Thank you for your interest in the VIVI application for your mobile device (the "App") provided to you by VIVI Inc. ("VIVI", "us" or "we"), and our web site at vivimenow.com (the "Site"), as well as all related web sites, networks, and downloadable software provided by us and on which a link to these Terms of Service is displayed (collectively, together with the App and Site, our "Platform"). These Terms of Service (these "Terms"), including the Privacy Policy incorporated into these Terms by reference and any other applicable policies and guidelines, as may be updated from time to time, govern your use of the Platform. These Terms constitute a legal agreement between you and VIVI. In order to use the Platform you must agree to these Terms.
All references to “you” or “your,” or “consumer” or “merchant”as applicable, mean the person or corporation who accesses, uses ( directly or through API), and/or participates in the Platform in any manner, and each of your heirs, assigns, and successors. If you use the Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that entity to these Terms, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity.
BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE PLATFORM, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE, YOU MAY NOT USE THE PLATFORM.
VIVI PLATFORM
The Platform connects consumers (individuals & corporations)and independent contractor couriers (“Couriers”), to facilitate on-demand pickup& delivery services. Through the Platform, consumers may request that merchandise, personal items or food be made available for pick-up or delivered to them from a Merchant, individual or corporation by Couriers who contract with VIVI to access the Platform and receive delivery opportunities.
VIVI is not a retailer nor a restaurant. VIVI is not liable or responsible for Customers’ compliance with applicable federal, state, or local laws, rules, regulations or standards pertaining to their businesses. In addition, VIVI does not guarantee the quality of what Customers sell and does not independently verify, and is not liable for, representations made by Customers regarding their products on the Platform.
VIVI is not the retailer of any products offered by Customers, nor is it in the delivery business or a common carrier. VIVI provides a technology platform facilitating the transmission of delivery requests by consumers to consumers for pickup or delivery by Couriers. Couriers are independent contractors and not employees, partners, agents, joint ventures, or franchisees of VIVI. Couriers have entered into independent contractor agreements with VIVI, which require them to comply with all applicable federal, state, and local laws, rules and regulations. VIVI shall not be liable or responsible for any delivery services provided by Couriers, or any errors or misrepresentations made by any of them. You hereby acknowledge that VIVI does not supervise, direct, control, or monitor a Courier’s provision of services and expressly disclaims any responsibility or liability for the services performed.
VIVI is committed to ensuring that the delivery requests ofitems by consumersare performed in a manner consistent with consumer’s expectation.
As provided in greater detail in these Terms, you agree and acknowledge these material terms:
● The Platform is licensed, not sold to you, and you may use the Platform only as set forth in these Terms;
● Your use of the Platform may be subject to separate third party terms of service and fees, including without limitation your mobile network operator’s ("Carrier") terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
● You consent to the collection, sharing, and use of your personally identifiable information( such as biometrics, Social Security number and Driver’s License) in accordance with VIVI’s Privacy Policy;
● The Platform is provided "as is" without warranties of any kind, and with No liability to VIVI;
● Disputes arising under these Terms will be resolved by binding individual arbitration.
1. Eligibility
You must be at least eighteen (18) years old to use the Platform. By agreeing to these Terms, you represent and warrant to us: (1) That you are at least eighteen (18) years old; (2) That you have not previously been suspended, banned, or removed from the Platform; and (3) That your registration and your use of the Platform is in compliance with any and all applicable laws and regulations.
2. Accounts and Registration
To access some features of the Platform, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your name, credit card information, e-mail address, phone number, profile image, or other contact information). You agree that the information you provide to us is accurate, current, and complete, and that you will keep it up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and any password for Facebook, Google, or other third-party login. You accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, you must immediately notify us via our Help Center. VIVI will not be liable and you may be liable for losses, damages, liability, expenses, and lawyers’ fees incurred by VIVI or a third party arising from someone else using your account due to your conduct regardless of whether you have notified us of such unauthorized use. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account.
3. Scope of License
The Platform is licensed, not sold, to you for use only under the terms of this license. VIVI reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with these Terms, VIVI hereby grants you a personal, limited, non-sublicensable, non-transferable, and revocable license to access the Platform on compatible devices that you own or control, solely for your own personal, non-commercial use, and only in a manner that complies with all legal requirements that apply to you or your use of the Platform. VIVI may revoke this license at any time, in its sole discretion.
You may not modify, alter, reproduce, distribute or make the App available or your account over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the App. If you breach these license restrictions, or otherwise exceed the scope of the license granted in these Terms, you may be subject to prosecution and legal damages, as well as liability for infringement of intellectual property rights. These Terms will govern any updates provided to you by VIVI that replace and/or supplement the original App, unless the upgrade is accompanied by a separate license in which case the terms of that license will govern.
