Terms And Conditions

Viviana Cloud Terms and Conditions

Pro Features Licence Agreement

Viviana Cloud – Terms of Use

About these terms

1.1 These terms apply to your download, access and/or use of Viviana Cloud Pro services (we refer to all our Pro Features as the “Services” in these terms). These terms are a legal agreement and contain important information about your rights and obligations in relation to our Services.

1.2 If you do not agree to these terms or any future updated version of them then you must not access and/or use, and must cease all access and/or use of, any of our Services. If we require that any future update to these terms requires any action from you in order to accept the updated terms, then you may not be able to continue to use the Services until you have taken such action.

1.3 These terms represent a legal agreement between you and VIVIANA CLOUD LTD, Registered office address The Nova Centre, 1 Purser Road, NN1 4PG, Northampton, United Kingdom, Company number 12747844, VAT GB 371269978. 

1.4 FOR RESIDENTS IN THE USA: IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED BELOW IN PARAGRAPH 17.

1.5 In these terms references to “Viviana Cloud”, “we”, “us” and “our” are references to Viviana Cloud Limited.

1.6 These terms are made available via the app store or platform that you download our Services from (such as the Apple App Store, Google Play Store, Amazon App Store or Windows Phone Store). You agree that by accessing and/or using our Services, you are agreeing to these terms and our Privacy Policy.

About accessing and using our Services

2.1 The Services include the following features in addition to the free to use features available to any Viviana mobile app user:

2.2 You are responsible for the internet connection and/or mobile charges that you may incur for accessing and/or using our Services. You should ask your mobile operator or internet service provider if you are unsure what these charges will be, before you access and/or use our Services.

2.3 There may be times when our Services or any part of them are not available for technical or maintenance related reasons, whether on a scheduled or unscheduled basis.

Subscriptions

3.1 Payment for a Subscription will be charged to your account at the point of purchase and for renewals will be taken within the 24 hours prior to the expiry of the then-current Subscription period. Your Subscription will automatically renew on a monthly-basis unless you turn off auto-renew via your platform settings at least 24 hours before the end of the then-current Subscription period. Your Subscription is linked to your App store account and cannot be transferred between accounts. You agree that sales by us to you of Subscriptions are final and that cancellation is not permitted during an active Subscription period.

User conduct and content

4.1 You must comply with the laws that apply to you in the location that you access our Services from. If any laws applicable to you restrict or prohibit you from using our Services, you must comply with those legal restrictions or, if applicable, stop accessing and/or using our Services.

4.2 You promise that all the information you provide to us on accessing and/or using our Services is and shall remain true, accurate and complete at all times.

4.3 Information, data, software, sound, photographs, graphics, video, messages, tags, or other materials may be sent, uploaded, communicated, transmitted or otherwise made available via our Services by you or another user (“Content”). You understand and agree that all Content that you may be sent when using our Services, whether publicly posted or privately sent, is the sole responsibility of the person that sent the Content. This means that you, not us, are entirely responsible for all Content that you may upload, communicate, transmit or otherwise make available via our Services.

4.4 You agree that you will not:

4.5 We do not control Content posted on our Services by other people and therefore we do not guarantee the accuracy, integrity or quality of that Content. Under no circumstances will we be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any losses or harm of any kind resulting from the use of any Content shared, emailed, transmitted or otherwise made available via our Services.

Your breach of these terms

4.1 Without limiting any other remedies or any other paragraph of these terms, if we reasonably believe that you are in material breach of these terms (including by repeated minor breaches), we reserve the right to take any of the following actions, whether individually or in combination, and either with or without notice to you:

4.2 You agree to compensate us, according to law, for all losses, harm, claims and expenses that may arise from any breach of these terms by you.

Availability of the Services

5(A) For residents in the United States: We do not guarantee that any of our Services will be available at all times or at any given time or that we will continue to offer all or any of our Services for any particular length of time. We may change and update our Services without notice to you. We make no warranty or representation regarding the availability of our Services and reserve the right to modify or discontinue the Services in our sole discretion without notice, for technical reasons (such as technical difficulties experienced by us or on the internet) or to allow us to improve user experience. NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT ANY OR ALL OF OUR SERVICES MAY BE TERMINATED IN WHOLE OR IN PART AT OUR SOLE DISCRETION WITHOUT NOTICE TO YOU. YOU ASSUME ANY AND ALL RISK OF LOSS ASSOCIATED WITH THE TERMINATION OF OUR SERVICES.

