END CUSTOMER AGREEMENT
This End Customer Agreement (“Agreement”) governs your use and access of the Vivamo Inc. (“Vivamo”, “we”, “our”, or “us”) services that we may provide to you (“you”, “your”, or “End Customer”, as applicable) from time to time, including without limitation, our Vivamo payment gateway platform and any accessing third party account information (“Services”).
BY ACCEPTING THIS AGREEMENT THROUGH USE OR ACCESS OF OUR SERVICES, OR OTHERWISE ELECTRONICALLY INDICATING YOUR ACCEPTANCE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND OUR PRIVACY POLICY. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” REFERS TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OR THE PRIVACY POLICY, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OR ACCESS OUR SERVICES.
WE MAY REVISE AND UPDATE THIS AGREEMENT FROM TIME TO TIME IN OUR SOLE DISCRETION. ALL CHANGES ARE EFFECTIVE IMMEDIATELY WHEN WE POST THEM AND APPLY TO ALL SUBSEQUENT ACCESS TO AND USE OF OUR SERVICES.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND VIVAMO THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 10 “CLASS ACTION AND JURY TRIAL WAIVER; ARBITRATION” BELOW FOR DETAILS REGARDING ARBITRATION.
- Accessing the Service
1.1 You may only enter into this Agreement if you are over the age of majority and able to enter into a legally binding contract in the country in which you reside. You may not enter into this Agreement or use our Services if you are the target of government sanctions, such as those applied by the U.S. Department of the Treasury Office of Foreign Assets Control, or any other national government.
1.2 You represent and agree that all information you provide to us in connection with the Services is accurate, current, and complete. You agree not to misrepresent your identity or account information. You agree to keep account information secure, up to date and accurate. You represent that you are a legal owner, or an authorized user, of the accounts at third party sites which you include or access through the Services, and that you have the authority to (i) use the Services, and (ii) give us and our service providers all information you provide.
1.3 You agree that all information you provide to register with for the Service or otherwise is governed by our Privacy Policy made available at vivamo.co, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
1.4 You agree not to use the Services or the content or information delivered through the Services in any way that would: (a) be fraudulent or involve the sale of counterfeit or stolen items, including but not limited to use of the Services to impersonate another person or entity; (b) violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (c) create liability for us or our service providers or cause us to lose the services of our service providers; (d) access the information and content programmatically by macro or other automated means; or (e) use the Services in such a manner as to gain unauthorized entry or access to computer systems.
- Vivamo’s Role
2.1 Any contract of sale made using the Services is directly between you and our applicable customer that is using or products and services for their business purposes (“Vivamo Customer”). You, and not Vivamo, are responsible for the purchases you make using the Services. The applicable Vivamo Customer, and not Vivamo, is responsible for the goods or services that you may purchase from them using the Services, including but not limited to delivery, quality of goods or services, refunds, fraud, advertising, liability relating to the Vivamo Customer products or services, or non-compliance with applicable law.
2.2 Your access to and use of the Services does not change your relationship with the Vivamo Customer, third party services or platforms or with your bank or credit or debit card company. Except as provided otherwise in this Agreement or set forth in our agreement with the Vivamo Customer, Vivamo will not intervene in any dispute between you and a Vivamo Customer for any transactions using the Services. If you find yourself in a dispute with a Vivamo Customer or a third party, we encourage you to contact the other party and try to resolve the dispute. You can submit a complaint regarding a Vivamo Customer to us, and we may forward your complaint to the Vivamo Customer with a request that they contact you directly. You release Vivamo and its affiliates from any claims, demands, and damages arising out of disputes relating to your use of the Services, including those with other users or parties.
2.3 We make no warranties with respect to the products, services or information provided by Vivamo Customer, and we are not responsible or liable for: (a) product liability claims in respect of Vivamo Customer products; (b) claims that the offer or sale of Vivamo Customer products or services fails to conform to any applicable legal or regulatory requirement; (c) claims respecting Vivamo Customers’ products, services, or practices arising under consumer protection or similar legislation; (d) any inaccurate, incomplete or out of date information offered by a Vivamo Customer; or (e) the acts or omissions of any Vivamo Customer.
