Customer Service Agreement

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Updated as of: November 20, 2024

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Welcome! Vivamo Inc. (“Vivamo”, “we”, “our”, or “us”) is excited to provide you access and use of our purchased Services. This Customer Service Agreement (“Agreement”) is between Vivamo and you (“you”, “your”, or “Customer”, as applicable) and governs your use and access to our Services (as applicable).

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THESE TERMS, TOGETHER WITH ANY APPLICABLE SERVICE SCHEDULES, GOVERN YOUR ACCESS AND USE OF OUR SERVICES AND SUPERSEDE ALL PRIOR TERMS OR AGREEMENTS BETWEEN YOU AND VIVAMO.

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 12 “CLASS ACTION AND JURY TRIAL WAIVER; ARBITRATION” BELOW FOR DETAILS REGARDING ARBITRATION.

1. Accessing the Service 

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1.1 Account and User Information

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1.1.1 Before you can access or use our Services, you will be asked to provide certain registration details and create a user account (“Account”). You must provide Vivamo with the information required by the Application, including your business name, physical address, contact information (phone and email), business identification number, the nature of your business, and certain other information as specified in the Application and as otherwise required by Vivamo. Vivamo may also collect personal information about your beneficial owners. Information required by Vivamo is needed to complete anti-money laundering and legal compliance processes. Until Vivamo approves an Application, you will not have access to the applicable Services. 

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1.1.2 If any information in the Application changes at any time, you must notify Vivamo immediately. This includes if (a) you experience or anticipate experiencing a Change of Control; (b) you experience or anticipate experiencing a material change in your business or financial condition, including if you experience or are likely to experience an insolvency proceeding; (c) the regulatory status of the business for which you are using the Services changes, including if it becomes subject, or no longer subject, to regulatory oversight; or (d) a governmental authority has notified you that you or your business is the subject of investigative action. 

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1.1.3 It is a condition of your use of the Service that all the information, materials, and content you provide is correct, current, and complete, and you agree that all information you provide to us or that we may collect will be correct, current, and complete at all times.  

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1.1.4 You agree that all information you provide to register with for the Service or otherwise is governed by our Privacy Policy made available at http://www.vivamo.co/privacy-policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy. You authorize Vivamo to undertake all commercially reasonable measures to verify your identity and the accuracy of information provided by you, which may include without limitation obtaining a credit or background report from a third-party service provider or conducting sanctions screenings. Additionally, Vivamo may request copies of financial statements or records regarding compliance with this Agreement. Failure to provide requested information may result in suspension or termination of your Account. If you do not use the Services for an extended period, you may be required to submit a new Application to obtain Services. In addition to the foregoing, you must agree to the Bank service terms provided by Vivamo.

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1.1.5 You must treat your login credentials as confidential and not disclose it to any third party, including your username or any other information. You also acknowledge that your Account is personal to you and agree not to provide any other person with access to the Service or portions of it using your username or other security information. We will treat all actions through your account as if conducted by you, whether or not you had knowledge of the unauthorized use of your Account. You agree to notify us immediately of any unauthorized access to or use of your username or any other breach of security. 

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1.2 Eligibility

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Our Service is solely offered and available to only businesses (including sole proprietors) and non-profit organizations located in the United States that are eligible to apply for a Vivamo account and use the Services. You and your Representatives each represent and warrant that: (i) you and your Representatives are of legal age and capacity in their jurisdiction to form a binding agreement with Vivamo; (ii) you are creating the account on your own behalf or have legal agency to create an account for the third party, provided that it not for the benefit of a previously suspend or terminated user of the Services. You must not access or use the Service if you are under 18 years old or access the Service. 

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1.3 Sole Proprietor Users

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If you are a sole proprietor, you and your Representative also affirm that your Representative is personally responsible and liable for your use of the Services and your obligations to Customers, including payment of amounts you owe under this Agreement.

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1.4 Account Termination and Suspension

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We have the right to disable, terminate, or suspend any username or other identifier, whether chosen by you or provided by us, at any time in our sole discretion if you have violated any provision of this Agreement. Additionally, Vivamo may suspend your access to the Services or terminate this Agreement if you do not keep your information current or fail to notify us of material changes in your business.

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2. Our Services

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2.1 Vivamo Services

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2.1.1 Our Vivamo service provides a single payments stack for software and/or gaming platforms. Vivamo will provide the purchased Services as specified in your Account and any relevant Service Schedules. By utilizing the Vivamo service, you acknowledge and agree to these terms and authorize Vivamo to perform the necessary actions to facilitate payment processing as described herein. 