4. Payment Terms
4.1. General Payment Terms
Platform
You acknowledge and agree to pay the prevailing pricing and fees, even if they differ from the Estimated Subtotal and/or Estimated Fees. Please visit our Help Center to learn more about how product or menu items are priced.
Certain features of the Platform, including VIVI SECURE, may require you to pay a premium fee to VIVI. VIVI may change, or add, fees for use of our Platform at any time as we deem necessary or appropriate for our business. You will have an opportunity to review and accept an estimate of the fees that you will be charged, as applicable. The final fees may differ from the estimate. In all cases, you acknowledge and accept that a fee will be charged and you agree to pay said fee. We encourage you to check our Site or visit our Help Center periodically to learn more about how we charge for the Platform.
VIVI has no obligation to itemize its costs, profits or margins when publishing prices on the Platform and reserves the right to change such prices at any time, at its discretion. You are liable for all transaction taxes on the Platform provided under these Terms (other than taxes based on VIVI’s income).
VIVI will charge the payment method you specify at the time of purchase or as otherwise specified by you in your account information. We may also place a pre-authorization hold on your payment method, as described in Section 4.3.
Charges paid by you are final and non-refundable, except as expressly provided in Section 4.2, and will be quoted in the local currency of the location where the order is being delivered or picked up. Except as expressly provided in Section 4.2, VIVI has no obligation to provide refunds or credits. However, VIVI, in its sole discretion, may provide consumers with refunds, courtesy delivery or product credits, or make promotional offers with different features and different rates to any consumers, which are subject to these Terms (see Credits section below).
Referral Program
VIVI, in its sole discretion, may offer a referral program (“Referral Program”), allowing consumers to earn courtesy delivery or product credits, or other promotional rewards (“Referral Program Rewards”) by inviting their eligible friends to register as new VIVI consumers using a unique referral code (“Referral Program Codes”). Referral Program Codes must be used for the intended audience and purposes, and may not be sold or transferred in any manner or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by VIVI. Referral Program Rewards may vary by consumer, location, and/or availability. Referral Program Rewards can only be redeemed for VIVI orders on vivimenow.com or VIVI app with the latest version, and within areas and times that VIVI Platform is available. Referral Program Rewards are non-transferrable, may not be resold, and are not redeemable for cash, cash equivalent or other consideration. Referred consumers will be disqualified and will not receive Referral Program Rewards if VIVI has a record of their name, email, phone number, devise, or credit card having been used for a prior VIVI order or being linked to an existing active or inactive VIVI account. You agree we may change the terms and conditions of the Referral Program, terminate the Referral Program, or expire, deduct, limit, or modify your Referral Program Rewards at any time for any reason, including but not limited to, the event that VIVI determines or believes that your participation in the Referral Program or use or redemption of Referral Program Codes was in error, fraudulent, illegal, or otherwise in violation of these Terms.
Promotional Offers and Credits.
Promotional Offers. VIVI, in its sole discretion, may make promotional offers with different features and different rates to any consumer. These promotional offers are subject to these Terms and may be valid only for certain consumers as indicated in the offer. A consumer must have a valid VIVI account with a valid form of accepted payment on file to take advantage of a promotional offer. You agree that promotional offers: (i) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by VIVI; (iii) are subject to the specific terms that VIVI establishes for such promotional offer; (iv) cannot be redeemed for cash or cash equivalent; (v) may only be applied if all qualifying conditions are met; and (vi) are not valid for use after the date indicated in the offer.
Promotional offers can only be redeemed for delivery requests on vivimenow.com or VIVI app with the latest version, and within areas and times that VIVI Platform is available. Promotional offers are non-transferrable, may not be resold, and are not redeemable for cash, cash equivalent or other consideration. For promotional offers available only to new consumers or new Unlimited subscribers, as applicable, consumers will be disqualified and will not be entitled to receive the offer if VIVI has a record of their name, email, phone number, devise, or credit card having been used for a prior VIVI order or being linked to an existing active or inactive VIVI account. Offers cannot be applied retroactively for prior purchases and cannot be combined unless otherwise indicated. You agree we may change the terms and conditions of an offer, terminate an offer, or expire, withhold, deduct, limit, or modify an offer at any time for any reason. VIVI reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that VIVI determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or these Terms. VIVI reserves the right to modify or cancel an offer at any time. The offer-redeeming consumer is responsible for paying any applicable sales tax related to the use of an offer. VIVI has no obligation for payment of any tax in conjunction with the distribution or use of any Offer.
