Use of the Website
You agree to use the Website only for purposes that are permitted by (a) the Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. You agree not to access, or attempt to access, the Website by any means other than through the interface that is provided by Viviota. You specifically agree not to access, or attempt to access, the Website through any automated means including use of scripts or web crawlers. You agree that you will not engage in any activity that interferes with or disrupts the Website. You agree that you are solely responsible for and that Viviota has no responsibility to you or to any third party for any breach of your obligations under the Agreement and for the consequences (including any loss or damage which you may suffer) of any such breach.
Responsibility of Website Visitors
You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website may contain content containing technical inaccuracies, typographical mistakes, and other errors. Viviota disclaims any responsibility for any loss or harm resulting from the use of the Website by you.
The copyright in all material provided on the Website is held by Viviota or by the original creator of the material. None of the material may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Viviota or the copyright owner. This Agreement does not transfer from Viviota to you any Viviota or third-party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with Viviota. Viviota, the Viviota logo, and all other trademarks, service marks, graphics and logos used in connection with viviota.com, or the Website are trademarks or registered trademarks of Viviota or Viviota’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants you no right or license to reproduce or otherwise use any Viviota or third-party trademarks.
Termination and Survival
Viviota may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately. All provisions of this Agreement, which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Disclaimer of Warranties
The Website are provided “as is”. Viviota and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Viviota nor its suppliers and licensors, makes any warranty that the Website will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through the Website at your own discretion and risk.
Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL Viviota BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO USE, THE WEBSITE OR MATERIALS ON THESE WEBSITE, EVEN IF VIVIOTA OR A VIVIOTA AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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.
Arbitration and Class Action Waiver
You agree that, except as otherwise provided herein, all disputes between You and Viviota (whether or not such dispute involves a third party) will be resolved by binding, individual arbitration under the American Arbitration Association’s rules for arbitration of consumer-related disputes and the parties hereby expressly waive trial by jury. As an alternative, You may bring a claim in your local “small claims” court if permitted by that court’s rules. Notwithstanding the foregoing, either party may seek emergency injunctive relief by filing for such in accordance with the Governing Law and Venue section, below. Further, You may bring claims only on your own behalf. Neither party may participate in a class action or class-wide arbitration for any claims covered by this Agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Viviota is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either party may elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. You may opt out of this agreement to arbitrate. If You do opt out, neither party can require the other to participate in an arbitration proceeding. To opt out, You must notify Viviota in writing within thirty (30) days of the date that You first became subject to this arbitration provision. You must use this address to opt out: Viviota, Inc. ATTN: LEGAL – Arbitration Opt-Out, 8920 Business Park Dr., Set 250, Austin, TX 78759. You must include your name, residence address, and a clear statement that You want to opt out of this arbitration agreement. If the prohibition against class actions and other claims brought on behalf of third parties or arbitration clause contained above is found to be unenforceable or if You opt- out of arbitration then all of the preceding language in this section will be null and void and the Governing Law and Venue section, below, shall control. This arbitration agreement will survive the termination of Your relationship with us.
Governing Law and Venue.
This Agreement is governed by the laws of the State of Texas, without regard to its choice of law statutes. Any disputes must be brought in the U.S. District Court for the Western District of Texas, located in Austin, Texas. If that U.S. District Court cannot hear the dispute, the dispute shall be brought before the State District Courts of Travis County located in Austin, Texas. The parties agree that venue and jurisdiction is proper in this court and agree not to contest notice from this court. The United Nations Convention on the International Sale of Goods is disclaimed. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS AGREEMENT. The parties further agree that the pricing and terms of this Agreement were made in reliance upon agreement to this paragraph.
This Agreement constitutes the entire agreement between Viviota and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Viviota, or by the posting by Viviota of a revised version. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Viviota may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.