Vivian Health Terms of UseLast revised on: June 12 2024
Welcome to Vivian Health! We provide an online platform to help healthcare professionals find jobs from health facilities and agencies.
1. Acceptance of Terms
These Terms of Use (these “Terms”) are entered in by and between you and Vivian Health, Inc. (“Vivian”, “us”, “our”, and “we”). These Terms set forth the legally binding terms and conditions that govern your use of the website located at www.vivian.com, the Vivian Health mobile application and associated content, communications, and services (the “Vivian Platform”). By accessing or using the Vivian Platform, and by creating a healthcare professional account, you are accepting these Terms, and you represent and warrant that you have the right, authority, and capacity to enter into these Terms.
If you are accessing the Vivian Platform as a recruiter on behalf of a health provider or a staffing or recruiting agency, your access to and use of the Vivian Platform and our processing of your personal information is governed by a written agreement between Vivian and the health provider or agency.
Please read these Terms carefully. You may not access or use the Vivian Platform or accept the Terms if you are not at least 18 years old. If you do not agree with all of the provisions of these Terms, do not access and/or use the Vivian Platform. Certain features of the Vivian Platform or loyalty programs, such as the VIP Program, may be subject to additional guidelines, terms, or rules, which will be posted on the Vivian Platform in connection with such features or programs. All such guidelines, terms, or rules are hereby incorporated by reference into these Terms.
Our collection and use of all personal information via the Vivian Platform is governed by our Privacy Policy. By using the Vivian Platform, you consent to Vivian’s collection, use and sharing of your information as provided in our Privacy Policy.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE, AND LIMIT OUR LIABILITY.
2. Modification of Terms
Vivian may, in its sole discretion, modify these Terms at any time effective upon posting the modified Terms on the Vivian Platform, with or without additional notice to you. You are responsible for regularly reviewing information posted on the Vivian Platform to obtain timely notice of such changes. If you do not agree to the amended terms, you agree to immediately stop using the Vivian Platform and to provide Vivian notice to remove you from any distribution or communication lists that are available to you through your use of the Vivian Platform. YOUR CONTINUED USE OF THE VIVIAN PLATFORM AFTER POSTING OF UPDATED TERMS (OR OTHER NOTIFICATION, IF ANY) MEANS YOU ACCEPT AND AGREE TO BE BOUND BY THE MODIFIED TERMS OF USE.
3. Accounts
3.1 Account Creation. In order to use certain features of the Vivian Platform (e.g., to apply for a job), you must create a healthcare professional account (“Account”) and provide certain information about yourself as prompted in the account registration form. If you are creating an Account: (1) You must register your Account in your own legal name; (2) you must be permitted to legally work within the United States and (3) you must provide Vivian with true, accurate, current and complete information as prompted by the registration forms, and update and maintain the truthfulness, accuracy and completeness of such information for as long as your Account is valid. You may delete your Account at any time, for any reason, by following the instructions on the Vivian Platform. Vivian may suspend or terminate your Account (See Section 6 below).
3.2 Account Responsibilities. You are fully responsible for all activities that occur under your Account. You are also responsible for maintaining the confidentiality of your Account login information. Make sure you keep your login information in a safe place and don't share it with anyone. You agree to immediately notify Vivian of any unauthorized use, or suspected unauthorized use of your Account or any other breach of Account security. Vivian cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
4. Access to and Use of the Vivian Platform
4.1 License. Subject to these Terms, Vivian grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Vivian Platform solely for your own personal, noncommercial use.
4.2 Restrictions. The rights granted to you in these Terms, and your use of the Vivian Platform, are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Vivian Platform, whether in whole or in part, or any content displayed on or accessible through the Vivian Platform; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Vivian Platform; (c) you shall not access or use the Vivian Platform for benchmarking or competitive research purposes or for the purpose of developing a similar or competitive website, product, or service; (d) except as expressly stated herein, no part of the Vivian Platform may be copied, reproduced, harvested, scraped, crawled, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Vivian Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file). Unless otherwise indicated, any future release, update, or other addition to functionality of the Vivian Platform shall be subject to these Terms; you shall not use software or automated agents or scripts to produce multiple accounts on the Vivian Platform, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Vivian Platform. All copyright and other proprietary notices on the Vivian Platform (or on any content displayed on the Vivian Platform) must be retained on all copies thereof.