Credits. VIVI may, from time to time, issue gratuitous credits in its sole discretion. VIVI credits will be automatically applied to your next order, can only be redeemed for VIVI orders on vivimenow.com or on the VIVI app with the latest version, and within areas and times that VIVI Platform is available. Credits may be applied toward order subtotals (excluding gratuity) or delivery fee only as indicated in your consumer account. The expiration date(s) for such credits can be found in the VIVI app and/or the credit-issuing email. Credits may not be applied with any other offer. Credits are non-transferrable, may not be resold, and are not redeemable for cash, cash equivalent or other consideration. Upon expiration, credits will be removed from your account. Expired credits are no longer redeemable and cannot be used towards any order.
If your account is cancelled for any or no reason, you may forfeit any pending, current, or future credits or promotional offers and any other forms of unredeemed value in or associated with your account without prior notice to you.
4.2. Unlimited Subscription
VIVI Unlimited (“Unlimited”) is offered as a monthly or yearly pre-paid subscription to the Platform on a per account basis. By signing up for Unlimited and providing us with your payment account information, you are signing up to an auto-renewing subscription requiring recurring payments and agree to pay the then-current applicable fee associated with the subscription.
If you sign up for the monthly subscription, you will be charged your first monthly subscription fee and any applicable taxes on the date you purchase your subscription or, if your subscription includes a free trial, on the day after your free trial ends. Your subscription will automatically continue on a monthly basis, and you will continue to be charged on a monthly basis at the then-current price (including any applicable taxes), until you cancel your subscription or we terminate it. If you sign up for the yearly subscription, you will be charged your first upfront, non-refundable (except as described below) yearly subscription fee and any applicable taxes on the date you purchase your subscription or, if your subscription includes a free trial, on the day after your free trial ends. Your subscription will automatically continue on a yearly basis at the then-current price (including any applicable taxes), and you will continue to be charged on a yearly basis, until you cancel your subscription or we terminate it. You can find your monthly and/or yearly subscription renewal/billing date in your account settings.
If your subscription includes a free trial, you will not be charged the applicable subscription fee during your free trial. To obtain the free trial you will be required to provide a credit card in order to ensure uninterrupted access to Unlimited and continued use after the expiration of the free trial. Upon completion of your free trial, your subscription will automatically convert into a paid Unlimited subscription and your payment method will be charged the applicable fee unless you have cancelled your Unlimited subscription. If your subscription includes an initial discount, you will be charged the then-current monthly or yearly subscription fee once the discount period is over. You may cancel your Unlimited subscription as described below. You may not receive a notice from us that your free trial or discount period has ended or that the paying portion of your Unlimited subscription has begun. You are only permitted one free trial. If your Unlimited subscription is ever terminated for any reason, and you purchase an additional Unlimited subscription, you shall not be eligible for a free trial on any subsequent Unlimited subscriptions.
We may change the subscription terms or fees at any time on a going forward basis in our discretion. If the pricing for your subscription increases, we will notify you, and provide you an opportunity to change your subscription before applying those changes to your account or charging your payment details in connection with an automatic renewal. The notification will inform you of how long you have to change your subscription before the changes become effective. Your continued use of Unlimited after the changes become effective will constitute your acceptance of the changes. If you do not wish to continue subscribing with the new fees or features, you may cancel your subscription. If you accept the new subscription, its terms and conditions will apply for that renewal and all renewals going forward. For information on the monthly and yearly subscription fees and terms, please visit our Help Center.
You may cancel your subscription at any time in your account settings or by contacting us via our Help Center. You must cancel your subscription before it renews to avoid billing of the next periodic subscription fees to your account. However, if you cancel a pre-paid yearly or monthly subscription, you will not receive any refund. If you cancel your monthly or yearly subscription, you will be able to use your Unlimited subscription for the remainder of your pre-paid subscription term.
We may terminate your subscription for Unlimited at our discretion and without any notice. If we cancel your yearly subscription for Unlimited, we will give you a prorated refund based on the amount of time remaining in your pre-paid subscription; provided, however, that VIVI will not be obligated to grant you a refund if we terminate your account or your subscription because we determine, in our sole discretion, that your actions or your use of the Platform violates these Terms or has harmed another user.
