IN THESE TERMS AND CONDITIONS, "WE," "US," "ITS" AND "OUR" REFER TO VivaSoft, ("Vivasoft LLC"), AND "YOU" AND "YOUR" REFER TO YOU. Before using ("Vivasoft Website"), please read this agreement relating to your use of this website carefully.
1. ACCEPTANCE OF TERMS
By using the VivaSoft website, you agree to be bound by these terms and conditions of use ("Terms"). If you do not agree to these Terms, please do not use the VivaSoft Website. VivaSoft provides the information and services on the VivaSoft Website to you, the user, conditioned upon your acceptance, without modification, of the Terms contained herein. Your use of the VivaSoft Website constitutes your agreement with such Terms.
We reserve the right, at our discretion, to change, modify, add or remove portions of these Terms periodically. Such modifications shall be effective immediately upon posting of the modified Terms to the VivaSoft Website. Your continued use of the VivaSoft Website following the posting of changes to these Terms will mean that you accept those changes.
In addition, each user's use of a particular VivaSoft Website service ("Service") may be subject to specific guidelines or rules ("Service-specific Rules") posted from time to time and incorporated by this reference into the Terms. Use of the VivaSoft Website and/or its Services constitutes full acceptance of and agreement to the Terms; if a user does not accept our Terms, he or she is not granted rights to use the VivaSoft Website or any of its Services, as defined herein, and should refrain from accessing the VivaSoft Website and its Services.
To update the Terms, we will post the changed version and its effective date on this Terms and Conditions of Use page. If we change any Service-specific Rules, we will post the changed version on the location where those Service-specific Rules normally appear, reference the change on the primary page for that Service and include a link to the previous version of the terms or rules. VivaSoft reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the VivaSoft Website or any Service thereon (or any part thereof). VivaSoft shall not be liable to any user or other third party for any such modification, suspension or discontinuance except as expressly provided herein.
2. NO UNLAWFUL OR PROHIBITED USE
By using the VivaSoft Website, you warrant to VivaSoft that you will not use the VivaSoft Website, or any of the content obtained from the VivaSoft Website, for any purpose that is unlawful or prohibited by these Terms. If you violate any of these Terms, your permission to use the VivaSoft Website automatically terminates.
3. DESCRIPTION OF SERVICE AND LICENSE GRANTS
The VivaSoft Website is owned and operated by VivaSoft for the purpose of fostering information related to Mobile Asset Management (the "Purpose").
Your rights to access, download, and use any software made available for download from the VivaSoft Website will be subject to the terms and conditions of the software license agreement identified on the site and/or in the software as applicable to each particular software package, and you agree to comply with those terms and conditions.
Your rights to access and use of all information, data, text, graphics, or other materials appearing on the VivaSoft.us site other than software made available for download (the "Content") is subject to the terms and conditions of one of two separate licenses, depending on the nature of the Content, as follows:
(b) Your rights to access, use, copy and distribute any user and community-generated information (Community Content) about sample data, event types, tags, comments and other information related to the VivaSoft Base, is subject to the terms and conditions of the Creative Commons License.
If you post any information, sample data, event types, tags, comments, or other VivaSoft Base content (your "Contributions") to the VivaSoft Website or otherwise provide any Contributions to VivaSoft you hereby grant to VivaSoft a perpetual, irrevocable, world-wide, royalty free license to use, make, have made, offer for sale, sell, copy, distribute, perform, display, and transmit such Contributions, and to grant to others rights to do any of the foregoing.
4. REGISTRATION OBLIGATIONS
If required by VivaSoft, each user must: (a) provide true, accurate, current and complete information on the Service's registration form (collectively, the "Registration Data") and (b) maintain and promptly update the Registration Data as necessary. If, after investigation, we have reasonable grounds to suspect that any user's information is untrue, inaccurate, not current or incomplete, we may suspend or terminate that user's account and prohibit any and all current or future use of the Services (or any portion thereof) by that user other than as expressly provided herein.
Each user will receive a password and account designation upon completing VivaSoft.us registration process and is wholly responsible for maintaining the confidentiality thereof and wholly liable for all activities occurring there under. VivaSoft cannot and will not be liable for any loss or damage arising from a user's failure to comply with this Section, including any loss or damage arising from any user's failure to (a) immediately notify VivaSoft of any unauthorized use of his or her password or account or any other breach of security and (b) ensure that he or she exits from his or her account at the end of each session.
The VivaSoft Website handle user Registration Data in accordance with the VivaSoft Website Privacy Statement.
VivaSoft will not pre-screen or review Content, but VivaSoft reserves the right to refuse or delete any Content of which it becomes aware that it reasonably deems not to fulfill the Purpose. In addition, VivaSoft shall have the right (but not the obligation) in its sole discretion to refuse or delete any Content that it reasonably considers to violate the Terms or be otherwise illegal.