4.3 No Promise of Support, Maintenance, or Back-up. You acknowledge and agree that Vivian will have no obligation to provide you with any support or maintenance in connection with your use of the Vivian Platform. Do not use Vivian as your only place of storage or back up of your professional information. Vivian is not obligated to backup any Account or profile information, and such content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your professional information.
4.5 Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Vivian Platform and its content are owned by Vivian or Vivian’s licensors, suppliers, customers or partners. Neither these Terms (nor your access to the Vivian Platform) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access and use rights expressly set forth in these Terms. There are no implied licenses granted under these Terms. All trademarks, logos and service marks displayed on the Vivian Platform are our property or the property of other third parties. You are not permitted to use these marks without our prior written consent or the consent of such third party which may own the marks.
5. User Content
5.1 User Content. “User Content” means any and all information and content that a user submits to the Vivian Platform or shares with anyone via the Vivian Platform (e.g., content in your professional profile, or messages to recruiters). You are solely responsible for your User Content and you represent and warrant its accuracy and truthfulness. You assume all risks associated with your User Content, including any reliance by others, such as recruiters, on its accuracy, completeness or usefulness. You are also responsible for your sharing with recruiters of User Content that personally identifies you or any third party, such as your professional references. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (see below). You may not represent or imply to others that your User Content is in any way created, sponsored or endorsed by Vivian.
5.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Vivian an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, including modifying, analyzing, parsing, categorizing, and otherwise using and exploiting your User Content, to deliver and improve on Vivian’s services to healthcare professionals, recruiters, and employers. You also authorize Vivian to use your User Content to create de-identified aggregate data sets that may be made publicly available. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
If you provide Vivian with any feedback or suggestions regarding the Vivian Platform, you agree that Vivian shall have the right to use and fully exploit such feedback as User Content. Vivian will treat any feedback you provide to Vivian as non-confidential and non-proprietary. You agree that you will not submit to Vivian any information or ideas that you consider to be confidential or proprietary.
5.3 Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
(a) You may not, and your User Content may not (i) violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) be unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, or patently offensive; (iii) promote racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iv) be harmful to minors in any way; or (v) violate of any law, regulation, obligations, or restrictions imposed by any third party.
(b) In any use of the Vivian Platform, and in any interaction with recruiters, other healthcare professionals or Vivian staff, you may not: (i) upload, transmit, or distribute to or through the Vivian Platform any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Vivian Platform unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Vivian Platform to scrape, harvest, collect, gather or assemble information, content or data including job listings or candidate profiles with automated means, or (iv) interfere with, disrupt, create a security risk on or undue burden on, servers or networks connected to the Vivian Platform, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Vivian Platform (or to other computer systems or networks connected to or used together with the Vivian Platform), whether through password mining, providing false Account information, IP blocker or login requirement circumvention, disregarding our robots.txt file or any other means; (vi) intercept any communication between users of the Platform or between users and recruiters, or (v) interfere with any other user’s use and enjoyment of the Vivian Platform, including by burdening the Vivian Platform servers due to high volume traffic or server calls.
5.4 Export Restrictions. The Vivian Platform may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Vivian, or any products utilizing such data, in violation of the United States export laws or regulations.
5.5 Enforcement. We reserve the right (but have no obligation) to review any User Content or interaction with candidates, recruiters or employer, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise harm or create any risk for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 6 below, and/or reporting you to law enforcement authorities.
6. Termination
Vivian reserves the right, in its sole discretion, and with or without notice to you, to immediately terminate your access to all or part of the Vivian Platform, to remove your profile, and/or any User Content posted by or about you, and/or to terminate your Account if: (i) Vivian determines that you are not eligible to use the Vivian Platform, you have mis-used or mis-appropriated the Vivian Platform, (ii) you have violated the Terms, (iii) you are not suitable for participation as a healthcare professional, or (iv) your Account has been inactive for more than 12 months. Upon any termination of your Account, Vivian shall be under no obligation to provide you with a copy of any Account information or User Content posted by or about you on the Vivian Platform. If we terminate your Account, we have no obligation to notify you of the reason, if any, for your termination. Vivian will not have any liability whatsoever to you for any termination of your Account or deletion of your User Content. Vivian’s right to terminate an Account shall be in addition to and not in substitution of any other rights and remedies available to Vivian under applicable law or these Terms.