4.3. Payment Authorization
You authorize VIVI to charge all sums for delivery requests that you make to the payment method designated in your account. If there is a problem charging your selected payment method, we may charge any other valid payment method associated with your account. When you place a request through VIVI, a temporary pre-authorization hold is placed on your designated payment method to verify that the card is valid and has funds available for your intended purchase. The amount of this pre-authorization hold may be greater or less than the order total quoted at checkout. However, your payment will be captured up to 24 hours after your order is completed or cancelled. In the event that the pre-authorization is greater than the final amount, the difference will be released after your order is completed or cancelled; depending on your bank, it may take up to 5 business days to receive access to these released funds. In the event that the pre-authorization is lower than the final amount, we will either authorize an increase in the original amount or, if unsuccessful, we will capture the increase in amount owed by you in a second authorization.
VIVI also places an initial temporary pre-authorization hold on each new payment method you add to your account.
VIVI reserves the right to request additional information from you if we have reason to believe, in our sole discretion, that a payment method may be fraudulent.
4.4. Delinquent Accounts
If payment due on your account is delinquent, we reserve the right to suspend or terminate your access to the Platform; your account information may be sent to a collection agency/debt collector and you may be subject to a collection action, and payment of collection related fees and costs. If any fee for your Unlimited subscription is not paid in a timely manner, we reserve the right to revoke access to your Unlimited subscription and use of VIVI. If you do not bring your VIVI balance current after we provide you with notification that your account is in arrears, we reserve the right to suspend or terminate your access to your Unlimited subscription or convert your Unlimited subscription to a non-subscription account. You will be responsible for paying all past due amounts. If you have questions regarding an outstanding balance on your account, please contact us via our Help Center.
If your payment card expires or is replaced by your issuing bank, the card network may provide us with updated card details associated with the same account. We may use these new details in order to help prevent any interruption to the Platform. If you would like to use a different payment method, please visit your account settings to update your billing information. In addition, we may charge another stored payment card if your default payment is declined or no longer available to us.
4.5. Consumer Not Available
VIVI reserves the right to charge you the full delivery amount, including any VIVI fees, if you are not at the designated delivery location when the Courier arrives to complete the delivery or if you fail to pick up an item from the sender.
4.6. Cancelled Orders
If you cancel your order, you may be charged depending on what stage the order was in when you cancelled. You will be notified of any applicable charges before you complete your cancellation. You can learn more about order cancellations in our Help Center.
4.7. Returned Items
If an item has to be returned for any reason, you may be subject to a non-refundable $15 return/restocking fee. For alcohol items, the Courier reserves the right, at his or her discretion, to refuse delivery and return the item(s) if the name on your ID does not match the name on your order, if you are not at least twenty-one (21) years old ("Legal Age"), if you cannot provide a bona-fide government-issued photo identification that shows you are of Legal Age, or if you are visibly intoxicated.
4.8. Gift Cards
VIVI may provide you with the option to purchase or redeem gift cards in connection with your use of the Platform. You agree that you will comply with all gift card terms and conditions, which are incorporated by reference and are located here. You can learn more about gift cards in our Help Center.
5. Third-Party Interactions
5.1. Third-Party Providers
During use of the Platform, you may purchase goods and services from third-party Customersthat provide check out and delivery through VIVI API. Any such activity, and any interactions, disputes, terms, conditions, warranties or representations associated with that activity, is solely between you and the applicable third-party Merchant. VIVI and its licensors shall have no liability, obligation or responsibility for any purchase or transaction between you and any third-party provider. In no event shall VIVI or its licensors be responsible for any content, products, services or other materials on or available from third-party sites or third-party providers. Certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and VIVI disclaims any and all responsibility or liability arising from such agreements between you and a third party.
5.2. Couriers
The Platform enables you to engage third-party Couriers to provide delivery services. Any interactions or disputes between you and a Courier are solely between you and that Courier. VIVI and its licensors shall have no liability, obligation or responsibility for any interaction between you and any Courier.
5.3. Third-Party Advertising
The Platform may contain third-party advertising and marketing. By agreeing to these Terms you agree to receive such advertising and marketing.
