOST PROFITS, ARISING OUT OF OR RELATING TO ANY ACT OR OMISSIONS OF YOU, TAKE LESSONS AND/OR ITS OFFICERS, EMPLOYEES, AGENTS OR AFFILIATES, OUR THIRD PARTY INVESTIGATIVE SERVICE, ANY MEMBER OR ANYONE ELSE IN CONNECTION WITH THE USE OF OUR SERVICES OR THE WEBSITE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF OUR SERVICES OR PERSONS YOU MEET THROUGH OUR SERVICES, OR OTHERWISE.

d. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND TO THE MAXIMUM EXTENT ALLOWED BY LAW,THE LIABILITY OF VIVAYA AND/OR ITS OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES, TO YOU AND YOUR HEIRS AT LAW FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR OUR SERVICES DURING THE PRECEDING TWELVE MONTHS, UP TO A MAXIMUM OF FIVE THOUSAND DOLLARS.

 

13. Content within our Services

a. Proprietary Rights

The Website and our Services contains the copyrighted material, trademarks, and other proprietary information of VIVAYA, and its licensors. Except for that information which is in the public domain or for which you have been given written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information.

 

b. Reliance on Content, Advice, etc.

Opinions, advice, statements, reviews, offers, or other information or content made available through our Services, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content.

 

14. Content Posted by You

As a Member, you may be able to post content, including uploading videos, photos and providing reviews of Members. You are solely responsible for the content that you publish or display (hereinafter, “post”) using our Services, or transmit or display to other Members. You will not post on the Website or Service, or transmit or display to other Members, any defamatory, inaccurate, false, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). By posting Content using our Services, you automatically grant, and you represent and warrant that you have the right to grant, to us, our affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing. You further represent and warrant that public posting and use of your content by us will not infringe or violate the rights of any third party.

 

15. Customer Service

We may provide assistance and guidance through our customer care representatives. Telephone calls between you and our customer care representatives may be recorded for quality assurance purposes. If we feel that your behavior towards any of our customer care representatives or other employees is at any time threatening or offensive, we reserve the right to immediately terminate your membership and you will not be entitled to any refund of unused subscription fees.

 

16. Modification to Services

We reserve the right at any time to modify or discontinue, temporarily or permanently, our Services (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of our Services. Notification of changes to our Services may be posted within your Member profile, on the Website or communicated through our Services.

 

 

17. Copyright Policy

The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. Copyright law. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limiting the foregoing, if you believe that your work has been copied and posted on the Website or used in any of our Services in a way that constitutes copyright infringement, please contact us immediately at info@vivayalive.com

 

18. Member Disputes

You are solely responsible for your interactions with other Members. We reserve the right, but not the obligation, to monitor disputes between you and other Members.

 

19. Privacy and Communications

Use of our Services is also governed by our Privacy Policy. When you become a Member, you agree and consent to receive email messages from us. These emails may be transactional or relationship communications relating to our Services, such as administrative notices and service announcements or changes, or emails containing commercial offers, promotions or special offers from us. Please see our Privacy Policy for more information regarding these communications.

 

20. Links

For Customer’s convenience, the Digital Properties may contain links to websites, downloadable apps, or other digital properties, products or services of other persons or entities, including without limitation social media networks (collectively, “Third-Party Sites”). When you click on one of these links, you are leaving the Digital Properties and accessing a Third-Party Site over which Provider has no control. Including a link to a Third-Party Site is not and should not be viewed as an endorsement by, or affiliation with, Provider of that Third-Party Site, its operator or its contents, services and/or offerings. Customer’s rights and obligations when accessing and using these Third-Party Sites are not governed by these Terms (or Provider’s Privacy Policy) and will instead be governed by the terms and policies of those Third-Party Sites, and we encourage Customer to carefully read those terms and policies of these Third-Party Sites, as their practices may differ from ours. TO THE MAXIMUM EXTENT PERMITTED BY LAW, VIVAYA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THIRD-PARTY SITES AND HAS NO RESPONSIBILITY FOR SUCH THIRD-PARTY SITES OR THE CONTENTS, FEATURES OR OPERATION OF SUCH THIRD-PARTY SITES. YOU ACKNOWLEDGE AND AGREE THAT YOUR DECISION TO ACCESS AND USE ANY THIRD-PARTY SITE IS AT YOUR SOLE RISK, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Vivaya WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S ACCESS TO, USE OF OR RELIANCE ON ANY THIRD-PARTY SITES.

 

21. U.S. Export Controls

Software from this Website (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Website or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

 

22. Arbitration and Governing Law

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND VIVAYA HAVE AGAINST EACH OTHER ARE RESOLVED.

You and VIVAYA agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the Terms of Use & Conditions, your use of or access to our Services, or any products or services sold or purchased through our Services, will be resolved in accordance with the provisions set forth in this Section (“Agreement to Arbitrate”).

a. Applicable Law

You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of New York, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and VIVAYA, except as otherwise stated in this Agreement.

b. Agreement to Arbitrate

You and VIVAYA each agree that any and all disputes or claims that have arisen or may arise between you and VIVAYA relating in any way to or arising out of this or previous versions of the Terms of Use, your use of or access to VIVAYA's Services, or any products or services sold, offered, or purchased through VIVAYA shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.

    • 1. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND VIVAYA AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND Vivaya AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
    • 2. Arbitration Procedures. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement as a court would. All issues are for the arbitrator to decide, except as prohibited by law.

The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word "arbitrator" in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration: rather, the AAA's rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.

A party who intends to seek arbitration must first send to the other, by certified mail, written Notice of Dispute ("Notice"). The Notice must include a description of the nature and basis of the claims the party is asserting and the relief sought. The Notice to VIVAYA should be sent to Vivaya, Attn: Litigation Department, Re: Notice of Dispute, P.O Box 659, Wainscott, NY 11975. Vivaya will send any Notice to you to the physical address we have on file associated with your Vivaya account; it is your responsibility to keep your physical address up to date.