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2.1.2 Subject to the terms of this Agreement, Vivamo grants you a non-exclusive, non-transferable, non-sublicensable, royalty-free license during the term of your subscription to access the Documentation, and access and use the applicable Services, as long as your access and use is (a) solely as necessary to use the Services; (b) solely for your business purposes; and (c) in compliance with this Agreement, any applicable Service Schedule and the Documentation.

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2.1.3 Vivamo provides Customer access to the Services solely to disburse funds to payees and/or to debit funds from bank accounts of payors as described in this Agreement. Customer must only submit to Vivamo valid Transactions from a bona fide funding source that is permitted for the Services and that is in compliance with Applicable Laws. Customer must not submit to Vivamo a Transaction that Customer knows or should have known to be fraudulent or not initiated for a bona fide business transaction. For purposes of this section, Customer is deemed to be responsible for the conduct of Customer’s Representatives. Customer shall ensure that the Customer Funding Account has sufficient funds available to complete each Transaction prior to initiating each Transaction. Customer shall maintain a reserve balance in the Customer Funding Account as required by Vivamo from time to time. Customer may not process a Transaction involving a Prohibited Business. Vivamo reserves the right to refuse to process and to cancel Transactions that involve a Prohibited Business or a Restricted Transaction. 

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2.1.4 When Customers initiate a Transaction request within the Services, Customer will need to provide Vivamo with certain information as specified by Vivamo. Upon receipt of the required information within specified timelines, Vivamo will then initiate the Transaction and confirm that the Transaction is complete by notification in the Customer’s Account.

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2.1.5 Vivamo makes no guarantees, warranties, representations or commitments regarding when a Payment will be received. Vivamo will not be liable for any fees, penalties or late payment interest charged as a result of a delay in Payment.

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2.1.6 Vivamo will not be liable for any failure to complete or delay in completing any Payment for any reason, including but not limited to, any of the following: (i) Customer Funding Account does not contain sufficient funds, (ii) a debit is rejected or returned by payor’s bank or financial institution; (iii) a payee rejects or returns the Payment to Vivamo for any reason; (iv) the Services are unavailable or suffer a delay; (v) Customer has provided Vivamo with incorrect information; or (vi) any event beyond the control of Vivamo.

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2.1.7 Vivamo may, in its sole discretion, place holds on payments to verify payee’s or payor’s identity or the legality of a Transaction. Vivamo may request, and Customer shall provide, additional information regarding a Payment before a hold is released. In addition to holds, Vivamo reserves the right to deny or reverse payments at its own discretion, independent of availability of credit from financial institutions. Vivamo will not be liable for any fees, penalties or late payment interest charged to Customer or any third party as a result of a delay in payments that are held, denied or reversed.

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2.1.8 Vivamo operates as a direct acquirer or ISO, handling onboarding directly for credit card processing. Vivamo provides direct support and manages gateway and data access and management to centralize tooling, provided the Customer acts as the Customer of Record for your transactions.

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2.1.9 Where applicable to Vivamo’s Customer of Record Service for ACH debit, ACH credit, or direct debit, Vivamo acts as a reseller of the processor’s services and subject to all applicable Third Party Terms. 

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2.3 Your Bank Accounts and Funds 

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2.3.1 You must designate at least one Bank Account in connection with the Services provided by Vivamo. To the extent ACH transactions consist part of the Services provided, 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 Customer’s designated bank account. By use of the Service, you hereby authorize Vivamo i to debit and credit your designated Bank Account as described in this Agreement. You must not grant or assign to any third party any lien on or interest in funds that may be owed to you under this Agreement until such funds are deposited into your designated Bank Account.

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2.3.2 Certain Services provided by Vivamo involve regulated money transmission under U.S. law. To the extent your use of the Services involves money transmission or other regulated services under U.S. law, Vivamo’s designated affiliate will provide those regulated services, and the affiliate terms accessible from your Account will apply to you, unless otherwise specified. Vivamo is not a bank and does not accept deposits.

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2.3.3 If you leave any funds dormant in your Account and provide no instructions on where to send them, Vivamo may deem the funds abandoned by you and deliver them to the appropriate governmental authority. However, if required by law, Vivamo will attempt to notify you before doing so.

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2.3.4 Customers are required to notify Vivamo promptly of any changes to their bank account details or any other information that may impact the Services, including without limitation, changes impacting the processing of ACH transactions.

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2.4 Access to Bank Account and Customer Funding Account

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2.4.1 As applicable to the Services provided, you hereby grant, agree and authorize Vivamo to manage all aspects of payment processing related to the Services on your behalf, including but not limited to, collecting payments from Customers, handling refunds and chargebacks, managing customer inquiries related to payments, and settling funds to your designated accounts.