5.4. Links to Third Party Sites
The Platform may contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
6. Your Use of the Platform
In order to use the Platform, you agree to the following:
● You agree not to use the platform to transport any illegal product/item and if a driver is stopped by the authorities, then it is you the sender who is responsible for that item before the law. VIVI, its drivers/couriers, officers, investors and employees will have no liability nor responsibility in your illicit action. And your account will be immediately and permanently blocked. We strongly recommend that anyone using our platform refrain from using illegal products on the platform;
● The Platform, including any content that forms part of the Platform, contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including copyright;
● You will not violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right, or otherwise engage in the unauthorized use of any proprietary content, information or materials;
● Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the Platform, and you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Platform without prior written authorization;
● You agree not to bypass any security or other features of the Platform designed to control the manner in which the Platform is used, harvest or mine content from the Platform, or otherwise access or use the Platform in a manner inconsistent with individual human use;
● You agree not to perform any fraudulent activity, including impersonating any person or entity, or accessing any other Platform account without permission;
● You agree not to decipher, reverse engineer, decompile or disassemble the Platform, or the software used to provide the Platform, in whole or in part, or authorize, direct, or cause a third party to do so;
● You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Platform, or any portion thereof, unless and solely to the extent VIVI makes available the means for embedding any part of the Platform;
● You agree not to access, tamper with, or use non-public areas of the Platform, VIVI’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of VIVI’s providers;
● You agree not to use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract data;
● You agree not to use the Platform in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that VIVI is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Platform;
● You agree that your use of the Platform may incur third-party fees, such as fees charged by your Carrier for data usage, and may be subject to third-party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms; and
● You agree not to introduce viruses, time-bombs, worms, cancelbots, trojan horses and/or other harmful code into the Platform.
Transactions involving Alcohol.
Alcoholic beverages (including but not limited to beer, wine, cider, and spirits, as applicable; all referred to as "Alcoholic Beverages") may only be purchased by consumers who are of Legal Age in jurisdictions that permit such purchase. If you are a consumer, you expressly represent and warrant that: (i) you are of Legal Age; and (ii) you will provide bona fide government-issued photo identification to your Courier upon delivery to you. Valid forms of identification include but are not limited to: (i) a valid motor vehicle operator’s license, (ii) a passport issued by the U.S. or by a foreign government, or (iii) a valid identification card issued to a member of the Armed Forces that includes a date of birth and a picture, showing your Legal Age. Deliveries of Alcoholic Beverages may not be made to anyone who is intoxicated, regardless of his or her age. You further understand and acknowledge that neither VIVI nor the Courier can accept your order of Alcoholic Beverages, and the order will only be delivered if the third-party Merchant accepts your order.
You agree not to do any of the acts described in this Section 6, or to assist or permit any person in engaging in any of the acts described in this Section 6.
7. Consent to Use of Data
Please see VIVI’s Privacy Policy, for more information regarding information VIVI collects, and how it uses and shares that information.
8. Intellectual Property Ownership
The Platform, and the media and materials contained in the Platform, including all intellectual property rights in the Platform, are the sole and exclusive property of VIVI. Except for the limited license expressly granted by and to you under these Terms, no other rights, licenses, or immunities are granted or shall be deemed to be granted under these Terms, either expressly, or by implication, estoppel or otherwise. All rights not expressly granted by VIVI in these Terms are expressly reserved.
9. Content You Provide through the Platform
9.1. Content You Provide
You may be able to submit, post, upload, denote, or otherwise make available (collectively, “Post”) photographs, video clips, reviews, ratings, favorites, liked items, bookmarked Customers, questions, comments, public messages, ideas, designs, concepts, inventions, feedback, and other content (collectively, “User Content”) (that may or may not be viewable by other users) through the Platform or through other communications with you, including, without limitation, through text (“SMS”) or multimedia (“MMS”) messages (“Interactive Areas”).
9.2. Use of Your Content
You acknowledge that when you Post User Content on or through the Platform, the User Content shall be deemed, and shall remain VIVI’s property. VIVI does not provide any compensation for User Content that you Post on or through the Platform. You agree that User Content that you Post on or through the Platform shall be deemed to be non-confidential and non-proprietary, and VIVI shall have no obligation of any kind with respect to such information. When you Post User Content on or through the Platform, you grant VIVI a world-wide, perpetual, irrevocable, royalty-free, non-exclusive, and sub-licensable license to use, copy, distribute, reproduce, modify, edit, adapt, publicly perform, publicly display, translate, create derivative works from, sell, lease, transmit, communicate to the public, disassemble, and publish such User Content in connection with VIVI’s or its partners’ or affiliates’ business, in whole or in part, in any format or medium now known or developed in the future, for any purpose whatsoever, unless expressly agreed otherwise in writing by VIVI, including without limitation for promoting and redistributing part or all of the Platform (and derivative works thereof) in any media formats and through any media channels. You further grant VIVI a license to use your username and/or other user profile information, including, without limitation, your ratings history and how long you have been a VIVI consumer, to attribute User Content to you, if we choose to do so. Further, VIVI shall be free to use any ideas, concepts, know-how or techniques contained in User Content for any purpose whatsoever in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to you, including but not limited to developing, manufacturing and marketing products incorporating such information. In the interest of clarity, the license granted to VIVI shall survive termination of the Platform or your account. Notwithstanding the foregoing, our use of your personal data shall be governed by the VIVIPrivacy Policy.