Vivian reserves the right, at any time, to modify, suspend, or discontinue the Vivian Platform of certain of its features with or without notice to you. You agree that Vivian will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Vivian Platform or any part thereof.
All provisions of these Terms which by their nature should survive termination shall survive the termination of your access to and use of the Vivian Platform, including, without limitation, provision regarding ownership, warranty disclaimers, indemnity, and limitations of liability.
7. Electronic Communications and Communication Services
7.1 Electronic Contracting. By using the Vivian platform, you agree to allow Vivian to communicate with you electronically, and you consent to electronic delivery of legal notices, documents, or products (including, without limitation, communications with respect to available jobs or positions to which you have applied) from Vivian or recruiters via the Vivian Platform, including, the Vivian mobile application, online messaging platform, or email. You also agree to check your Vivian account, alerts, and messages, and your email reflected on your Account on a reasonably regular basis to stay apprised of important notices and information about your Account and our Services.
7.2 Communications Services. By using Vivian services, you expressly consent and agree to accept and receive communications from us, our affiliates and/or our third party vendors, as well as from recruiters, including via text (SMS) messages, calls, push notifications and other reasonable means at any of your contact numbers, email addresses or physical addresses including marketing related communications. By consenting to being contacted by Vivian, its affiliates or third party vendors, and by recruiters, you understand and agree that you may receive communications, including marketing communications generated by automatic telephone dialing systems and technology, and/or which will deliver pre-recorded messages, sent by or on behalf of Vivian and its customers. We may also use short codes to send you recurring promotional text and/or voice messages. Additional terms of service applicable to short codes is available here and is hereby incorporated in these Terms by reference.
(a) You confirm that you are the subscriber to the phone number you provide to Vivian or that you are the customary user of that number on a family or business plan and that you are authorized to opt-in and provide consent to Vivian for receiving communications to such number as required under applicable law.
(b) You acknowledge that you are not required to consent to receive promotional messages or communications from us as a condition of using the Vivian Platform or services. If a contact number you have provided to us is no longer your number, you agree to notify us promptly that you can no longer be reached at that number. You agree that all consents provided in this Section will survive termination of your Account.
(c) You may opt-out of receiving promotional or marketing texts from a specific employer or agency by replying with the word "STOP" to a text message from us about an offer from that employer or agency. You may opt-out of receiving text messages about the Vivian service by replying with the word "STOP"; however you acknowledge that opting out of receiving all texts may impact your use of the Vivian Platform and associated services. You can unsubscribe from confirmation and other transactional messages as well as messages about jobs and opportunities that we think might interest you at any time by contacting us at [email protected]. Your opt-out request may generate a confirmation text.
(d) Standard text messaging and data charges applied by your cell phone carrier will apply to text messages we send. You are solely responsible for all message and data charges that you incur. Please contact your mobile service provider about such charges. Once you create your Account, the frequency of text alerts we send to you will vary. For questions about text alerts, text the word “HELP” to the text message from us or contact us at [email protected].
8. Reliance on User Content, Job Listings and Third Party Content
8.1 User Content. Each Vivian Platform user is solely responsible for any and all of its own User Content. Because we do not control or review User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others and any reliance you place on such User Content is at your own risk. We make no guarantees regarding the accuracy, currency, suitability, completeness, or quality of any User Content or any statement made by a healthcare professional to a potential employer or recruiter. Your interactions with other Vivian Platform users are solely between you and such users. For example, this means that Vivian is not responsible for the healthcare professional profiles and other information provided by those seeking jobs (which is the sole responsibility of the user posting the profile information). You agree that Vivian will not be responsible for any harm, loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Vivian Platform user, we are under no obligation to become involved.