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2.4.2 In connection with the Services provided, you shall provide Vivamo and its services providers the necessary access to your applicable accounts and data and information required to perform payment processing, including transaction details, customer information, and any other relevant data.

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2.4.3 In connection with the Services provided, you shall provide Vivamo and its services providers the necessary access to your applicable accounts and data and information required to perform payment processing, including transaction details, customer information, and any other relevant data. You further agree to provide Vivamo any assistance or documentation required by Vivamo to fulfill its obligations under this Agreement.

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2.4.4 You are responsible for complying with all applicable laws and regulations pertaining to payment processing and for managing any refunds, chargebacks, and customer inquiries not covered by Vivamo’s agreed-upon support.

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2.5 Service Schedules

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Specific terms and conditions for Vivamo will be detailed in your Account, but may also be detailed in Service Schedules. If no addendum exists, the terms in your Account and this Agreement govern. By using a Service, you agree to comply with the relevant addendums. In case of conflict, the order of precedence is: (a) Service Schedules; (b) this Agreement; (c) other incorporated terms. Your use of the Services may also be subject to additional terms agreed upon through your Account.

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2.6 Intellectual Property Rights

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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.

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2.7 Trademarks

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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.

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2.8 Service Restrictions

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This Agreement permits you to use the Services solely as described herein. You may only use the Services for business purposes. You must not, and must not enable or allow any third party to:

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• use the Services for personal, family, or household purposes;
• act as a service bureau or pass-through agent for the Services with no added value to customers;
• work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited, or access or attempt to access non-public Vivamo systems, programs, data, or services;
• reverse engineer or attempt to reverse engineer the Services;
• use the Services to engage in any activity that is illegal, fraudulent, deceptive, or harmful;
• perform or attempt to perform any action that interferes with the normal operation of the Services or affects other Vivamo users’ use of Vivamo services;
• reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the software, documentation, or proprietary materials provided by the Service;
• delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Service;
• modify copies of any materials from the Service;
• introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
• use any robot, spider, or other automatic device, process, or means to access the Service for any purpose, including monitoring or copying any of the material on the Service;
• use the Service for competitive purposes or to collect any market research for a competition business;
• use the Service in any way that violates any applicable federal, state, local, or international law or regulation, including, without limitation, any laws regarding the export of data or software to and from the United States or other countries;
• exceed any Services usage limitations stated in the Documentation; or
• copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any part of the Services, Documentation, or our Website except as permitted by applicable law.

If you breach the restrictions in these Terms, your right to use the Service will stop immediately and you must, at our option, return or destroy any information you may have regarding the Service. No right, title, or interest in or to the Service or any content on the Service is transferred to you, and all rights not expressly granted are reserved by Vivamo. Any use of the Service not expressly permitted by these Terms is a breach of this Agreement and may violate copyright, trademark, and other laws.

If you wish to make any use of material on the Service other than that set out in this section, please address your request to: support@Vivamo.co.

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2.9 Monitoring and Enforcement

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We have the right to immediately suspend or terminate your Account with or without notice, or take any other action that we deem necessary or appropriate in our sole discretion, including if we believe that your use of the Service violates these Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public, or could create liability for Vivamo, as determined in our sole discretion. 

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose information. YOU WAIVE AND HOLD HARMLESS VIVAMO AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

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2.10 Support

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Vivamo will provide you with support to resolve general issues relating to your Account and your use of the Services through resources and documentation that Vivamo makes available on our Website and in the Documentation. Vivamo’s support is also available by contacting Vivamo at support@Vivamo.co. Vivamo is not responsible for providing support to your customers.

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For specific inquiries or technical support, you may reach out to us via the contact details provided in your Account dashboard. Please note that while we strive to respond promptly, response times may vary based on the complexity of the issue and current support request volumes.

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2.11 Bank Service Terms and Third Party Services

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2.11.1 By using the Services, in addition to this Agreement, Customer expressly agrees to abide by and be bound by the terms and conditions of the Bank Service Terms, and any other applicable third party terms and conditions, which are made available at http://www.vivamo.co/third-party-terms (“Third Party Terms”). Customer acknowledges and agrees that the any of the Third Party Terms may be updated from time to time, and it is the Customer's responsibility to review the most current version. Continued use of the Services following any updates to theThird Party Terms constitutes acceptance of those changes. If the Customer does not agree to the updated terms, the Customer must cease using the Services immediately.

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2.11.2 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, or recommend any third-party services to you. 