9.3. User Content Representations
You acknowledge and agree that all User Content that you Post is your sole responsibility. You represent that you have all required rights to Post or transmit such User Content without violation of any third-party rights. You understand that VIVI does not control, and is not VIVI for, User Content, and that by using the Platform, you may be exposed to User Content from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless VIVI for all claims resulting from User Content you Post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
9.4. User Content Review
You acknowledge and agree that VIVI and its designees may or may not (but do not assume any obligation to), at VIVI’s discretion, pre-screen User Content before its appearance on the Platform. You further acknowledge and agree that VIVI reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit or remove any User Content that is contributed to the Platform. Additionally, VIVI has the right to remove any User Content that violates these Terms or is otherwise objectionable in VIVI’s sole discretion. You acknowledge and agree that VIVI does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.
9.5. Ratings and Reviews
The Platform and other Interactive Areas may allow you to rate (“Ratings”) and Post reviews (“Reviews”) of other User or Drivers. Such Ratings and Reviews are considered User Content and are governed by these Terms, including, without limitation, your agreement regarding your use of the Platform (Section 6). Ratings and Reviews are not endorsed by VIVI, and do not represent the views of VIVI or of any affiliate or partner of VIVI. VIVI does not assume liability for Ratings and Reviews or for any claims, liabilities, or losses resulting from any Ratings and Reviews. We strive to maintain a high level of integrity with our Ratings and Reviews and other User Content. Therefore, all Ratings and Reviews must comply with the following criteria: (1) you must have had first-hand experience with the Courier or other user within the 7-day period prior to your Posting a Rating or Review; (2) you may not have a proprietary or other affiliation with couriers; (3) you may not draw any legal conclusions regarding the couriers, users ortheir services; (4) you may not promote or criticize a courier or user other than the one being rated or reviewed; (4) you may not include others’ personal information; and (5) your Rating or Review must otherwise comply with these Terms. Any Rating and/or Review that we determine, in our sole discretion, could diminish the integrity of the Ratings and Reviews, and/or the Platform may be removed or excluded by us without notice.
10. Communications
10.1. Text Messaging
By using the Platform, you understand and agree that VIVI and those acting on its behalf may send you text (SMS) messages (potentially including messages generated using an automatic telephone dialing system) at the phone number you provided us. These messages may include operational messages about your use of the Platform, as well as marketing or other promotional messages. You will not be able to use the Platform without agreeing to receive operational text messages. You may opt-out of receiving marketing or other promotional text messages at any time by sending an email to sms@vivimenow.com indicating that you no longer wish to receive marketing or other promotional texts along with the phone number of the mobile device receiving the messages, or by following any unsubscribe instructions in the text messages. You may continue to receive text messages for a short period while VIVI processes your request, and you may also receive text messages confirming the receipt of your opt-out request. If you do not want to receive operational text messages from VIVI, do not place orders through the Platform. Your agreement to receive marketing texts is not a condition of any purchase or use of the Platform. If you change or deactivate the phone number you provided to VIVI, you must update your account information to help prevent us from inadvertently communicating with anyone who acquires your old number. Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your Carrier for details.
10.2. Push Notifications
When you install our App on your mobile device you agree to receive push notifications, which are messages an app sends you on your mobile device even when the app is not on. You can turn off notifications by visiting your mobile device's "settings" page.
10.3. Email
VIVI may send you emails concerning our products and services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email.
10.4. E-SIGN Disclosure
By agreeing to receive text messages, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by contacting us via the Help Center with “Revoke Electronic Consent” in the subject line. To view and retain a copy of this disclosure or any information regarding your enrollment in this program, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, please contact us via the Help Center with contact information and the address for delivery.
10.5. Notice of Intellectual Property Infringement
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, it is the policy of VIVI, in appropriate circumstances, to terminate the registration account of a user who is deemed to infringe third-party intellectual property rights and/or to remove user content that is deemed to be infringing. If you believe that your work has been copied in a way that constitutes copyright infringement and is displayed on the Platform, please provide substantially the following information to our Copyright Agent (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):
● An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
● A description of your copyrighted work or other intellectual property that you claim has been infringed;
● A description of where the material you claim is infringing is located on the Services (providing us with website URL is the quickest way to help us locate content quickly);
● Your address, telephone number, and email address;
● 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; and
● A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
11. Indemnity
You are responsible for your use of the Platform, and you agree to defend (at VIVI’s option), indemnify, and hold harmless VIVI and its officers, directors, employees, contractors, consultants, affiliates, investors, service providers, business partners, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with:
● Your violation of any of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation;
● Your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or
● Any dispute or issue between you and any third party, including any Courier, Merchant, or other third-party.
