These Terms and Conditions of Use and all other legal documents incorporated by reference (collectively, the “Terms”) set forth the legal contract between you as an end user or as a manager or administrator (“User” or “you” or “your”) and Viventium Software, Inc., along with its subsidiaries and affiliates (“Viventium” or “we” or “our”) with respect to access to and use of its products and services (the “Viventium Services”) through its websites, including, but not limited to www.viventium.com, and hcm.viventium.com, and in connection with your use of our mobile applications, whether accessed via computer, mobile device, tablet or other technology (collectively, the “System”) and any associated materials or content accessible through the System (collectively, the “Content”). If you are party to a pricing agreement, statement of work, ordering document, or other service agreement between you and Viventium (an “Ordering Document”), then these Terms are incorporated into the Ordering Document and constitute a part of the agreement between you and Viventium that includes the Ordering Document (the “Agreement”).
Some of Viventium’s other sites, applications, products, services and tools may have additional terms that we provide to you when you use those sites, applications, products, services or tools.
These Terms apply to all Users of the System and the Viventium Services. Viventium grants you a personal, non-exclusive, non-transferable, limited license to use the System and to view or access the Viventium Services set forth on the Ordering Document (the “Services”) solely for your personal or internal use and subject to the condition that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in or access to the System, the Viventium Services, or any other Content available via the System (including any websites or mobile applications). You further agree not to modify the System, or any part thereof, in any form or manner, nor to use any modified versions of the System or the Viventium Services, for any reason whatsoever, without the express written consent of Viventium. No commercial use or redistribution of any Content, materials, or information contained on or offered through the System or the Viventium Services is permitted, unless expressly specified in a prior agreement between you and Viventium.
As a condition of your use of the System (including the Services), you agree that you will not use the System for any purpose that is unlawful or prohibited by these Terms. Access to and use of password protected and/or secure area of the System is restricted to authorized Registered Users only, subject to the additional terms and conditions in the Registered User Section below. Unauthorized access to such areas is prohibited and may lead to criminal prosecution.
As between you and us, we and/or our vendors and suppliers, as applicable, retain all right, title and interest in and to the System, the Viventium Services, the Content and all documentation, materials, and tools provided by Viventium, as well as all intellectual property and other proprietary rights in or to any of the foregoing. The System as a whole is copyrighted as a collective work, and individual works or content appearing on or accessible through the System owned by or licensed to Viventium or its content providers are likewise subject to copyright protection domestically and internationally. You must abide by all copyright notices, information, or restrictions contained in or displayed on the System or the Viventium Services. Certain of the names, logos, distinctive features, source identifiers and other materials displayed on the System or in the Viventium Services, including its “look and feel”, constitute trademarks, trade names, service marks, trade dress or logos (“Marks”) of us or other entities. All Marks not owned by Viventium that appear on the System are the property of their respective owners. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities. Unless you first obtain the copyright owner’s prior written consent, you may not copy, distribute, publicly perform, publicly display, digitally perform (in the case of sound recordings), or create derivative works from any copyrighted work made available or accessible via the System or the Viventium Services. Except for the rights expressly licensed to you under the Terms or the Agreement, as applicable, no rights in or to the System, the Viventium Services, the Content or any documentation, materials, and tools provided by Viventium are granted, transferred, licensed, or assigned to you, whether by implication, estoppel, or otherwise, and all such rights are expressly reserved to Viventium and its licensors.
In connection with your use of the System you agree not to:
- circumvent or manipulate any applicable fee structure, billing process, or fees owed either to us or to our third party providers;
- use the System or the Viventium Services for illegal purposes or for promotion of dangerous activities;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted or received; or
- upload, post, email, transmit or otherwise make available any content that you do not have a right to make available under any law or under contractual or fiduciary relationships.
- violate any local, state, national or international law, including, but not limited to intellectual property laws, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any other regulations having the force of law;
- stalk, harass or harm another individual;
- impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
- provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act;
- interfere with or disrupt the System, the Viventium Services or servers or networks connected to either, or disobey any requirements, procedures, policies or regulations of networks connected to the System or the Viventium Services;
- generate unsolicited email advertisements, chain letters, junk mail, spam or allow, enable, or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam);
- attempt to gain unauthorized access to the System, other accounts, computer systems, or networks connected to the System through hacking, password mining, phishing or any other means, obtain or attempt to obtain any materials or information through any means not intentionally made available through the System or use any materials or information obtained through any means not intentionally made available through the System;
- upload, post, email, transmit, distribute or otherwise make available any material that contains viruses, computer code or any other technologies that may harm us or the interests, information or property of Users or limit the functionality of any software, hardware or other equipment; or
- circumvent, disable or otherwise interfere with security-related features of the System or Viventium Services or features that prevent or restrict use or copying of any Content or enforce limitations on use of the System or Viventium Services.