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2.11.3 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, is subject to that applicable third-party service’s own terms of use and privacy policies.

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3. Fees and Payments

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3.1 Service Fees

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The fees for using Vivamo’s Services will be listed in your Account, unless otherwise agreed in writing between you and Vivamo. Vivamo reserves the right to modify the fees at any time. If there is a fee change for a Service you are currently using, Vivamo will notify you at least 90 days before the new fees take effect. However, if Vivamo itself does not receive prior notice of a change in its costs or if the notice given to Vivamo does not allow for a full 90-day notice period, the period of prior notice to you shall be correspondingly shortened.

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3.2 Collection of Fees

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You are responsible for ensuring timely payment of all fees and other amounts you owe under this Agreement. Vivamo may deduct or offset these amounts from your Bank Account balance or invoice you directly, or otherwise enroll you in automated debiting. If your account is insufficient or if you fail to pay any amounts when due, Vivamo may, as permitted by law, collect the owed amounts from:

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• Any established reserves.
• Funds payable by Vivamo or its affiliates to you.
• Your designated bank accounts.
• Any Vivamo account associated with you or your affiliates.

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If a currency conversion is required, Vivamo will use its prevailing conversion rates and may charge associated fees. We reserve the right to charge interest of 1.5% per month or the maximum allowable by applicable law, whichever is less, for any amounts we are unable to collect that are due. You are solely responsible for all costs of collection, including reasonable attorneys’ fees, for any payment default.

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3.3 Debit Authorization

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BY AGREEING TO THESE TERMS, YOU AUTHORIZE VIVAMO TO DEBIT YOUR DESIGNATED BANK ACCOUNTS, WITHOUT SEPARATE NOTICE, FOR ANY AMOUNTS DUE UNDER THIS AGREEMENT. This authorization remains effective until all your Vivamo accounts are closed and all owed amounts are paid. If applicable laws grant you the right to revoke this debit authorization, you waive that right to the extent permitted by law.

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3.4 Taxes

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3.4.1 Vivamo’s fees do not include any taxes. You are solely responsible for (i) determining the taxes applicable to your transactions and payment of fees, and (ii) assessing, collecting, reporting, and remitting those taxes. If Vivamo is required to withhold taxes, it may deduct those amounts from payments to you and remit them to the appropriate tax authorities. If you are exempt from such taxes, you must provide a valid certificate of exemption, and Vivamo will not withhold the taxes covered by the certificate. You must promptly provide accurate tax information as requested by Vivamo and notify Vivamo of any discrepancies.

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3.4.2 If Vivamo is required to withhold any taxes, it may deduct those amounts from payments to you and remit them to the appropriate tax authorities. If you are exempt from such taxes, you must provide a valid certificate of exemption, and Vivamo will not withhold the taxes covered by the certificate. You must promptly provide accurate tax information as requested by Vivamo and notify Vivamo of any discrepancies.

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3.4.3 In the event Vivamo is charged any government charges, taxes or similar amounts by any country, jurisdiction, government agency or the like, which are properly payable by you, you shall pay Vivamo such amount in advance of such amounts being due. Vivamo may collect such amounts from you without notice or demand.

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3.4.4 Vivamo may send documents to you and taxing authorities for transactions processed using the Services. Specifically, law may require Vivamo to file periodic informational returns with taxing authorities related to your use of the Services. Vivamo may send tax-related information electronically to you.

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3.5 Errors

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In the event of any error in the calculation or payment of fees, the Customer must report such errors or overpayments within sixty (60) days from the date of occurrence. Failure to do so will result in the Customer forfeiting any rights to address these issues. Upon receiving notice of any fee errors within the specified sixty (60) days, Vivamo agrees to investigate and rectify such errors within thirty (30) days. In cases of underpayment, the Customer is required to correct the underpayment within thirty (30) days from the date it occurred.

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4. Representation and Warranties