8.2 Job Listings and Recruiter Interactions. Job listings appearing in response to a job search query generally appear in the order of relevance based on the job criteria selected by a user. However, job listing results may include job listings for which Vivian is compensated by employers or agencies to increase their ranking. Vivian ranks job listings based on a combination of relevance to the job criteria selected by the user and the type and amount of compensation paid to Vivian by employers or agencies.
Vivian does not control, review or vet job listings posted by employers and recruiting or staffing agencies for accuracy, legality or currency. All job listings are the sole responsibility of the employer, agency, or other third party posting the open positions on behalf of an employer. Vivian does not assume and expressly disclaims any responsibility for the legality, accuracy or reliability of any job listing, and any information given or statements made by or on behalf of employers and agencies on or through the Vivian Platform, including any misstatements or misrepresentations about a job or position.
Your participation in a recruiting process with any employer or agency (which includes health systems, staffing agencies, and recruiting agencies) via the Vivan Platform, and any dealings and interactions with such employer or agency, are between you and such employer or agency exclusively and do not involve Vivian. You are responsible for making your own investigation and obtaining all information that you deem necessary or appropriate before applying for a job, participating in recruiting activities, or accepting a job offer from an employer or agency.
Vivian however enables and encourages you to report any job listing that is inaccurate, incorrect, or non-compliant, or any recruiter that displays non-professional behavior. This can be done directly within the Vivian platform by clicking the “Report” button available from within the Conversations tab.
8.3 Links to Third-Party Sites and Services. Links from the Vivian Platform to external sites and services and associated third-party content (such as registered nursing license verification services) do not constitute an endorsement by Vivian of such sites, services or content, and are solely for users’ reference and convenience. Vivian does not control third-party sites, services or content, is not responsible for them, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them. Such sites, services and content are governed by their respective owners’ terms of use and privacy policies, and not these Terms nor Vivian’s Privacy Policy. Vivian expressly disclaims any liability derived from the use and/or viewing of links that may appear on the Vivian Platform.
9. Copyright Policy.
Vivian respects the intellectual property of others and requires that users of the Vivian Platform do the same. We have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials. If you believe that one of our users is, through content posted on the Vivian Platform, unlawfully infringing you copyright(s), and wish to have the allegedly infringing material removed, please provide to our designated Copyright Agent the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)):
A. your physical or electronic signature;
B. identification of the copyrighted work(s) that you claim to have been infringed;
C. identification of the material on the Vivian Platform that you claim is infringing and that you request us to remove;
D. sufficient information to permit us to locate such material on the Vivian Platform;
E. your address, telephone number, and e-mail address;
F. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
G. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Vivian is: Vivian Health, Inc.Designated Agent: Copyright ManagerAddress of Agent: 150 Spear Street, Suite 725, San Francisco, CA 94105Telephone: +1-415-326-7559Email: [email protected]
10. Disclaimers
THE VIVIAN PLATFORM IS PROVIDED ON AN ‘AS IS, AS AVAILABLE’ BASIS WITHOUT WARRANTY OF ANY KIND AND ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE SPECIFICALLY DISCLAIMED. YOU ACCESS TO AND USE OF THE VIVIAN PLATFORM AT YOUR OWN RISK. NEITHER VIVIAN NOR ITS DIRECTORS, OFFICERS, AFFILIATES, AGENTS, EMPLOYEES, ASSIGNS OR LICENSORS SHALL BE LIABLE FOR ANY LOSS RESULTING FROM USE OR UNAVAILABILITY OF INFORMATION OR CONTENT ON OR IN CONNECTION WITH THE VIVIAN PLATFORM. THIS DISCLAIMER IS APPLICABLE TO ANY DAMAGE OR INJURY RESULTING FROM NEGLIGENCE OR OMISSION OF VIVIAN, COMPUTER VIRUS OR OTHER SIMILAR ITEM, TELECOMMUNICATIONS ERRORS, OR UNAUTHORIZED ACCESS TO, OR USE OF USER INFORMATION THROUGH THEFT OR ANY OTHER MEANS. WE ARE NOT LIABLE FOR CRIMINAL, TORTUOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF THIRD PARTIES THAT AFFECT THE VIVIAN PLATFORM. IN NO EVENT WILL VIVIAN OR ANY OF ITS DIRECTORS, OFFICERS, AFFILIATES, AGENTS, EMPLOYEES, ASSIGNS OR LICENSORS BE HELD LIABLE FOR ANY TORTUOUS OR ILLEGAL CONDUCT OF OTHER USERS. IN NO EVENT WILL VIVIAN OR ANY OF ITS DIRECTORS, OFFICERS, AFFILIATES, AGENTS, EMPLOYEES, ASSIGNS OR LICENSORS BE HELD LIABLE FOR ANY DAMAGE TO EQUIPMENT, HARDWARE OR OTHER PROPERTY OF USER OR PERSONAL INJURY THAT ARISES IN CONNECTION WITH USE OF THE VIVIAN PLATFORM.