Please be aware that it is a federal crime and a violation of 18 U.S.C. § 1030 (The Computer Fraud and Abuse Act) to intentionally access a computer without authorization and to knowingly cause damages.
In order to access and use the Services available to a Registered User, you are required to set up or have your employer set up an account directly with Viventium. When an account is set up, you are required to enter your username or email address (“User ID”) and password to access the Services (your User ID, password, and account information collectively your “Account”). You are solely responsible for maintaining the confidentiality of your Account, and warrant that you will not share your Account with any third party. You are solely responsible for any and all use of your Account and you agree (i) to be responsible for any act or omission of any users accessing the System or Services under your Account that, if undertaken by you, would be deemed a violation of these Terms, and (ii) that such act or omission shall be deemed a violation of these Terms by you.
You are required to notify us immediately if you become aware that your Account is being used without authorization. You agree not to register for an Account on behalf of an individual other than yourself, or register for an Account on behalf of any group or entity unless you are authorized to bind such person, group or entity to these Terms. By registering another person, group or entity you hereby represent that you are authorized to do so. Individuals and/or entities whose access to the System or use of the Viventium Services have previously been terminated by Viventium may not register for a new account, nor may designate other individuals to use an account on its or your behalf. Notwithstanding the generality of the foregoing, you hereby expressly permit Viventium or its authorized contractors and partners to access your Account in order to investigate and diagnose actual or potential defects or other technical problems with the System and to audit the System or to investigate security risks or fraud. When notified by Viventium that Viventium has identified or suspects security risks or fraudulent activity associated with your account or an account you have registered for a group or entity, it is your responsibility and that of your employer to promptly investigate the unusual activity, to resolve security issues on your system, to inform Viventium of the findings of your investigation and to bear any losses associated with misuse of or intrusion into your system.
You agree to register using your real name and you agree that any information you submit about yourself is truthful and accurate. You warrant and represent that all information you provide to us as part of your registration is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it true, accurate, current and complete. If we believe or suspect that such information is untrue, inaccurate, not current or incomplete, we may deny or terminate your access to the System or Viventium Services (or any portion thereof) and any license(s) to the System or Viventium Services.
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, you affirm that you are at least 13 years of age. If you are under 13 years of age, you may not use the System without the assistance of a parent or guardian.
Viventium neither actively monitors Submissions, nor exercises editorial control over any Submissions. However, Viventium does reserve the right to monitor such Submissions or other use at any time as it deems appropriate and to remove any materials that, in Viventium’s sole discretion, may be illegal, may subject Viventium to liability, may violate these Terms, or are, in the sole discretion of Viventium, inconsistent with Viventium’s purpose for the System.
You warrant that you will retain copies of all documents provided to Viventium for the longer of two years from the date such document is provided to Viventium or as long as required under applicable law.
Viventium will provide the Services to you based upon information you provide to Viventium. You are responsible for the accuracy and completeness of the information you provide or which any employee, contractor, participant, or any other person provides to Viventium in connection with the Terms or the Agreement, as applicable, or on your behalf. You agree to timely execute and return a Power of Attorney (“POA”) and other registration forms as necessary for Viventium to provide the Services in each applicable jurisdiction and agency, and as otherwise may be reasonably requested by Viventium. You agree to immediately notify Viventium in writing of any changes to information provided to Viventium by you, by your employees, contractors, or participants, or by others on behalf of any of the foregoing. You must provide all information that you would like Viventium to use in connection with any debit, deposit, or filing under the Services no later than two Business Days in advance. Information received by Viventium before 2:00 p.m. Eastern Time is considered timely for that Business Day. You agree to promptly review all reports, records, and similar documents (each a “Deliverable”) prepared by Viventium for accuracy and completeness immediately upon receipt, electronically or otherwise, and to promptly notify Viventium of any discrepancies or issues that need to be addressed.