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You represent and warrant to Vivamo at all times during the Term that: (a) you and your Representatives are of legal age and capacity to form a binding agreement with Vivamo, and you have the authority to enter into and comply with this Agreement; (b) you have provided accurate, current, and complete information during the Application and registration process and will promptly update such information if there are any changes; (c) your use of the Services does not conflict with, violate, or constitute a default under any material agreement or instrument to which you are a party or bound, or any applicable law, regulation, or order of any court or other governmental body having jurisdiction over you; (d) you will comply with all applicable laws, regulations, and policies related to your use of the Services, including but not limited to anti-money laundering, consumer protection, financial services, electronic communications, and anti-bribery and anti-corruption and data protection laws and regulations; (e) you will provide necessary notifications and obtain all required consents from relevant individuals, including your Customers, to allow Vivamo to legally collect, use, retain, and disclose Personal Data as outlined in this Agreement and Vivamo’s Privacy Policy; (f) you will implement and maintain appropriate technical and organizational measures to protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access; (g) you will promptly notify Vivamo of any actual or suspected unauthorized acquisition, modification, disclosure, access to, or loss of Personal Data on your systems; (h) you will handle all requests from data subjects regarding their rights under applicable data protection laws and, upon written request, will provide assistance to Vivamo to respond to such data subject requests; (i) you will comply with all instructions and requirements from Vivamo and its auditors in case of a suspected data breach affecting your systems or Account, and bear all related costs for any required audits; and (j) you are a business (which may be a sole proprietor) or a non-profit organization located in the United States and meet the eligibility requirements set forth in this Agreement to use the Services.

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5. Confidentiality, Privacy and Data Use

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5.1 Confidential Information

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5.1.1 From time to time during the Term, Vivamo, Bank, and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property (including the Services), trade secrets, third-party confidential information, and other sensitive or proprietary information including Personal Data, whether orally or in written, electronic, or other form or media (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party.

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5.1.2 The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, third-party service providers, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder, for legal reasons or for operational efficiencies and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Laws, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. In any case, the receiving party shall not disclose more Confidential Information than it is required to do under Applicable Laws or the administration thereof.

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5.1.3 Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to protection under applicable laws.

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5.1.4 Upon termination or expiry of this Agreement for any reason, the receiving party shall, at the disclosing party’s option, (i) return the Confidential Information without undue delay and/or (ii) securely destroy the Confidential Information without undue delay, and in accordance with industry’s best standards. Upon request, the receiving party shall confirm in writing that the Confidential Information has been returned and/or deleted. Notwithstanding the foregoing, the receiving party is authorized to keep a copy of the Confidential Information as required for business continuity purposes, pursuant to internal retention schedules, and for legal, auditing, or financial reasons.

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5.2 Privacy Policy and Disclosures; Customer Data

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5.2.1 You are required to provide your Customers with a privacy policy that adheres to all relevant laws and regulations. Our Privacy Policy outlines how we collect, use, retain, disclose, and protect the Personal Data you provide to us. When you share Personal Data with Vivamo or permit us to gather Personal Data, you must ensure that you give all necessary notifications and obtain all required permissions from the relevant individuals (including your Customers), including any required by law. This is to ensure that Vivamo can legally collect, use, retain, and disclose the Personal Data as outlined in this Agreement and our Privacy Policy. You are responsible for deciding the content of the notices provided to your Customers.

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5.2.2 Customer hereby grants to Vivamo a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Vivamo to provide the Services to Customer. Customer will ensure that Customer Data and any use of Customer Data in accordance with this Agreement will not violate any policy or terms referenced in or incorporated into this Agreement or any Applicable Laws, including without limitation, privacy laws. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Data and for obtaining consents required to use Customer Data.

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5.2.3 In the event that a Customer of Customer creates an account with Vivamo, the information provided by such Customer will be subject to a separate agreement directly between the Customer and Vivamo. Vivamo is authorized to process Customer information in accordance with the terms of this separate agreement and as disclosed in Vivamo’s Privacy Policy and such agreement with the Customer, and such information will not be deemed Customer Data.

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5.3 Data Processing 

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5.3.1 We will only Process Personal Data for the purposes required to provide the Service. The scope of Processing includes any actions necessary to fulfill Vivamo’s obligations under the Agreement, including but not limited to: data storage, analysis, retrieval, and transmission. 

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5.3.2 You acknowledge and agree that you are solely responsible for handling requests from data subjects regarding their rights under applicable data protection laws. This includes, but is not limited to, requests for access, correction, deletion, or restriction of their Personal Data. Vivamo will, to the extent legally permitted and upon your written request, assist you in responding to such data subject requests.

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5.3.3 Vivamo will implement and maintain appropriate technical and organizational measures to protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access. These measures will be appropriate to the nature of the data and the risks associated with the Processing.

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5.3.4 You authorize Vivamo to engage third-party sub-processors to Process Personal Data on Vivamo’s behalf, including without limitation, AptPay US Inc. Vivamo will ensure that any sub-processor is bound by contractual obligations that are at least as protective of Personal Data as those set out in this Agreement. A list of sub-processors is available upon request and will be updated from time to time.

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5.3.5 You consent to the transfer of Personal Data to countries outside of the jurisdiction in which the data was originally collected, to the United States, provided that such transfers comply with applicable data protection laws.