5(B) For residents outside the United States: Subject to the next sentence, we do not guarantee that any of our Services will be available or error-free at all times or at any given time. We will provide our Services in accordance with any legally required standards. We may change and update our Services in whole or in part without notice to you (provided always that any such changes do not result in material degradation in the functionality of any part of the Services which has been paid-for with real money). We make no warranty or representation regarding the availability of the Services which are provided free of charge and we reserve the right to modify or discontinue them in our sole discretion without notice to you, including for example, for economic reasons due to a limited number of users continuing to make use of them over time, for technical reasons (such as technical difficulties experienced by us or on the internet) or to allow us to improve user experience. We are not liable or responsible for any failure to perform, or delay in performance of, any of our obligations that is caused by events outside our reasonable control. If such circumstances result in material degradation in the functionality of the Services then any obligation you may have to make any payment to download, use or access them will be suspended for the duration of such period. We are entitled to modify or discontinue the Services or any part of them which are paid-for with real money in our sole discretion upon reasonable notice to you.

For residents in the United States – Limitation of Liability

6 WE SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, USE, OR MALFUNCTION OF THE SERVICES OR ANY OF OUR OTHER SERVICES, INCLUDING DAMAGES TO PROPERTY, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. IN NO EVENT SHALL OUR LIABILITY EXCEED THE ACTUAL PRICE PAID BY YOU (IF ANY) FOR THE LICENSE TO USE THE SERVICES. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS AND/OR THE EXCLUSION OR LIMITATION OF DAMAGES, SO THE ABOVE LIMITATIONS AND/OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.

For residents outside the United States – Limitation of Liability

7.1 We are not responsible for:

7.2 For any losses or harm, we will only be responsible for losses or harm which are a reasonably foreseeable consequence of our negligence or breach of these terms and conditions up to the value of the amount that you have paid to us in the 100 day period ending on the date of your claim. Losses and harm are foreseeable only where they could be contemplated by you and us at the time of you agreeing to these terms and conditions.

7.3 We do not give any warranty, express or implied, in relation to our Services and you acknowledge that your only right with respect to any problems or dissatisfaction with any of our Services is to discontinue your use of our Services.

7.4 Any additional legal rights which you may have as a consumer remain unaffected by these terms.

Intellectual Property

8.1 You acknowledge that all copyright, trade marks, and other intellectual property rights in and relating to our Services are owned by or licensed to us.

8.2 Whilst you are in compliance with these terms, we grant you a non-exclusive, non-transferable, personal, revocable limited licence to access and/or use our Services (but not any related object and source code) for your own personal private use, in each case provided that such use is in accordance with these terms. You agree not to use our Services for anything else. These terms also apply to any update or patches which we may release or make available for any of the Services and any such update or patch shall be deemed part of the Services for the purposes of these terms.

8.3 YOU ACKNOWLEDGE AND AGREE THAT, OTHER THAN LICENSE GRANTED TO YOU BY THESE TERMS, YOU SHALL HAVE NO OWNERSHIP OR PROPERTY INTEREST IN ANY OF OUR SERVICES. You must not copy, distribute, make available to the public or create any derivative work from our Services or any part of our Services unless we have first agreed to this in writing.

8.4 In particular, and without limiting the application of paragraph 8.3, you must not make use or available any technological measures designed to control access to, or elements of, our Services.

8.5 By submitting Content (as defined in paragraph 4.3) via our Services you:

For residents in the United States – U.S. GOVERNMENT RESTRICTED RIGHTS:

9.1 Our Services have been developed entirely at private expense and are provided as “Commercial Computer Software” or “restricted computer software.” Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in subparagraph (b)(1)(ii) of the Rights in Technical Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in subparagraph (b)(1) and (2) of the Commercial Computer Software Restricted Rights clauses at FAR 52.227-19, as applicable. The Contractor/Manufacturer is VIVIANA CLOUD LTD, Registered office address, The Nova Centre, 1 Purser Road, NN1 4PG, Northampton, United Kingdom.

Links

10.1 We may link to third party websites or services from our Services. You understand that we make no promises regarding any content, goods or services provided by such third parties and we do not endorse the same. We are also not responsible to you in relation to any losses or harm caused by such third parties. Any charges you incur in relation to those third parties are your responsibility. You understand that when you provide data to such third parties you are providing it in accordance with their privacy policy (if any) and our own privacy policy does not apply in relation to that data.

Transferring these terms

11.1 We may wish to transfer all or a part of our rights or responsibilities under these terms to someone else without obtaining your consent. You agree that we may do so provided that the transfer does not significantly disadvantage you. You may not transfer any of the rights we give you under these terms unless we first agree to this in writing.

Entire agreement

12.1 These terms set out the entire agreement between you and us concerning our Services (as defined in paragraph 1) and they replace all earlier agreements and understandings between you and us.

Changes to these terms

13.1 You can find these terms at any time by visiting vivianacloud.com/termsAndConditions.

13.2 Without affecting paragraph 19.8 below, we reserve the right to update these terms from time to time by posting the updated version at that address. We may do so for a number of reasons including without limitation because we change the nature of our products or services, for technical or legal reasons, or because the needs of our business have changed. You agree that if you do not accept any amendment to our terms then you shall immediately stop accessing and/or using our Services.