If you submit any information to us about the System or Viventium Services, as a comment or evaluation (“Feedback”), you assign, without compensation to you, all right, title, and interest (including to any associated copyrights, patents, or other intellectual property) in all the Feedback you submit to Viventium. To the extent such rights may not be assigned in this manner, you hereby grant to Viventium an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, unrestricted license to make, use, sell, offer for sale, import, reproduce, prepare derivative works, copy perform, display, sublicense, or otherwise exploit, in any medium now known or later developed, the Feedback, without compensating you, without indicating that it is yours, and without having any obligation to you or any other person or entity. If you want to send us your feedback (and we hope you do) we simply request that you send it to us by emailing email@example.com or providing it through the designated area within the System. You agree not to take any action that may undermine any feedback or ratings systems that we establish as part of the System or the Viventium Services. This includes not displaying, importing, exporting or using any feedback information off of the System
The System may contain links that will let you access other websites that are not under the control of Viventium. The links are only provided as a convenience and Viventium does not endorse any of these Systems. Viventium assumes no responsibility or liability for any material that may accessed on other websites reached through this System, nor does Viventium make any representation regarding the quality of any product or service contained at any such website. Viventium prohibits unauthorized links to the System, imbedding all or part of the System in another site and the framing of any information contained on the System or any portion of the System. Viventium reserves the right to disable any unauthorized links or frames. Viventium has no responsibility or liability for any material on other websites that may contain links to this System.
Your rights under these Terms will automatically and immediately terminate if you fail to comply with your promises and obligations stated in these Terms. You understand and agree that upon termination of these Terms or your use of the Viventium Services, we retain the license rights granted to us under these Terms. Notwithstanding the foregoing, it is our policy to retain all information provided to us and stored in your Account for 30 days after the termination of your Account. After 30 days, we may delete your information from our servers except as required by law or as otherwise agreed to between you and us. You understand that if you want to use our Services after termination of your Account, you may need to re-register with us.
Without limiting other remedies, we also reserve the right to limit or partially terminate or suspend the Services and accounts, prohibit access to the System, the Services and the Content, delay or remove any Content, take technical and legal steps to keep any Users off the System if we think that they are creating possible legal liabilities, infringing the intellectual property rights of third parties, acting in violation of these Terms, or acting inconsistently with the letter or spirit of our policies.
A. Disclaimer of Warranties; Warranties of User
THE SERVICES, THE SYSTEM, AND ALL INFORMATION, CONTENT, MATERIALS AND SERVICES RELATED TO THE FOREGOING ARE PROVIDED ”AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OR GUARANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON INTERFERENCE, SYSTEM INTEGRATION AND ACCURACY OF DATA. VIVENTIUM AND/OR OUR THIRD PARTY SUPPLIERS OR LICENSORS DO NOT WARRANT THAT THE SYSTEM, CONTENT OR ANY MATERIALS OR SERVICES AVAILABLE ON OR THROUGH THE SYSTEM OR THROUGH VIVENTIUM ARE OR WILL BE ACCURATE, CURRENT, ERROR-FREE, VIRUS FREE, RELIABLE OR APPROPRIATE FOR ANY PARTICULAR USE TO WHICH YOU OR ANY THIRD PARTY MAY CHOOSE TO PUT THEM, THAT THE SYSTEM IS OR WILL BE AVAILABLE ON AN UNINTERRUPTED AND ERROR-FREE BASIS OR THAT DEFECTS WILL BE CORRECTED. THE SUBMISSION OF ANY PERSONAL INFORMATION AND THE DOWNLOAD OR UPLOAD OF ANY CONTENT THROUGH THE VIVENTIUM SERVICES AND/OR SYSTEM IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY INFORMATION OR FROM RELIANCE UPON ANY INFORMATION, AND YOU ARE ADVISED TO MAINTAIN OFFLINE BACKUP COPIES OF ALL INFORMATION. VIVENTIUM IS NOT THE PROVIDER OF, AND MAKES NO WARRANTIES WITH RESPECT TO, ANY THIRD-PARTY OFFERINGS. VIVENTIUM DOES NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE SYSTEM; AND YOU AGREE TO ASSUME THE SECURITY RISK FOR ANY INFORMATION YOU PROVIDE USING THE SERVICES.
NO REPRESENTATION OR WARRANTY IS MADE THAT THE SYSTEM OR SERVICES PROVIDE COMPREHENSIVE OR ACCURATE INFORMATION. WE RESERVE THE RIGHT TO FILTER, MODIFY OR REMOVE CONTENT, MEDIA, INFORMATION OR ANY OTHER MATERIAL FROM THE SYSTEM OR THE SERVICES AND FROM THE OUTPUT OF THE SERVICES. Viventium periodically adds, changes, improves, or updates the Content and documents on this System without notice. Viventium assumes no liability or responsibility for any errors or omissions in the Content of this System. Your use of this System is at your own risk.
You represent and warrant that you have full power and authority to enter into this Agreement and perform your obligations under this Agreement, and the execution and performance of your obligations under this Agreement will not constitute a breach of any law or regulation or contract or agreement to which you are a party or by which you are bound.
