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.
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
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.
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:
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 ARISE but are independent contractors who operate a separate and distinct business from ARISE. 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:
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. Gift Memberships
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.
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.
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.
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.
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.
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 firstname.lastname@example.org, or by sending written notice of termination to ARISE, P.O. BOX 659, WAINSCOTT, NY 11975. 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.
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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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 email@example.com
17. 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.
18. Privacy and Communications
20. 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.
21. Arbitration and Governing Law
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND ARISE HAVE AGAINST EACH OTHER ARE RESOLVED.
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 ARISE, except as otherwise stated in this Agreement.
b. Agreement to Arbitrate
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 ARISE 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.
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.
22. 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 ARISE 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.
23. 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.
24. 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.
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 firstname.lastname@example.org with any questions regarding this Agreement.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.