3. PAD Agreement
the extent ACH transactions consist part of the Services provided, End Customer agrees to and acknowledges the terms and conditions set forth in the Vivamo Pre-Authorized Debit (PAD) Agreement set forth below in Schedule A, as required under NACHA Operating Rules. This authorization allows Vivamo, or its designated affiliates, to initiate ACH debits or credits from the End Customer’s designated bank account. By use of the applicable Services, you hereby authorize Vivamo and/or our agents to debit and credit your designated bank account as described in this Agreement.
4. Intellectual Property Rights
4.1 Our Services and their entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Vivamo, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Nothing in this Agreement assigns or transfers ownership of any intellectual property rights to the other party. All rights not expressly granted in this Agreement are reserved.
4.2 Our name and trade name, the Vivamo logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Vivamo or our affiliates or licensors. You must not use such marks without our prior written permission, in which case all goodwill generated from the use will inure to the sole benefit of Vivamo. All other names, logos, product and service names, designs, and slogans displayed on or through the Services are the trademarks of their respective owners.
4.3 Anonymous, aggregate information, comprising financial account balances, other financial account data, or other available data that is collected through your use of the Services, may be used by us and our service providers to conduct certain analytical research, performance tracking and benchmarking. Our service providers may publish summary or aggregate results relating to metrics comprised of research data, from time to time, and distribute or license such anonymous, aggregated research data for any purpose, including but not limited to, helping to improve products and services and assisting in troubleshooting and technical support. Your personally identifiable information will not be shared with or sold to third parties.
4.4 You may choose to submit feedback, ideas and suggestions about the Services, but it is never required. You may provide us with feedback on the Services by contacting support. You agree that we may use and share all feedback, ideas, and suggestions you submit for any purpose and without compensation or obligation to you.
5. Term and Termination
5.1 We may terminate this Agreement, and we may limit, suspend, change, or remove your access to any or all Services, including any feature or aspect of the Services, at any time for any reason.
5.2 You may terminate any Service at any time and for any reason by written notice to [Email]. Termination will be effective on the date that your correspondence is received.
5.3 Upon termination, you will not have any further use of or access to the Services. Subject to applicable law, you will also not have any use of or access to any information you submitted through the Services, and all rights granted under this Agreement will end. Termination does not relieve you of your obligations to pay amounts owed to Vivamo, Vivamo Customers, or others. Termination does not revoke any third-party payment authorizations. The provisions which based on sense and nature should survive termination, shall survive, including without limitation, provisions related to arbitration, waivers, disclaimers, intellectual property and limitations of liability.
6. Disclaimer
6.1 YOUR USE OF THE SERVICE, ITS CONTENT, AND ANY INFORMATION OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, ITS CONTENT, AND ANY INFORMATION OBTAINED THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. VIVAMO, ITS AFFILIATES, LICENSORS, AND SERVICE PROVIDERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
6.2 TO THE FULLEST EXTENT PROVIDED BY LAW, VIVAMO WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIALS DUE TO YOUR USE OF SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE.
6.3 THE SERVICE IS BASED IN THE UNITED STATES. VIVAMO MAKES NO CLAIMS THAT THE SERVICE OR ANY OF ITS CONTENT IS ACCESSIBLE OR APPROPRIATE OUTSIDE OF THE UNITED STATES. ACCESS TO THE SERVICE MAY NOT BE LEGAL BY CERTAIN PERSONS OR IN CERTAIN COUNTRIES. IF YOU ACCESS THE SERVICE FROM OUTSIDE THE UNITED STATES, YOU DO SO ON YOUR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAWS.