If you and VIVAYA are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Vivaya may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Vivaya at the following address: ARISE  NOW, P.O Box 659, Wainscott, NY 11975. In the event Vivaya initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your VIVAYA account. Any settlement offer made by you or Vivaya shall not be disclosed to the arbitrator.

The arbitration hearing shall be held in New York County or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or VIVAYA may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Vivaya subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Vivaya may attend by telephone, unless the arbitrator requires otherwise.

The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same VIVAYA user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

    • 3. Costs of Arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, VIVAYA will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Vivaya should be submitted by mail to the AAA along with your Demand for Arbitration and Vivaya will make arrangements to pay all necessary fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Vivaya for all fees associated with the arbitration paid by Vivaya on your behalf that you otherwise would be obligated to pay under the AAA's rules.
    • 4. Severability. With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief") is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the Agreement will continue to apply.
    • 5. Opt-Out Procedure. IF YOU ARE A NEW VIVAYA USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE ("OPT-OUT") BY MAILING US A WRITTEN OPT-OUT NOTICE ("OPT-OUT NOTICE"). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO Vivaya, ATTN: LITIGATION DEPARTMENT, RE: OPT-OUT NOTICE, Attn: Litigation Department, Re: Opt Out Notice, P.O. Box 659, Wainscott, NY 11975. You must complete the Opt-Out Notice by providing your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the VIVAYA account(s) to which the opt-out applies and state that you wish to Opt Out of this Agreement to Arbitrate. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Agreement and this Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us. 
    • 6. Future Amendments to the Agreement to Arbitrate. Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against VIVAYA prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Vivaya. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on the Website or within our Services at least 30 days before the effective date of the amendments. If you do not agree to these amended terms, you may close your account within the 30 day period and you will not be bound by the amended terms.

 

c. Judicial Forum for Legal Disputes

Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and VIVAYA must be resolved exclusively by a state or federal court located in New York County, New York. You and Vivaya agree to submit to the personal jurisdiction of the courts located within New York County, New York for the purpose of litigating all such claims or disputes.

23. Release and Indemnification

IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE MEMBERS OR OTHER USERS OF OUR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY DISPUTE BETWEEN MEMBERS REGARDING ANY TRANSACTION OR USER CONTRIBUTED CONTENT) OR ANY THIRD PARTY WEBSITE THAT MAY BE LINKED TO OR FROM OR OTHERWISE INTERACT WITH OUR SERVICES, INCLUDING WITHOUT LIMITATION ANY SOCIAL MEDIA SITE, YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE VIVAYA AND OUR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABLITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER VIVAYA FROM, RELATE TO, OR ARE CONNECTED WITH SUCH DISPUTE AND/OR YOUR USE OF THE WEBSITE AND OUR SERVICES.

UNLESS OTHERWISE PROHIBITED BY LAW, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." 

YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD VIVAYA AND OUR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES (COLLECTIVELY, THE "INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF YOUR USE OF THE WEBSITE, OUR SERVICESOR OTHERWISE RELATING TO THE BUSINESS WE CONDUCT (INCLUDING, WITHOUT LIMITATION, ANY POTENTIAL OR ACTUAL COMMUNICATION, TRANSACTION OR DISPUTE BETWEEN YOU AND ANY OTHER MEMBER OR THIRD PARTY), ANY CONTENT POSTED BY YOU OR ON YOUR BEHALF OR POSTED BY OTHER USERS OF YOUR ACCOUNT TO THE WEBSITE, ANY USE OF ANY SERVICES OR SERVICE PROVIDED BY A THIRD PARTY PROVIDER, ANY USE OF A TOOL OR SERVICES OFFERED BY US THAT INTERACTS WITH A THIRD PARTY WEBSITE, INCLUDING WITHTOUT LIMITATION ANY SOCIAL MEDIA SITE OR ANY BREACH BY YOU OF THESE TERMS OR THE REPRESENTATIONS, WARRANTIES AND COVENANTS MADE BY YOU HEREIN, INCLUDING WITHOUT LIMITATION, ATTORNEYS' FEES AND COSTS. YOU SHALL COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENSE OF ANY CLAIM. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU AND YOU SHALL NOT IN ANY EVENT SETTLE ANY MATTER WITHOUT OUR WRITTEN CONSENT. THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.

24. Commercial Release

By using the Service, you hereby authorize us and our agents, successors and assigns to photograph and/or videotape and/or record you and/or your voice(s) without restriction and to utilize such photographs/videos and/or voice transcriptions or recording for any commercial purpose, including, but not limited to, the promotion and marketing of our Services, without further compensation whatsoever of any kind as a result of such use.

25. Foreign Currency

We will default the sale currency to US dollars. The currency of any transaction will match the sale currency displayed to you through our Services. You cannot change your displayed currency. Each foreign currency conversion is processed at a foreign currency conversion rates used by our credit card merchant providers. Currency conversion rates will vary from time to time. We may, in our sole discretion, round up or round down the sale price to the nearest whole functional base unit in which the sale currency is denominated (e.g. to the nearest dollar, euro or other supported currency). Some currencies are denominated in large numbers. In those cases, we may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency.

26. Miscellaneous 

If one clause is deemed unenforceable, these General Terms and Conditions as a whole shall not be deemed unenforceable. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remaining provisions in the Agreement shall continue in effect.

These General Terms and Conditions (and any other terms and conditions referenced herein) constitute the entire agreement and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between the customer and the Agency regarding this service. 

Please contact us at info@vivayalive.com with any questions regarding this Agreement.

I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.