VivaSoft does not control the Content posted via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will VivaSoft be liable in any way for any Content, including, but not limited to, liability for any errors or omissions in any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the VivaSoft Website or any Services thereon.
Each user, by using the VivaSoft Website or any Services, may be exposed to Content that is offensive, indecent or objectionable. Each user must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
We may terminate a VivaSoft Website user's account in our absolute discretion and for any reason. We are especially likely to terminate for reasons that include, but are not limited to, the following: 1.) violation of these Terms; 2.) abuse of site resources or attempt to gain unauthorized entry to the site or site resources; 3.) use the VivaSoft Website Services in a manner inconsistent with the Purpose; 4.) a user's request for such termination; and 5.) requirement of applicable law, regulation, court or governing agency order.
Our termination of any user's access to the VivaSoft Website or any Services hereunder may be effected without notice and, on such termination, we may immediately deactivate or delete user's account and/or bar any further access to such files. VivaSoft shall not be liable to any VivaSoft Website user or other third party for any termination of that user's VivaSoft Website access or account hereunder.
VivaSoft any Service or a third party may provide links to other websites. VivaSoft exercises no control whatsoever over such other non-VivaSoft Website and web-based resources and is not responsible or liable for the availability thereof or the content, advertising, products or other materials thereon. VivaSoft shall not be responsible or liable, directly or indirectly, for any damage or loss incurred or suffered by any user in connection therewith. Your access and use of websites linked to the VivaSoft Website, including information, material, products and services therein, is solely at your own risk.
Each user shall indemnify, defend and hold harmless VivaSoft LLC, subsidiaries and affiliates and their respective officers, employees and agents, and each of VivaSoft’s website partners from any and all claims, demands, damages, costs and liabilities, including reasonable attorneys' fees, made by any third party due to or arising out of that user's acts or omissions, including claims arising out of that user's use of the VivaSoft Website; his or her submission, posting or transmission of Content or his or her violation of the Terms.
9. DISCLAIMER OF WARRANTIES
EACH USER'S USE OF THE VivaSoft WEBSITE AND THE VivaSoft WEBSITE SERVICES IS AT HIS OR HER SOLE RISK. VivaSoft AND THE VivaSoft WEBSITE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND VivaSoft LLC ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. EACH VivaSoft WEBSITE USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO HIS OR HER COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. VivaSoft EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SPECIFICALLY, VivaSoft MAKES NO WARRANTY THAT (I) THE VivaSoft WEBSITE OR ANY VivaSoft SERVICE WILL MEET YOUR REQUIREMENTS, (II) ANY USER ACCESS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (III) THE QUALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY ANY USER WILL MEET HIS OR HER EXPECTATIONS, AND (IV) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. EXCLUDING ONLY DAMAGES ARISING OUT OF VivaSoft‘S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, VivaSoft SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF VivaSoft HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY USER'S USE OR INABILITY TO USE THE VivaSoft WEBSITE OR ANY SERVICE; THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE VivaSoft WEBSITE OR ANY SERVICE; OR ANY OTHER MATTER RELATING TO THE VivaSoft WEBSITE OR ANY SERVICE. NOTHING HEREIN SHALL BE DEEMED TO CREATE AN AGENCY, PARTNERSHIP, JOINT VENTURE, EMPLOYEE-EMPLOYER OR FRANCHISOR-FRANCHISEE RELATIONSHIP OF ANY KIND BETWEEN VivaSoft AND ANY USER OR OTHER PERSON OR ENTITY NOR DO THESE TERMS OF SERVICE EXTEND RIGHTS TO ANY THIRD PARTY. AS NOTED ABOVE, VivaSoft DOES NOT AND CANNOT CONTROL THE ACTIONS OF VivaSoft WEBSITE USERS, VISITORS OR LINKED THIRD PARTIES. WE RESERVE THE RIGHT TO REPORT ANY MALFEASANCE THAT COMES TO OUR ATTENTION TO THE APPROPRIATE AUTHORITIES. WE DO NOT GUARANTEE CONTINUOUS UNINTERRUPTED OR SECURE ACCESS TO THE VivaSoft WEBSITE OR ANY SERVICES. OPERATION OF THE VivaSoft WEBSITE MAY BE SUBJECT TO INTERFERENCE FROM NUMEROUS FACTORS OUTSIDE OUR CONTROL. FURTHER, SCHEDULED AND PREVENTIVE MAINTENANCE AS WELL AS REQUIRED AND EMERGENCY MAINTENANCE WORK MAY TEMPORARILY INTERRUPT SERVICES OR ACCESS TO THE WEBSITES. THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY APPLY, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY CAUSED BY THE FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF ANY ASSET, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORTIOUS BEHAVIOUR, NEGLIGENCE OR ANY OTHER COURSE OF ACTION BY VivaSoft.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL VivaSoft LLC, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE VivaSoft WEBSITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).