6.4 VIVAMO MAY REFERENCE, ENABLE YOU TO ACCESS, OR PROMOTE THIRD-PARTY SERVICES THROUGH THE SERVICE OR OUR WEBSITE. THESE THIRD-PARTY SERVICES ARE PROVIDED FOR YOUR CONVENIENCE ONLY, AND VIVAMO DOES NOT APPROVE, ENDORSE, RECOMMEND, OR MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING ANY THIRD-PARTY SERVICES. YOUR ACCESS AND USE OF ANY THIRD-PARTY SERVICE IS AT YOUR OWN RISK, AND VIVAMO DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR YOUR USE OF ANY THIRD-PARTY SERVICE. THIRD-PARTY SERVICES ARE NOT CONSIDERED PART OF THE SERVICES PROVIDED BY VIVAMO AND ARE NOT GOVERNED BY THIS AGREEMENT OR VIVAMO’S PRIVACY POLICY. YOUR USE OF ANY THIRD-PARTY SERVICE, INCLUDING THOSE LINKED FROM OUR WEBSITE OR MADE AVAILABLE THROUGH OUR SERVICE, IS SUBJECT TO THAT APPLICABLE THIRD-PARTY SERVICE’S OWN TERMS OF USE AND PRIVACY POLICIES.
7. Indemnification
You agree to defend, indemnify and hold us harmless, our third party service providers and their officers, directors, employees and agents from and against any and all third party claims, liabilities, damages, losses or expenses, including settlement amounts and reasonable attorneys’ fees and costs, arising out of or in any way connected with your access to or use of the Services, your violation of these terms or your infringement, or infringement by any other user of your account, of any intellectual property or other right of anyone.
8. Limitation of Liability
8.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER VIVAMO NOR ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT VIVAMO OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8.2 TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF VIVAMO AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT YOU HAVE ACTUALLY PAID DIRECTLY TO VIVAMO IN THE LAST THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS FIRST GIVING RISE TO A CLAIM, OR ONE HUNDRED DOLLARS ($100) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO VIVAMO, AS APPLICABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
8.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
8.4 In jurisdictions that do not allow the exclusion or limitation of certain liabilities, the liability of Vivamo, its subsidiaries, affiliates, licensors, service providers, employees, agents, officers, and directors will be limited to the fullest extent permitted by law. The limitation of liability set out above does not apply to liability resulting from our gross negligence, fraud, or willful misconduct.
9. Governing Law and Jurisdiction
9.1 All matters relating to the Service, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), will be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).
9.2 Except as otherwise required by Section 10 below, any legal suit, action, or proceeding arising out of, or related to, this Agreement or the Service will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware applying Delaware law. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
10 Class Action and Jury Trial Waiver; Arbitration
10.1 Class Action Waiver. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND VIVAMO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
10.2 Arbitration Agreement.
10.2.1 Vivamo and you each agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service (collectively, “Disputes”) will be resolved solely by final and binding, individual arbitration under the Rules of Arbitration of the American Arbitration Association applying Delaware law located in the Wilmington, DE. Notwithstanding the forgoing, (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
10.2.2 The American Arbitration Association will administrate the arbitration under its Commercial Arbitration Rules. The Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply for cases in which no disclosed claim or counterclaim exceeds $75,000 USD (excluding interest, attorneys’ fees and arbitration fees and costs). Where no party’s claim exceeds $25,000 USD (excluding interest, attorneys’ fees and arbitration fees and costs), and in other cases where the parties agree, Section E-6 of the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply. The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section above.
10.2.3 The parties acknowledge that this Agreement evidences a transaction involving interstate commerce and notwithstanding Section 9 referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. Sections 1-16) will govern any arbitration conducted in accordance with this Agreement.
10.3 Arbitration Proceedings.
10.3.1 Before initiating arbitration, a party must notify the other party of its intention to initiate arbitration. This notice should specify the intended filing date of the arbitration demand, which must be at least 30 days after the notice date. During this period, the parties will meet to attempt to resolve the dispute prior to commencing arbitration.
10.3.2 Subject to the requirements outlined in Section 10.3.1 of this Agreement, either party may initiate arbitration by submitting a written demand to the American Arbitration Association and the other party. The demand must state the subject of the dispute and the relief sought.
