These Terms of Service (“Terms of Service”) constitute the terms and conditions that govern the relationships between VIVA VIRTUAL SOLUTIONS, LLC (“VIVA”) and its clients (each a “Client”) who agree to receive virtual assistant services from VIVA by entering into a VIVA Services Agreement, or who agree to receive managed services from VIVA by entering into a VIVA Managed Services Agreement (in either circumstance, a “Services Agreement”). These Terms of Service are expressly incorporated into each Services Agreement. The services provided by VIVA under a Services Agreement may be generally defined hereinafter as the “Services.” All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Services Agreement. By signing a Services Agreement or otherwise receiving any Services from VIVA, Client agrees to be bound by these Terms of Service.

1. Relationship of the Parties. In providing the Services, VIVA (and its representatives) will act as an independent contractor and not as an agent, partner, employee, or representative of Client. Nothing in the Services Agreement or these Terms of Service shall be construed to create a partnership, joint venture, employment relationship, or fiduciary relationship between the parties.
2. Confidentiality of Client Information. In connection with the provision of the Services, VIVA may require access to the Client’s books, records, and other information regarding Client, which shall be provided by Client or Client’s designated third-party representatives (“Client Information”). Except as consented to in writing by Client or as required by applicable law or court order, VIVA will maintain the confidentiality of all Client Information and will use the Client Information for the sole purpose of providing the Services; provided, however, that no confidentiality obligations will apply to Client information that is publicly available or was rightfully obtained from a third party. Any work product created by VIVA in the course of providing the Services and paid for by Client will be the property of Client. In the event VIVA is deemed to have any right, title, or interest to any work product created for and paid by Client, VIVA shall waive such right in favor of Client and shall take all reasonable action as requested by client to secure Client’s ownership rights. VIVA agrees to control the use and disclosure of Client Information with diligence and care and to treat the Confidential Information with the same level of protection as it affords its own confidential information of a similar nature. VIVA may share Client Information with its agents and representatives who reasonably need to know such information to perform VIVA’s obligations under the Services Agreement.
3. Reliance on Client Information. VIVA will rely on the Client Information provided by Client in performing the Services and will not independently verify or audit Client Information. Accordingly, it is Client’s sole responsibility to ensure that Client Information is accurate and complete and to inform VIVA promptly of any suspected error. Services provided by VIVA are not intended to uncover inherent errors in Client Information; however, VIVA may notify Client if any such errors are discovered. VIVA shall not be liable, in any manner, to any third party or any governmental authority, and Client shall defend, indemnify and hold VIVA harmless from and against any claims, damages, causes of action, or criminal fines or penalties relating to, arising out of, or concerning any errors or mistakes in any work product, or any other failure in the performance of the Services that relates to, arises out of, or is caused by Client’s failure to deliver accurate, complete, and timely Client Information to VIVA. Client agrees to deliver all relevant Client Information to VIVA on a timely basis as requested by VIVA. To the extent VIVA does not receive necessary Client Information within the timeframes requested, which delays VIVA’s delivery or completion of the Services, Client will nonetheless remain responsible for the payment of all fees and expenses required under the Services Agreement arising out of the Services.
4. Default Interest Fees, Collection Costs, and Rate Increases. All fees and expenses required to be paid by Client to VIVA arising out of the Services shall be due following the payment terms agreed upon in the Services Agreement.  Further, Client understands and agrees that if Client fails to pay any outstanding invoices following written notice from VIVA, VIVA may: (i) assign the outstanding balance to a collections agency; (ii) report Client’s non-payment to the credit bureaus; and (iii) file a civil legal action to collect the amounts owed.  Client agrees to pay all costs incurred by VIVA in collecting any unpaid fees and expenses, including all collection agency fees and costs, all court costs, witness and expert witness fees, filing fees, and reasonable attorneys’ fees, whether incurred prior to, during or after any mediation, arbitration, litigation, bankruptcy, receivership, liquidation, collection or appellate proceeding. The rates charged to Client by VIVA will automatically increase by up to five (5%) annually. Notwithstanding the foregoing, VIVA reserves the right to increase the rates as needed to accommodate market conditions.