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5.3.6 In the event of a data breach affecting Personal Data, Vivamo will notify you without undue delay, and in no event less than as required under applicable law, after becoming aware of the breach. The notification will include sufficient information to allow you to meet any obligations to report or inform data subjects or data protection authorities of the breach.

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5.3.7 Upon termination of the Agreement, Vivamo will, at your choice and to the extent technically feasible, return or delete all Personal Data, unless further storage of the Personal Data is required by law. We may retain such information if required by law, required for Vivamo to perform any post-termination obligations, this Agreement otherwise states, or we have agreed to otherwise in writing.

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5.3.8 If we provide you with information regarding a transaction that may potentially be fraudulent or that an individual cannot be verified, we may incorporate your subsequent actions and inactions into our fraud and verification model, for the purpose of identifying future potential fraud.

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5.3.9 You must notify us immediately and without undue delay if you become aware of any actual or suspected unauthorized acquisition, modification, disclosure, access to, or loss of Personal Data on your systems.

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5.4 Audit Rights

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If Vivamo suspects that a data breach has taken place within your systems or Account, Vivamo may require the involvement of a third-party auditor, approved by Vivamo, to assess the security of your systems and facilities. You are required to fully comply with all reasonable requests for information or assistance made by the auditor. You will bear all costs and expenses related to these audits. Vivamo reserves the right to share any reports issued by the auditor with relevant Financial Services Partners who are bound by duties of confidentiality.

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5.5 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Vivamo may monitor Customer’s use of the Services and collect and compile data and information related to such use of the Services to be used by Vivamo and its service providers in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Vivamo and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Vivamo. Customer acknowledges that Vivamo may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Vivamo may (i) make Aggregated Statistics publicly available in compliance with Applicable Laws, and (ii) use Aggregated Statistics to the extent and in the manner permitted under Applicable Laws. Aggregated Statistics shall not reveal any Personal Data.

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6. Indemnification

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6.1 Vivamo Indemnification

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6.1.1 Vivamo will indemnify and defend you and your Representatives from and against any Claims that the Service you purchased, infringes any U.S. patent, copyright, trademark, or misappropriates a trade secret. Vivamo will pay all damages, costs, and expenses finally awarded to third parties against you in such action or agreed to in settlement. 

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6.1.2 If your use of the Service delivered under this Agreement is, or is likely to be, enjoined due to a Claim of infringement or misappropriation, Vivamo will, at its expense, (i) procure for you the right to continue using the Service, or (ii) replace or modify the Service to make it non-infringing. If neither of the foregoing alternatives is commercially reasonable, Vivamo shall refund any fees paid for the infringing Service.

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6.1.3 Notwithstanding the foregoing, Vivamo will not be liable for any such Claim if (i) the Service was used in a manner not authorized under this Agreement, (ii) you continue using the Service after receiving notice from Vivamo to discontinue use, (iii) you altered the Service, or (iv) you used the Service in combination with any other product, program, or data not authorized by Vivamo or its agent, and such infringement claim would not have occurred absent such combination. 

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6.1.4 You must promptly notify us of any infringement or misappropriation Claim for which you seek indemnification; however, any delay or failure to notify will not relieve us of our obligations under this Section 6.1, except to the extent we have been prejudiced by the delay or failure. You must give Vivamo sole control and authority to defend and settle the Claim, but (i) you may participate in the defense and settlement of the Claim with counsel of your own choosing at your own expense; and (ii) Vivamo will not enter into any settlement that imposes any obligation on you (other than payment of money, which Vivamo will pay) without your consent. You must reasonably assist us in defending such Claim.

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6.1.5 THIS SECTION 6.1 STATES YOUR SOLE AND EXCLUSIVE REMEDY AND VIVAMO’S ENTIRE LIABILITY AND OBLIGATION FOR CLAIMS AGAINST YOU FOR INFRINGEMENT OR MISAPPROPRIATION.

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6.2 User Indemnification

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You agree to indemnify, defend and hold harmless Vivamo and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees, court costs and expenses, and investigatory expenses), made or asserted by any third-party due to or arising out of your breach of this Agreement, or your violation of any law or the rights of a third-party in connection with your use of the Service, including any allegations that the Processing of Personal Data by Vivamo in accordance with this Agreement violates applicable data protection laws.