10.3.3 The appointed arbitrator(s) may award monetary damages and any other remedies permitted by the laws of the State of Delaware, subject to the disclaimers and limitations of liability stated in this Agreement. The arbitrator does not have the authority to alter any terms of this Agreement. The arbitrator will provide a reasoned, written decision to each party, who must promptly comply with the arbitrator’s decision. Any award (including interim or final remedies) may be confirmed or enforced in a state or federal court located in Wilmington, Delaware. The arbitrator’s decision will be final and binding on the parties and not subject to appeal or review.
10.3.4 In accordance with the AAA Rules, the initiating party is responsible for paying the applicable filing fee. Each party will advance one-half of the arbitrator’s fees and expenses, the costs of the arbitration reporter’s attendance at the hearing, and the costs of the arbitration facility. In any arbitration related to this Agreement, the arbitrator will award the prevailing party, if any, the costs and attorneys’ fees reasonably incurred in connection with the aspects of its claims or defenses on which it prevails. Opposing awards of costs and legal fees will be offset.
10.3.5 The parties agree to maintain the confidentiality of the existence of the arbitration, the arbitration proceedings, the hearing, and the arbitrator’s decision, except as follows: (a) to prepare for and conduct the arbitration hearing on the merits; (b) in connection with a court Application for a preliminary remedy, or to confirm or enforce an arbitrator’s decision; (c) Vivamo may disclose the arbitrator’s decision during confidential settlement negotiations; (d) each party may disclose necessary information to professional advisors who are bound by a strict duty of confidentiality; and (e) as otherwise required by law. All parties involved, including witnesses and the arbitrator, will treat as confidential and not disclose to any third party (other than witnesses or experts) any documentary or other evidence produced in any arbitration, unless required by law or if the evidence was obtained from the public domain or independently from the arbitration.
10.4 Jury Trial Waiver. IN THE EVENT THAT ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, BOTH PARTIES KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, OR COUNTERCLAIM. THIS WAIVER APPLIES TO ALL MATTERS, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND ENCOMPASSES ALL CLAIMS AND DISPUTES BETWEEN THE PARTIES.
11. General Provisions
11.1 Waiver. No waiver by Vivamo of any term or condition set out in this Agreement will be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Vivamo to assert a right or provision under this Agreement will not constitute a waiver of such right or provision.
11.2 Severability. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision will be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.
11.3 Entire Agreement. This Agreement, together with the PAD Agreement (if applicable) and our Privacy Policy constitute the sole and entire agreement between you and Vivamo regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Service.
11.4 Notice and Electronic Communications. You agree that Vivamo may provide notices and messages to you either within the Service or sent to the contact information that you provided. You are responsible for providing Vivamo with your most current e-mail address for these purposes. If you have provided an invalid email, or such address is not capable of receiving our Vivamo’s notices, our dispatch of such email will nonetheless constitute effective notice. You may give notice to Vivamo Inc. at 440 N BARRANCA AVE #7793, COVINA, CA 91723, Attention: Legal Department. Any communication between you and Vivamo under or in connection with the Service may be made by electronic mail or other electronic means. You consent to receive communications from Vivamo electronically, and agree that all terms, conditions, or otherwise, provided to you electronically satisfy any legal requirement that would be satisfied if they were in writing.
10.6 Interpretation. In this Agreement, unless the context otherwise requires: (i) the headings and subheadings are for convenience only and shall not affect the interpretation of this Agreement; (ii) words in the singular include the plural and vice versa; (iii) references to Sections, clauses, and other subdivisions are references to sections, clauses, and other subdivisions of this Agreement unless otherwise specified; (iv) the words “including,” “includes,” “such as,” and similar terms are deemed to be followed by the phrase “without limitation”; (v) this Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted; and (vi) all references to currency are to United States dollars unless expressly stated otherwise. This Agreement does not create any third-party beneficiary rights in any individual or entity not a party to this Agreement, except as explicitly stated herein.