VIVI reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations) and you agree to cooperate with our defense of that claim. If the defense or settlement is assumed by you, VIVI may at any time thereafter elect to take over control of the defense and settlement of the claim. You must not settle any claim that you are defending on behalf of VIVI without VIVI’s prior written consent.
This provision does not require you to indemnify VIVI for any unconscionable commercial practice by such party, or for such party’s gross negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Software or Services.
You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Software and/or Services.
12. Disclaimer of Warranties
YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED BY VIVI TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. VIVI MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM. VIVI DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; THAT THE PLATFORM OR ANY PRODUCTS OR MATERIALS OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR THAT THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
VIVI PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VIVI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
VIVI RELIES UPON CUSTOMERS, INCLUDING, BUT NOT LIMITED TO, RESTAURANTS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS AND RETAILERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. VIVI DOES NOT REPRESENT OR WARRANT THAT SUCH INFORMATION ACCESSIBLE THROUGH THE PLATFORM IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, INCLUDING WITHOUT LIMITATION MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE PLATFORM IS SOLELY AT YOUR OWN RISK, INCLUDING WITHOUT LIMITATION NUTRITIONAL AND ALLERGEN INFORMATION.
VIVI DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR PLATFORM ADVERTISED OR OFFERED BY A MERCHANT OR OTHER THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR THIRD-PARTY SERVICE, AND VIVI WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
13. Limitation of Liability
IN NO EVENT SHALL VIVI’S AGGREGATE LIABILITY EXCEED THE VIVI FEES ACTUALLY PAID BY YOU TO VIVI IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1000, WHICHEVER IS LESS. IN NO EVENT SHALL VIVI AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE OR OTHER ECONOMIC ADVANTAGE) EVEN IF VIVI AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION OF LIABILITY SECTION APPLIES FULLY IN ALL STATES, INCLUDING RESIDENTS OF NEW JERSEY.
THE PLATFORM CONNECTS YOU TO COURIERS AND CUSTOMERS FOR THE PURPOSES OF FACILITATING COURIER AND PRODUCT FULFILLMENT SERVICES. VIVI WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY COURIERS OR CUSTOMERS, AND YOU EXPRESSLY WAIVE AND RELEASE VIVI FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE COURIERS OR CUSTOMERS. VIVI WILL NOT ASSESS THE QUALITY, SAFETY, OR LEGALITY OF THE ITEMS PROVIDED BY CUSTOMERS ON THE PLATFORM, AND YOU EXPRESSLY WAIVE AND RELEASE VIVI FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO CUSTOMERS, AND THE ITEMS THEY PROVIDE. VIVI WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES, BETWEEN YOU AND ANY COURIERS, OR CUSTOMERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING SERVICES OFFERED VIA THE PLATFORM (WITH ALL THEIR IMPLICATIONS) RESTS SOLELY WITH YOU. IN ADDITION, WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTIES, AND YOU EXPRESSLY WAIVE AND RELEASE VIVI FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE PLATFORM, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE PLATFORM.
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
THE QUALITY OF THE COURIER PROVIDING SERVICES THROUGH THE USE OF THE PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE THIRD-PARTY COURIER WHO ULTIMATELY PROVIDES DELIVERY SERVICES TO YOU. YOU UNDERSTAND THAT BY USING THE PLATFORM, YOUR ITEMS MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS OR HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE PLATFORM AT YOUR OWN RISK.
14. Notice
VIVI may give notice by any means of communication reasonably anticipated to notify you of the information provided. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form. By way of example only, such communication may be a general notice on the Platform or via email to the email address listed on your VIVI account. It is your obligation to update your account information so that we may contact you as may be necessary. Such notice shall be deemed to have been given 48 hours after dispatch. If physical notice (e.g., US Mail) is used, then such notice shall be deemed to have been given 7 days after dispatch.
15. Assignment
You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be void.
16. Term and Termination of Agreement
These Terms are effective until terminated by you or VIVI as described below. Your rights under these Terms will terminate automatically without notice from VIVI if you fail to comply with any of these Terms (including by violating any license restriction contained in these Terms). In addition, VIVI may in its sole discretion terminate your user account on the Platform or suspend or terminate your access to the Platform at any time without notice. We also reserve the right to modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform) without notice to you. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform. You may terminate these Terms at any time by closing your account, uninstalling the App, and ceasing use of the Platform. Sections 4.4, 5, 7-17, and 19-21 survive termination of your account or these Terms.