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7. Feedback

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During the Term, you and your Affiliates may provide Feedback to us or our Affiliates. If you send or transmit any communications or materials to Vivamo by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating to the Services, or any comments, questions, suggestions, or the like (“Feedback”), you grant, on behalf of yourself and your Affiliates, to Vivamo and its Affiliates a perpetual, worldwide, non-exclusive, irrevocable, royalty-free license to exploit that Feedback for any purpose, including developing, improving, manufacturing, promoting, selling, and maintaining Vivamo services. Vivamo is free to use such Feedback without any other action, condition for payment or otherwise, or limitation between the parties governing such Feedback. All Feedback is our confidential information.

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8. Changes to the Service and These Terms 

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8.1 THIS AGREEMENT MAY BE MODIFIED OR AMENDED BY VIVAMO IN ITS SOLE AND ABSOLUTE DISCRETION AT ANY TIME. If any material modifications or changes are made, and you have registered to use the applicable Services, Vivamo will use good faith efforts to notify you via email or otherwise provide notice through the Service. Changes will be effective immediately when posted. Continued use of our Services is deemed your consent to and acceptance of these terms as revised. If you do not agree to any change(s) your sole remedy is to stop using and accessing the Service. 

8.2 Vivamo may make modifications to our Services or specific components of the Service and will use good faith efforts to notify users of any material modifications. Vivamo reserves the right to discontinue offering any Service in its sole discretion without any liability.

9. Disclaimers

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9.1 Disclaimer of Service Availability

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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 CustomerABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

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9.2 Service Quality

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You understand and agree that Vivamo cannot and does not guarantee or warrant that the Services will be free of viruses, bugs, or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your specific requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Services for any reconstruction of any lost data.

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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.

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9.3 Third-Party Services Disclaimer

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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.

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9.4 United States Accessibility

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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.

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9.5 Exclusions

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The foregoing disclaimers will apply notwithstanding the failure of the essential purpose of any limited remedy. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

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10. Limitation on Liability

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10.1 General Limitation

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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.

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10.2 Monetary Limitations

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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.

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10.3 Time to File Claims

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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.

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10.4 Exclusions

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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.

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10.5 Force Majeure

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In no event will we be liable or responsible to you or be deemed to have defaulted in any of our obligations under this Agreement for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond our reasonable control.

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11. Governing Law and Jurisdiction

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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).

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Except as otherwise required by Section 12 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.

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12. Class Action and Jury Trial Waiver; Arbitration

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12.1 Class Action Waiver

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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.

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12.2 Arbitration Agreement

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12.2.1 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.

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12.2.2 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.

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12.2.3 The parties acknowledge that this Agreement evidences a transaction involving interstate commerce and notwithstanding Section 11 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.

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12.3 Arbitration Proceedings

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12.3.1 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. 

12.3.2 Subject to the requirements outlined in Section 12.3.1 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.

12.3.3 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.

12.3.4 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.

12.3.5 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.

12.4 Jury Trial Waiver

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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.

13. Digital Millennium Copyright Act (“DMCA”) Notice

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In the event materials or content are made available through the Service by third parties not within our control, Vivamo is under no obligation to, and does not, scan such content for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by it to infringe another party’s copyright to remain displayed or available on our Website or through the Services. If you believe any materials on our Website or the Service infringe a copyright, you should provide us with written notice that at a minimum contains the following:

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i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.

iv. Information reasonably sufficient to permit Vivamo to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

v. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

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Vivamo Inc. at 440 N BARRANCA AVE #7793, COVINA, CA 91723, Attention: Legal Department.

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It is our policy to terminate relationships regarding content with third parties who repeatedly infringe the copyrights of others.

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14. General Provisions

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14.1 Waiver

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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.

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14.2 Severability

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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.

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14.3 Entire Agreement

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This Agreement, together with any applicable Service addendums, 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. 

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14.4 Notice and Electronic Communications

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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.

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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.

14.5 Legal Recourse

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Vivamo may respond to and comply with any Legal Process that Vivamo believes to be valid. Vivamo may deliver or hold any funds or, subject to the terms of Vivamo’s Privacy Policy, any data as required under the Legal Process, even if you are receiving funds or data on behalf of other parties. Where law permits, Vivamo will notify you of the Legal Process by sending a copy to the email address in your Account. Vivamo is not responsible for any losses, whether direct or indirect, that you may incur as a result of Vivamo’s response or compliance with a Legal Process in accordance with this Section 14.5.

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14.6 Interpretation

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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.

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14.7 Assignment 

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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.