Severability

14.1 If any part of these terms is held to be invalid or unenforceable under any applicable local laws or by an applicable court, that part shall be interpreted in a manner consistent with applicable law to reflect as nearly as possible our original intentions and the remainder of these terms shall remain valid and enforceable. If it is not possible to interpret an invalid or unenforceable part of these terms in a manner consistent with applicable law, then that part shall be deemed deleted from these terms without affecting the remaining provisions of these terms.

Waivers of our rights

15.1 Our failure to exercise or enforce any of our rights under these terms does not waive our right to enforce such right. Any waiver of such rights shall only be effective if it is in writing and signed by us.

Complaints and dispute resolution

16.1 Most concerns can be solved quickly by contacting us at admin@vivianacloud.com.

16.2 In the unlikely event that we cannot solve your concern and you wish to bring legal action against us these terms shall be governed by and construed in accordance with the laws of England.

For residents in the United States– BINDING ARBITRATION AND CLASS ACTION WAIVER:

17.1 The BINDING ARBITRATION AND CLASS ACTION WAIVER provisions in this paragraph 21 apply to all Disputes between you and Viviana Cloud relating to the Services. Paragraph 19 also applies to any Dispute between you and any Viviana Cloud Affiliates, each of which is an intended third-party beneficiary of paragraph 19. For the purposes of paragraph 19, “Affiliate” shall mean any entity controlling, controlled by or under common control with Viviana Cloud, where ‘control’ means the direct or indirect ownership of more than fifty percent (50%) of such entity’s capital or equivalent voting rights and “Dispute” shall include any dispute, claim, controversy or action between you and Viviana Cloud (or any Viviana Cloud Affiliates) arising out of or relating to this agreement, the Services, or any other transaction involving you and Viviana Cloud, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis.

17.2 Initial Dispute Resolution: If you have any concerns or queries regarding our Services, our customer support team can be reached through our email admin@vivianacloud.com. Most concerns are quickly resolved in this manner to our customers’ satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.

17.3 Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the paragraph 19.2, then You and Viviana Cloud agree that all Disputes shall be resolved by binding arbitration according to this agreement. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. Under this agreement, binding arbitration shall be administered by JAMS, a nationally recognized arbitration authority, under its procedures then in effect for consumer related disputes, but excluding any rules that permit joinder or class actions in arbitration (for more detail on procedure, see paragraph 19.5 below). You and Viviana Cloud understand and agree that (a) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this paragraph 21, (b) this agreement memorialises a transaction in interstate commerce, and (c) this paragraph 21 shall survive termination of this agreement.

17.4 Arbitration Procedure: If you or Viviana Cloud commences arbitration, the arbitration shall be governed by the rules of JAMS that are in effect when the arbitration is filed, excluding any rules that permit arbitration on a class or representative basis (the “JAMS Rules”), available at http://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this Agreement and must follow applicable law. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this agreement is void or voidable. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is excluded from arbitration under paragraph 19.6. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. In some instances, the costs of arbitration can exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The arbitrator’s award is binding and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in Los Angeles, California, at your option. Instructions for initiating an arbitration are available at the JAMS website and toll-free number referenced above.

17.5 Class Action Waiver: The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE PRIVACY POLICY ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

17.6 Exception – Litigation of Intellectual Property and Small Claims Court claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the Services under these terms. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

17.7 30 Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the “Binding Arbitration,” “Location,” and “Class Action Waiver” paragraphs above by sending written notice of your decision to opt-out to the following address: VIVIANA CLOUD LTD, Registered office address, The Nova Centre, 1 Purser Road, NN1 4PG, Northampton, United Kingdom. The notice must be sent within 30 days of the earlier of your first download of the applicable Services or commencing use of our Services; otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, we also will not be bound by them.

17.8 Changes to this paragraph: We will provide 60-days’ notice of any changes to this paragraph. Changes will become effective on the 60th day and will apply prospectively only to any claims arising after the 60th day.

JURISDICTION AND APPLICABLE LAW

Our Services are made available subject to these terms. This paragraph explains which laws apply to these terms.

18.1 Except for paragraph 21, the laws of England shall govern the interpretation of these terms and apply to claims for breach of it, without reference to conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and claims in negligence and tort, will be subject to the laws of the country in which you are resident. If there is a dispute between us regarding these Terms of Use, then that dispute will be subject to the jurisdiction of the courts of England unless the law in your country of residence allows you to choose the courts of that country for the dispute in question.

18.2 For residents in the United States: You and we irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in Los Angeles County, California to resolve any claims that are subject to exceptions to the arbitration agreement described in paragraph 21 above, or otherwise determined not to be arbitrable.

18.3 If you are resident outside the United States and you are entitled to commence and/or participate in legal proceedings within the United States, then you agree that you will be bound by the BINDING ARBITRATION AND CLASS ACTION WAIVER provisions above.

These terms were last updated on 30.10.2021.

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