10.7 Assignment. You may not assign or transfer any obligation or benefit under this Agreement without our consent. Any attempt to assign or transfer in violation of the previous sentence will be void in each instance. Vivamo may, without your consent, freely assign and transfer this Agreement, including any of its rights or obligations under this Agreement. This Agreement will be binding on, inure to the benefit of, and be enforceable by the parties and their permitted assigns.
10.8 Independent Contractors. End Customer and Vivamo are not agents, representatives, partners or employees of each other and none of them shall have the power to obligate or bind the other in any manner except as otherwise expressly provided by this Agreement. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Persons other than Vivamo and End Customer, their successors and assigns, any rights or remedies under or by reason of this Agreement.
11. Your Comments and Concerns
All other feedback, comments, requests for technical support, and other communications relating to our Services should be directed to: support@Vivamo.co.
Schedule A
PRE-AUTHORIZED DEBIT TERMS AND CONDITIONS
1. Agreement
These Pre-Authorized Debit Terms and Conditions, the Pre-Authorized Debit Request Authorization Form (collectively, the “PAD Agreement”) and the End Customer Agreement constitute the entire agreement between Vivamo Inc. (“Vivamo”) and you being the person or entity identified in the Pre-Authorized Debit Request Authorization Form. By agreeing to the Pre-Authorized Debit Request Authorization Form and agreeing to these terms and conditions, you are authorizing Vivamo to arrange for funds to be debited from your bank account for the purpose of settling your transaction in accordance with the terms of the PAD Agreement and the End Customer Agreement.
2. Debit Notifications and Procedures
2.1 Notification and Timing of Debit Payments. You acknowledge that we will notify your financial institution as to the amount and timing of payments debited from the Account in accordance with the End Customer Agreement. The first debit under this PAD Agreement will occur on the debit day of the first scheduled payment set out in the Pre-Authorized Debit Request Authorization Form (“Debit Day”). If the Debit Day falls on a day that is not a Business Day, we may direct your financial institution to debit your Account on the following Business Day. You therefore waive your right to receive advance notification of the timing of the Debit Payment prior to the altered Debit Day.
2.2 Business Days. This PAD Agreement provides ongoing authorization for Vivamo to debit your bank account to settle all future payments according to the payment schedule outlined in the Pre-Authorized Debit Request Authorization Form where you have instructed us to debit your bank account.
3. Variations and Cancellation
3.1 Variations by Vivamo. We may amend this PAD Agreement at any time by giving you at least 14 days written notice. If the amount varies from your payment schedule in accordance with the End Customer Agreement, we will notify you 10 days before we withdraw the funds.
3.2 Variations by You. If you wish to stop, defer or vary a particular Debit Payment, you must notify us in writing by email at support@Vivamo.co at least 3 business days before the relevant Debit Day. This notice should be given to us in the first instance, rather than to your financial institution. For the avoidance of doubt, a variation of the Debit Payment arrangement will not alter your obligations under the End Customer Agreement.
3.3 Cancellation by You. If you wish to cancel this PAD Agreement, you must give us at least 15 days advance notice in writing before the next Debit Day. You acknowledge that, in order to cancel this authorization, you must provide written notice of cancellation to us. You may also obtain a sample cancellation form or further information on your right to cancel a pre-authorized debit agreement from your financial institution or by visiting www.nacha.org. You further acknowledge that cancellation of this PAD Agreement does not terminate or in any way affect any obligations you may have under the End Customer Agreement. In accordance with the End Customer Agreement, once a transaction has become legally binding, you may not cancel the transaction under any circumstances. In the event that this PAD Agreement is canceled, Vivamo may close out the transaction subject to the Debit Payment and you will be liable to pay to us the amount of the total loss incurred by us, together with any expenses, premiums, commissions, or other fees incurred by us as a result of any relevant foreign currency transaction being canceled, unless the cancellation occurs within 30 minutes of settlement and payment has not been disbursed, in which case you are entitled to receive a refund of all funds.