17. Dispute Resolution and Arbitration
17.1. Disputes
VIVI is not a party to, has no involvement or interest in, makes no representations or warranties as to, and has no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other user, any Courier, or Merchant, or other third party. Disputes between you and VIVI are subject to this Section 17. You and VIVI agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of the arbitration provisions in these Terms.
17.2. Generally
In the interest of resolving Disputes between you and VIVI in the most expedient and cost effective manner, you and VIVI agree that every Dispute arising in connection with these Terms will be resolved by binding individual arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and can be subject to very limited review by courts. While the parties will be permitted to engage in discovery or exchange of non-privileged information relevant to the dispute, arbitration may allow for more limited discovery allowed for in court. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, the Platform, or your relationship with us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND VIVI ARE EACH WAIVING THE RIGHT TO GO TO COURT OR TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION.
17.3. Exceptions
Despite the provisions of the paragraph directly above, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (1) Bring an individual action in small claims court; (2) Pursue an enforcement action through the applicable federal, state, or local agency if that action is available; or (3) File suit in a court of law to address an intellectual property infringement claim.
17.4. Notice Process
A party who intends to seek arbitration must first send a written notice of the Dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice").
The Notice must: (1) Describe the nature and basis of the claim or dispute; and (2) Set forth the specific relief sought ("Demand").
During the arbitration, the amount of any settlement offer made by you or VIVI must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
18. Modification of these Terms
We reserve the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted through the Platform, except as set forth below. These Terms identify the date of last update. Except as explicitly described in the Dispute Resolution and Arbitration section, your use of the Platform following any such change constitutes your agreement to be bound by the modified Terms. In the case of material changes to these Terms, we will make reasonable efforts to notify you of the change, such as through sending an email to the address you may have used to register for an account, through a pop-up window on the Platform, or other similar mechanism.
You acknowledge and agree that if VIVI modifies any provision of these Terms (including any information referenced at hyperlinks), other than the Dispute Resolution and Arbitration section herein, you will not have a renewed opportunity to opt out of arbitration. You further acknowledge and agrees that unless the Dispute Resolution and Arbitration section herein is materially different from any prior arbitration provision with VIVI to which you may be bound, your acceptance of these Terms does not create a renewed opportunity to opt out of arbitration (if applicable).
Except as explicitly described in the Dispute Resolution and Arbitration section, material changes to these Terms will be effective upon the earlier of: (1) Your first use of the Platform with actual notice of such change, or (2) thirty (30) days from posting of such change.
Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.
19. Confidentiality
You acknowledge and agree that when using the Platform, you may have direct or indirect access or exposure to VIVI’s confidential information ("Confidential Information"). Confidential Information includes VIVI’s data, provider IDs, user information, delivery recipient information, delivery provider information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other nonpublic information (whether disclosed in writing or verbally) that VIVI designates as being proprietary or confidential or that you should reasonably know to treat as confidential.
You acknowledge and agree that: (1) all Confidential Information shall remain the exclusive property of the VIVI; (2) you shall not use Confidential Information for any purpose except in furtherance of your use of the Platform; (3) you shall not disclose Confidential Information to any third party; and (d) you shall not store or keep Confidential Information and shall return or destroy (with confirmation of destruction) all Confidential Information upon the termination of your use of the Platform or at the request of VIVI.
Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (1) is or becomes part of the public domain through no action or omission by you; (2) was possessed by you prior to your use of the Platform without an obligation of confidentiality; or (3) is disclosed to you by a third party having no obligation of confidentiality with respect thereto.
20. Notice Regarding Apple
To the extent that you are using our mobile applications on an iOS device, you further acknowledge and agree to the terms of this Section 22. You acknowledge that these Terms are between you and VIVI only, not with Apple Inc. ("Apple"), and Apple is not responsible for the Platform and the content thereof.
Apple has no obligation whatsoever to furnish any maintenance and support platforms with respect to the Platform. In the event of any failure of the Platform to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Platform.
Apple is not responsible for addressing any claims by you or any third party relating to the Platform or your possession and/or use of the Platform, including, but not limited to: (1) Product liability claims; (2) Any claim that the Platform fails to conform to any applicable legal or regulatory requirement; and (3) Claims arising under consumer protection or similar legislation.
Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Platform and/or your possession and use of the mobile application infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Platform. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.