ANY MATERIAL ACCESSED, DOWNLOADED, OR OTHERWISE OBTAINED THROUGH THE USE OF THE VIVIAN PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM VIVIAN OR THROUGH OR FROM THE VIVIAN PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE TERMS, VIVIAN DOES NOT REPRESENT OR WARRANT THAT (I) THE VIVIAN PLATFORM WILL MEET YOUR REQUIREMENTS, (II) THE VIVIAN PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE VIVIAN PLATFORM WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE VIVIAN PLATFORM WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE POWERING THE VIVIAN PLATFORM WILL BE CORRECTED. YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE ACCESS TO THE VIVIAN PLATFORM FOR INDEFINITE PERIODS OF TIME, OR DISCONTINUE THE VIVIAN PLATFORM AT ANY TIME, WITHOUT NOTICE TO YOU.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, VIVIAN’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
VIVIAN SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE VIVIAN PLATFORM, AND YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK. VIVIAN HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
11. Indemnification. You agree to indemnify, defend and hold harmless Vivian, its officers, directors, shareholder, employees, agents, successors, and assigns from and against all losses, liabilities, expenses, damages, claims, demands and costs, including reasonable attorneys’ fees and court costs due to or arising from: (a) any violation of these Terms by you; (b) the inaccurate or untruthful User Content or other information provided by you to Vivian or that you submit, transmit or otherwise make available through the Vivian Platform; or (c) any intentional or willful violation of any rights of another or harm you may have caused to another. Vivian reserves the right to have sole control of the defense of any such damage or claim.
12. Limitation on Liability; Limitation on Time to File Claims
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL VIVIAN OR ITS DIRECTORS, OFFICERS, AFFILIATES, AGENTS, EMPLOYEES, ASSIGNS OR LICENSORS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE VIVIAN PLATFORM, EVEN IF VIVIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN (INCLUDING WITH RESPECT TO ANY ARBITRATION AWARD TO YOU), OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS OR THE VIVIAN PLATFORM (INCLUDING ITS CONTENT AND ANY SERVICES OBTAINED THROUGH THE VIVIAN PLATFORM), FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF: (A) THE FEES WE HAVE EARNED FROM POSITIONS YOU HAVE ACCEPTED THROUGH THE SITE DURING THE 12 MONTH PERIOD PRECEEDING YOUR CLAIM OR (B) FIFTY US DOLLARS (U.S. $50.00). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE VIVIAN PLATFORM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
13 Governing Law and Jurisdiction
These Terms, and all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort, or otherwise, shall be governed by the laws of the State of California, including California's statutes of limitations governing your claim, without giving effect to its principles of conflicts of law, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of Section 14, the Class Action Waiver and Arbitration Agreement.
Unless you and we agree otherwise, in the event that the Class Action Waiver and Arbitration Agreement is found not to apply to you or to a particular claim or dispute, or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Vivian must be resolved exclusively by a state or federal court located in the State of California. You and Vivian agree to submit to the personal jurisdiction of the courts located within the State of California for the purpose of litigating all such claims or disputes.
14. Class Action Waiver and Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. YOU WILL NOT HAVE THE RIGHT TO HAVE YOUR CLAIMS HEARD BY A JURY.