OUR LIABILITY, AND THE LIABILITY OF SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $1000. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
In the event that you have a dispute with one or more VivaSoft Website users, you release VivaSoft LLC (and our officers, directors, agents, subsidiaries, parent corporation, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a Florida resident, you waive Florida Civil Code 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."
Without limiting any other remedies, VivaSoft LLC may suspend or terminate your VivaSoft Website account if we suspect that you have engaged in fraudulent activity in connection with the VivaSoft Website or any VivaSoft Service.
13. LEGAL COMPLIANCE
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the VivaSoft Website and all of its Services.
14. NO AGENCY
You and VivaSoft LLC are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
VivaSoft respects the intellectual property rights of others, and requires that the people who use the VivaSoft Website do the same. It is our policy to respond promptly to claims of intellectual property misuse.
If you believe that your work has been copied and is accessible on this site in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in writing:
1. the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner's behalf;
2. identification of the copyrighted work that you claim has been infringed;
3. identification of the material that is claimed to be infringing and information reasonably sufficient to permit VivaSoft to locate the material;
4. your name, address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. a statement, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.
If VivaSoft receives such a claim, VivaSoft reserves the right to refuse or delete Content as described under Section 5 hereto, or to terminate a user's account in accordance with Section 9.
Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act OF 1998 ("DMCA") is:
After receiving a claim of infringement, VivaSoft will process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA, VivaSoft will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity, and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. VivaSoft will take reasonable steps promptly to notify the subscriber that it has removed or disabled access to such material.
Upon receipt of a proper counter notification under the DMCA, VivaSoft will promptly provide the person who provided the initial notification of claimed infringement with a copy of the counter notification and inform that person that it will replace the removed material or cease disabling access to it in ten business days. Additionally, VivaSoft will replace the removed material and cease disabling access to it not less than 10, nor more than 14 business days following receipt of the counter notice, unless VivaSoft's designated agent first receives notice from the person who submitted the initial notification that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the VivaSoft Website system or network.
You may provide us with a Counter Notification by providing our copyright agent the following information in writing:
1. your physical or electronic signature;
2. identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
4. your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which VivaSoft may be found and that you will accept service of process from the person who provided the initial notification of infringement.
16. RESOLUTION OF DISPUTES
In the event a dispute arises between you and VivaSoft, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and VivaSoft agree that any claim or controversy at law or equity that arises out of this Agreement or our services ("Claims") shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties.
1. Amicable resolution. Before resorting to the other alternatives below, we strongly encourage you to first contact us directly to seek an amicable resolution through dialog.
2. Alternative Dispute Resolution. Alternatively, VivaSoft will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.
3. Binding Arbitration. For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, you or VivaSoft may elect to resolve the dispute through binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. If in-person appearance is required, it shall be held in Pinellas County, Florida or another location mutually agreed upon by the parties. In all such cases, the arbitration shall be administered by the American Arbitration Association or JAMS in accordance with their applicable rules, or any other established ADR provider mutually agreed upon by the parties. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
4. Court. Alternatively, any Claim may be adjudicated by a court of competent jurisdiction located in Pinellas County, Florida or where the defendant is located (in our case Pinellas County, Florida, and in your case your home address or principal place of business). You and VivaSoft agree to submit to the personal jurisdiction of the courts located within the county of Pinellas County, Florida.
All Claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using the dispute resolution mechanism that is selected in accordance with this Section by the first party to file a Claim. Should either party file an action contrary to this Section 21, the other party may recover attorneys' fees and costs up to $1000, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim.
17. GENERAL INFORMATION
The Terms constitute the entire agreement between each user and VivaSoft LLC and govern each user's use of the VivaSoft Website and VivaSoft Services, superseding any prior agreements. Each user may be subject to additional terms and conditions that may apply when that user uses affiliate services, third party content or third party software. The Terms and the relationship between each user and VivaSoft shall be governed by the laws of the State of Florida without regard to its conflict of law provisions and each party shall submit to the personal and exclusive jurisdiction of the courts located within the county of Pinellas County, Florida. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
18. VIOLATIONS OF TERMS
Please report any violations of the Terms to the VivaSoft Website Support Manager at firstname.lastname@example.org.
19. ADDITIONAL TERMS
The following policies are incorporated into these Terms by reference and provide additional terms and conditions related to specific services offered on the VivaSoft Website:
* Privacy Statement
Each of these policies may be changed from time to time and are effective immediately after we post the changes on VivaSoft.us, except for the Privacy Statement for which we will provide you with fifteen (15) days prior notice. In addition, when using particular services on the VivaSoft Website, you agree that you are subject to any posted policies or rules applicable to services you use through the VivaSoft Website, which may be posted from time to time. All such posted policies or rules are hereby incorporated by reference into these Terms.