5. Background Checks. As a matter of standard practice, VIVA conducts background checks of its personnel, including the specific personnel providing the Services to Client pursuant to the Services Agreement. To the extent that VIVA is hiring new personnel to provide the Services to Client, and Client has requested an expedited start date, VIVA will run the background check following its standard practice and notify Client if the new personnel does not meet VIVA’s background check standards.
6. Termination. Client Termination of Term Auto Renewal. Before the expiration of the current term, the Client may terminate the auto renewing Services Agreement upon sixty (60) days prior written notice by certified mail to VIVA.
   • VIVA Termination of Services Agreement. Following five (5) days prior written notice to the Client regarding (a) an uncured material breach of any covenant, obligation, representation or warranty of the Services Agreement or Terms of Service (b) or due to a Client’s failure to cooperate, attend, participate in, or respond to requirements of the VIVA in the provision of the Services; (c) a petition in bankruptcy is filed by or against the Client, or the Client becomes insolvent or admits its inability to pay its debts generally as they become due, or the Client makes a general assignment for the benefit of creditors.
7. Effect of Termination.  In the event of any termination, the Client shall be responsible for all fees and costs under the Services Agreement for the then current term, plus any additional period applicable under the Termination paragraph above. The confidentiality obligations of VIVA set forth in Section 2 of these Terms of Service shall survive for two (2) years after the termination of the Services Agreement or completion of the Services.
8. Client Information. Client acknowledges and understands that VIVA’s policy is to delete, destroy or dispose of all communications and Client files and records (including but not limited to emails) that are non-essential for the ongoing performance of Services immediately after receipt or last use. Client is on notice to save all of its work, data, and records on its own system to keep such documentation intact. VIVA shall have no obligation to maintain records for Client other than what is necessary to perform the Services during the term of the Agreement. Notwithstanding anything else herein to the contrary, VIVA, at its sole discretion, may retain copies of its work product and supporting information for its records. Under no circumstances will VIVA be considered a “custodian of records” under any US Federal or state law or regulation. Further, if Client utilizes a storage system for storing its records and data, VIVA shall not be the creator or controller of such system. Client may allow VIVA access to such storage system to provide the Services, but access and authorization to access such system shall revert fully and exclusively to Client upon completion of the Services or termination of the Services Agreement.
9. Indemnification by Client. Except to the extent caused by the gross negligence, fraud, or willful misconduct of VIVA, Client agrees to indemnify, defend and hold VIVA harmless from and against all claims, damages, causes of action, fines, and penalties (collectively, “Claims”) from any third-party or governmental entity relating to, concerning or arising out of (i) the Services; (ii) third-party reliance upon VIVA’s work product; (iii) late or missed filings or deadlines caused by past-due invoices, or any other cause of VIVA work stoppage permitted in the Services Agreement, these Terms of Service, or applicable law; or (iv) any infringement of any intellectual property or trade secrets by reason of Client Information or work product based upon such Client Information. Client agrees to assume full financial responsibility for the payment of any loss, liability, or expense (including but not limited to reasonable attorneys’ fees) incurred by VIVA in connection with any such Claim and the defense or settlement of any such Claim. This Section shall survive termination of the Services Agreement. VIVA may direct the defense and settlement of any such Claim with counsel of VIVA’s choosing, and Client will provide VIVA with reasonable assistance, as requested. VIVA shall not be liable for any settlement of an action effected without its written consent, which consent shall not be unreasonably withheld.
10. Miscellaneous Expenses. To the extent that the Client requests that VIVA provides any out-of-town work while providing the Services, then, in addition to reimbursing VIVA all other relevant costs and expenses incurred in performing the Services, including costs of travel and lodging, Client shall pay to VIVA a per diem of $60 per VIVA consultant per day for meals. Moreover, to the extent that the Client requests that VIVA provide its consultants for such number of hours in a given day or week that will trigger over-time or double-time pay under applicable municipal, state, or federal law, VIVA shall pass on to the Client, and the Client hereby agrees to reimburse VIVA for, all increased labor costs and expenses, including the overtime and double-time pay.