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14.8 Export 

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You must not use, export, re-export, or transfer the Services, Documentation, or any related technology except as authorized by United States law and the laws of the jurisdiction(s) in which the Services or Documentation were distributed and obtained, including by providing access to the Services or Documentation: (a) to any individual or entity ordinarily resident in a country or region subject to comprehensive U.S. sanctions (“High-Risk Jurisdiction”); or (b) to any individual or entity that is the target of U.S. economic sanctions or export control restrictions (“High-Risk Person”). By using the Services, you represent as of the Effective Date and warrant during the Term that you are not: (i) located in or organized under the laws of any High-Risk Jurisdiction; (ii) a High-Risk Person; or (iii) owned 50% or more, or controlled, by individuals or entities (1) located in or, as applicable, organized under the laws of any High-Risk Jurisdiction; or (2) any of whom or which is a High-Risk Person. You must not use the Services for any purposes prohibited by applicable law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons. You shall be solely responsible for any claims, losses, costs, liability and charges, including reasonable legal fees, incurred by us as a result of your breach of this provision.

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14.9 Anti-Bribery/Corrupt Practices

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You and your respective Affiliates agree that you will not take any action under this Agreement that could cause Vivamo to be in violation of any applicable anti-bribery and anti-corruption laws or regulations, including but not limited to the US Foreign Corrupt Practices Act and the UK Bribery Act 2010.  These laws prohibit the payment or promise of payment of anything of value, either directly or indirectly, to the representative of a commercial entity or an official of a foreign government, foreign political party, party official, or candidate for foreign office, for the purpose of influencing any act or decision in their official capacity, or inducing such person to use their influence to assist a party to this Agreement to obtain, retain or direct business, or secure any improper business advantage. Any breach of this clause shall be deemed a material breach and if you become aware of any such violation, you will immediately notify us in writing.  

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14.10 Independent Contractors

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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 Customer, their successors and assigns, any rights or remedies under or by reason of this Agreement.

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15. Your Comments and Concerns

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All other feedback, comments, requests for technical support, and other communications relating to our Services should be directed to: support@Vivamo.co. 

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16 Definitions

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 “Applicable Laws” means applicable rules, laws, regulations, written guidance, Know Your Customer and legal requirements, including but not limited to, the Bank Secrecy Act, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, the Anti-Money Laundering Act 2020, the Foreign Corrupt Practices Act, Data Protection Laws and all other applicable anti-corruption and anti-bribery laws. Customer will not engage with a person or entity identified on the U.S. Treasury Department’s Office of Foreign Assets Control of specially designated nationals and blocked persons. Such list of Persons can be found at www.treasury.gov/ofac.

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“Application” means any application forms provided by Vivamo to Customer to obtain the Services.

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“Bank” means the financial institution or bank that processes credit and debit card transactions for Customers and is responsible for facilitating the transaction process, ensuring that funds are transferred from the cardholder’s bank to the Customer’s account.

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“Bank Account” means the account of the Customer within the Services that allows access to the Services and allows Customer to initiate Transactions.

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“Change of Control” means (a) an event in which any third party or group acting together, directly or indirectly, acquires or becomes the beneficial owner of, more than 50% of a party’s voting securities or interests; (b) a party’s merger with one or more third parties; (c) a party’s sale, lease, transfer or other disposal of all or substantially all of its assets; or (d) entering into of any transaction or arrangement that would have the same or similar effect as a transaction referred to in the foregoing (a)-(c); but, does not include an initial public offering or listing.

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“End-Customer” means the individuals or entities that initiate a transaction with the Customer, for which the Customer has acquired the Vivamo Services.

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“Documentation” means Vivamo’s user manuals, handbooks, and guides relating to the Services provided by Vivamo to Customer either electronically or in hard copy form/end user documentation relating to the Services.

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“Customer Data” means information, data, and other content, in any form or medium that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Representative through the Services.

“Customer Funding Account” means the commercial custodial account established by the Customer Acquiring Provider for the benefit of Vivamo and its Customers and used to fund and settle Transactions processed by Vivamo as per this Agreement.

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“Payment” means the funds disbursed or collected by the Services.

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“Personal Data” means any information that is defined as personal information under Applicable Laws.

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“Prohibited Business” means a business that is prohibited from using the Services as specified by Vivamo from time to time.

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“Representative” means an individual submitting your Application or otherwise authorized by Customer as user of the Customer’s Account and/or the Services.

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“Restricted Transaction” means a transaction contrary to Applicable Laws or a transaction that is not compliant with the use case specified in an Application.

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“Services” means the services provided by Vivamo, either directly, as a reseller or otherwise under this Agreement, namely the Vivamo service to facilitate Transactions selected by Customer.

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“Transaction” means the disbursement of funds to payees by way of directly crediting funds to bank accounts, prepaid cards and digital wallets and/or the collection of funds from payors by way of directly debiting bank accounts as selected by Customer through the Application, but does not include a Restricted Transaction.

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