USE OF THE VIVENTIUM SERVICES, THE SYSTEM, AND ANY CONTENT IS AT YOUR OWN RISK. IN NO EVENT WILL VIVENTIUM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF VIVENTIUM WAS ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF VIVENTIUM TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SYSTEM, OR THE USE OR THE SYSTEM, EXCEED THE LIABILITY CAP. THE AMOUNT OF THE LIABILITY CAP FOR USERS WHO HAVE ENTERED INTO A WRITTEN ORDERING DOCUMENT WITH VIVENTIUM EQUALS THE FEES PAID BY USER UNDER SUCH ORDERING DOCUMENT DURING THE MONTH PRECEDING THE DATE OF THE FIRST SUCH CLAIM ARISING UNDER THIS AGREEMENT. FOR ALL OTHER USERS AND IN ALL OTHER CASES, THE LIABILITY CAP IS ONE HUNDRED U.S. DOLLARS (U.S.D. $100.00). YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL TERM BETWEEN YOU AND VIVENTIUM RELATING TO THE PROVISION OF THE SYSTEM, THE SERVICES, AND ANY CONTENT TO YOU, AND VIVENTIUM WOULD NOT PROVIDE THE SYSTEM OR SERVICES TO YOU WITHOUT THIS LIMITATION. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SYSTEM OR SERVICES OR DELETION OF YOUR ACCOUNT OR CONTENT.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL VIVENTIUM OR ITS LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM FORCES OF NATURE, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES.
To the extent permitted by applicable law, you agree to indemnify and hold harmless Viventium, its officers, directors, employees and agents from and against any and all damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the System, Viventium Services, and/or the Content; (ii) your violation of any term of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Submissions or information caused damage to a third party. This defense and indemnification obligation will survive these Terms and your use of the System and/or the Viventium Services.
If you believe your copyright has been violated by Content or Third-Party Offerings accessible on the System, please contact us by email at firstname.lastname@example.org.
We reserve the right to modify the System and/or Viventium Services at any time without notice. If you object to any changes to the System or Viventium Services, your sole recourse will be to cease using them. Continued use of the System or Viventium Services following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Viventium Services as so modified. We also reserve the right to discontinue the System and/or Viventium Services at any time without notice. We will not be liable to you or any third-party should we exercise our right to modify or discontinue the System or the Viventium Services.
These Terms will be subject to and construed in accordance with the laws of the State of New York, excluding its rules regarding conflicts of law. You agree that any claim or dispute you may have against Viventium must be resolved exclusively by a state or federal court located in Kings county, New York. You agree to submit to the personal jurisdiction of the courts located in New York for the purpose of litigating all such claims or disputes.
For any claim (i) raised by a resident of a country other than the United States of America; or (ii) where the total amount of the award sought is less than $10,000.00, you agree that Viventium may, in its sole discretion, elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event Viventium elects arbitration, you hereby agree to move any claims to the exclusive jurisdiction of an arbitration procedure, which shall be initiated through an established alternative dispute resolution (“ADR”) provider chosen by Viventium. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Arbitration expressly excludes claims for injunctive or other equitable relief.
Compliance with Laws. You agree to comply with all laws, rules and regulations that apply to your use of the System and the Viventium Services. You acknowledge and agree that, while the Services are designed to assist you in complying with applicable laws and governmental regulations, you—and not Viventium—will be solely responsible for (i) compliance with all laws and governmental regulations affecting your business and (ii) any use you may make of Services to assist you in complying with such laws and governmental regulations. You agree not to rely on your use of the Services in complying with any laws or governmental regulations. Unless otherwise agreed in writing by the parties, the Services will be utilized by you solely in the United States.
Independent Contractors. Neither you nor Viventium will at any time be deemed to be the employee, agent or legal representative of the other for any purpose. These Terms and any Agreement between you and Viventium do not constitute and will not be construed to create a partnership, joint venture, or agency relationship.
Assignment. The rights and obligations of you and Viventium will be binding upon and inure to the benefit of you and Viventium, respectively, and their respective successors and permitted assigns. You may not assign, transfer, delegate, or sublet any of your rights or obligations under these Terms or any Agreement, including involuntarily by merger or otherwise, without the prior written consent of Viventium, which will not be unreasonably withheld. Viventium will have the right to assign its rights and obligations under these Terms and any Agreement, in whole or in part. These Terms and the terms of each Agreement are intended solely for the benefit of you and Viventium and do not confer third-party beneficiary rights upon any other person or entity.
Force Majeure. Neither you nor Viventium will be liable to the other for any loss or damage which may be suffered as a result of a delay in performance or a failure to perform caused by an event beyond such Party’s reasonable control, including without limitation any act of God, inclement weather, failure or shortage of power supplies, flood, hurricane, drought, lightning or fire, strike, lockout, act or omission of government or other competent authority.