11. Limited Warranty. VIVA represents and warrants that it will perform the Services diligently, professionally, and competently following industry standards, utilizing personnel with a level of skill commensurate with the Services to be performed. VIVA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF ACCURACY, QUALITY, FREEDOM FROM ERROR, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION GIVEN BY VIVA, ITS AGENTS, OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY PROVIDED HEREIN.
12. Limitation of Liability. IN NO EVENT WILL VIVA BE LIABLE TO CLIENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, RELIANCE, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WHETHER OR NOT VIVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. MOREOVER, VIVA’S TOTAL LIABILITY UNDER THE SERVICES AGREEMENT AND THESE TERMS OF SERVICE SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED THE TOTAL AMOUNT OF FEES PAID BY CLIENT TO VIVA UNDER THE SERVICES AGREEMENT IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13. Basis of the Bargain. The limited warranty and disclaimer, exclusive remedies, and damages cap set forth above are fundamental elements of the basis of the agreement between VIVA and the Client. VIVA would only be able to provide the Services to the Client on an economic basis with such limitations. Furthermore, the limitations or exclusions of warranties, remedies, or liability contained in these Terms of Service shall apply only to the extent permissible under applicable law, which may vary from state to state.
14. Force Majeure. If the performance of the Services or any other obligation under the Services Agreement or these Terms of Service is prevented, restricted, or interfered with by causes beyond a party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm, or other similar occurrences, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, and work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such cause of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.
15. Integration and Severability. The Services Agreement and these Terms of Service represent the complete and exclusive agreement between VIVA and Client and supersede all prior communications, whether written or oral, relating to the subject matter hereof. No amendment or modification to the Services Agreement shall be valid or binding upon the parties unless in writing and signed by each party. No course of conduct shall be deemed to constitute an amendment or modification, and no waiver shall be deemed a continuing waiver unless agreed to in writing by the party to be charged therewith. If any provision of the Services Agreement or these Terms of Service is determined by a court of competent jurisdiction to be invalid or incapable of being enforced, such provision shall be excluded to the extent of such invalidity or unenforceability. All other terms hereof and thereof shall remain in full force and effect.
16. Assignment. Neither party may assign or transfer any right or obligation in connection with the Services Agreement without the prior written consent of the other party.
17. Taxes.  Each party shall be responsible for all sales, use, and excise taxes and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by that party.
18. Modifications. These Terms of Service may be amended and updated from time to time at the sole discretion of VIVA. Modified versions of these Terms of Service will be considered effective as of the date and time posted to VIVA’s website. Client’s continued use of the Services after such modifications are posted will signify Client’s continued acceptance of and agreement to be bound by these Terms of Service, as modified.
19. Arbitration. Any controversy or claim arising out of or relating to the Services Agreement or these Terms of Service, or the making, performance, or interpretation thereof, other than a claim by VIVA for injunctive or equitable relief, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall be held in Houston, Texas. Any judgment on the arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy.
20. Legal Disputes. In the event of any legal dispute (including arbitration) regarding the interpretation or enforcement of the Services Agreement or these Terms of Service, the prevailing party in such dispute shall be entitled to recover from the other party its costs and expenses incurred in such dispute, including reasonable attorneys’ fees, court/arbitration costs, and expert witness fees, the amount of which shall be fixed by the court/arbitrator and made a part of any judgment rendered.
21. Communications.  Each party shall deliver all communications in writing either in person, by certified or registered mail, by return receipt requested and postage prepaid, or by recognized overnight courier service and addressed to the other party at the address provided by such party in the Services Agreement (or to such other address that the receiving party may designate from time to time) for such purpose.
22. All Sales Are Final. Viva does not give full or partial refunds for any Fees collected, regardless of the basis for the refund request.