4. Your Obligations
Direct debiting may not be available on all accounts. You must ensure that your Account can be debited and that any arrangements you need to make with your financial institution to enable direct debiting from your Account have been made. You must ensure that there are always sufficient clear funds available in the Account to allow a Debit Payment to be made. You must advise us immediately if the Account is transferred or closed. You hereby warrant and guarantee that all persons whose signatures are required on the Account identified have executed the Pre-Authorization Debit Request Authorization Form.
5. Insufficient Funds
If, at any time, there are insufficient clear funds in the Account to meet a Debit Payment, you must make immediate arrangements for the Debit Payment to be made by another method or arrange for sufficient clear funds to be in your Account by an agreed time so that we can process the Debit Payment and the debit transaction may proceed. If a Debit Payment is returned unpaid by your financial institution, you will be liable for any dishonor fees charged by that financial institution. We will invoice you for those fees or include them in your next Debit Payment. You acknowledge that we may in our discretion decide to cancel a scheduled debit transaction in accordance with the End Customer Agreement and to invoice you for the resultant loss, together with any fees or charges incurred by us.
6. Disputes
You should check your Account statement regularly. If you believe that there has been an error in debiting your Account, you should contact us immediately by email at support@vivamo.co or at (346) 271-7446 by phone. We will investigate the matter and advise you accordingly. If we cannot resolve the matter to your satisfaction, you can still refer it to your financial institution which will obtain details from you of the disputed transaction and who may lodge a claim on your behalf.
7. Recourse
You have certain recourse rights if any debit does not comply with this PAD Agreement. For example, you have the right to receive reimbursement for any debit that is not authorized or is not consistent with this PAD Agreement and applicable consumer protections laws, such as the Electronic Fund Transfer Act. To obtain more information on your recourse rights, contact your financial institution or visit the National Automated Clearing House Association website at www.nacha.org.
8. Confidentiality
Vivamo cares about the protection and privacy of any personal information provided. We will make reasonable efforts to keep any information supplied by you in the Pre-Authorized Debit Request Authority secure and to ensure that any of our employees who have access to information about you do not make any unauthorized use, modification, reproduction or disclosure of that information. We will only disclose information that we have about you to the extent specifically required by law or for the purposes of this PAD Agreement and the End Customer Agreement. You acknowledge that we may use any information provided to us to verify your account details, this may include the use of third-party bank account verification providers.
9. Inquiries and Notices
Any communication to us regarding this PAD Agreement should include information reasonably sufficient for us to verify you, which may include a username and any Vivamo account number, if known. Our contact details for any notices under this PAD Agreement are as follows: Vivamo Inc., 440 N BARRANCA AVE #7793, COVINA, CA 91723.
Email: support@Vivamo.co
We will notify you by sending you notices using the email address you have provided us. Any notice will have been deemed to have been received two Business Days after it was posted.
10. Governing Law and Venue
This PAD Agreement is governed by the laws of the State of Delaware, without regard to or application of provisions relating to conflicts of law. Any lawsuit or action brought by any of the parties hereto shall be filed and adjudicated in any state or federal court of competent jurisdiction in or for the State of Delaware, and the parties hereby consent to the exclusive venue and jurisdiction of any such court.
11. Definitions
The following terms shall have the following meaning when used in this PAD Agreement:
“Account” means the United States Dollar account nominated by you in the Pre-Authorized Debit Request Authorization Form.
“Business Day” means a day other than a Saturday or a Sunday or a public holiday in the jurisdiction where the Account is located.
“End Customer Agreement” means the End Customer Agreement or other master agreement or online terms and conditions that you have entered into with Vivamo, as either a business customer or as an individual customer.
“Debit Payment” means the payment due under the payment schedule entered into by you.
“Pre-Authorized Debit Request Authorization Form” means the Pre-Authorized Debit Request Authorization Form signed by you and provided to your bank, authorizing Vivamo to debit your Account in the amount and the recurring debit date agreed to by you.