ANY ARBITRATION AWARD PURSUANT TO THIS PROVISION IS FINAL AND BINDING AND SUBJECT ONLY TO LIMITED REVIEW BY A COURT INCLUDING LIMITED RIGHTS TO APPEAL THE ARBITRATION AWARD.
14.1 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND Vivian AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION, ACTION OR PROCEEDING. UNLESS BOTH YOU AND Vivian EXPRESSLY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AGAINST Vivian AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED DOES NOT ENTITLE OTHER Vivian USERS TO SIMILAR RELIEF. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision in these Terms shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
14.2 Agreement to Arbitrate
This Section 14 is referred to in these Terms as the “Arbitration Agreement”. By using the Vivian Platform, you agree that all claims relating to or arising out of the Vivian Platform or these Terms or the breach thereof, whether sounding in contract, tort, or otherwise that have arisen or may arise between you and Vivian or its parent company and affiliates, shall be resolved exclusively through final and binding arbitration in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
14.3 Pre-Arbitration Dispute Resolution
Vivian is always interested in resolving disputes amicably and efficiently. You and Vivian agree that good faith informal efforts to resolve claims and disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Vivian therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), you and Vivian will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any claim or dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. The party initiating a Dispute must give written notice to the other party of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), and the Informal Dispute Resolution Conference shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Vivian that you intend to initiate an Informal Dispute Resolution Conference should be sent by mail to
100 Pine Street, Suite 1250, PMB A140, San Francisco, CA 94111. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address ; (2) the name, telephone number, mailing address and e‐mail address of counsel, if any; and (3) a detailed description of your claim together with substantiation of the facts on which you base your claim.
In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s claim. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
14.4 Arbitration Procedures
If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of the Notice, you and Vivian agree that the claim or dispute shall be finally resolved through binding arbitration (subject to the Small Claims exception set forth in Section 14.8 below). Arbitration will be conducted by a neutral arbitrator in accordance with the rules of JAMS that are in effect at the time the arbitration is initiated (collectively referred to as the “JAMS Rules”), as modified by this Arbitration Agreement, and excluding the JAMS Class Action Procedures. For information on JAMS, please visit its website available at https://www.jamsadr.com/. Information about JAMS’s Rules and fees for consumer disputes can be found at the JAMS consumer arbitration page available at https://www.jamsadr.com/rules-comprehensive-arbitration/. If there is any inconsistency between the JAMS Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms, including without limitation, the limitation of liability provisions in Section 12 of these Terms.
If your claim has not been resolved through the Dispute Resolution Conference, you may commence an arbitration against Vivian by writing a demand for arbitration that includes: (1) the name, telephone number, mailing address, and e‐mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. You can find a sample Demand for Arbitration at www.jamsadr.com. You should send three copies of the Demand, plus the appropriate filing fee, to JAMS at Two Embarcadero Center, Suite 1500, San Francisco, CA 94111, and send one copy to Vivian Health, Inc., Attn: Legal Department, 100 Pine Street, Suite 1250, PMB A140, San Francisco, CA 94111. For more information, see the JAMS arbitration rules and forms, https://www.jamsadr.com/rules-download/. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive your arbitration claim, we may assert any counterclaims we may have against you.
The arbitration shall be held in San Francisco or at another mutually agreed location. If the value of the relief sought is $10,000 or less you or Vivian may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Vivian subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Vivian, unless the arbitrator requires otherwise.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort, or otherwise and all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users of the Vivian Platform.
The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from JAMS’ roster of arbitrators with experience in consumer and/or internet industry disputes. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Demand, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process is triggered, JAMS will appoint the arbitrator for each batch.
14.5 Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Agreement to Arbitrate. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Vivian for all fees associated with the arbitration paid by Vivian.
14.6 Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
14.7 Limited Rights to Appeal
Once the arbitrator has rendered their award, it is binding on the parties and it is not possible to appeal an arbitration award to a court on the usual appellate grounds under federal or state laws. Under JAMS Rules, there are only very narrow grounds on which parties may appeal an arbitration award.
14.8 Exception for Small Claims
Notwithstanding this Arbitration Agreement, you and Vivian agree that any claim which falls within the limit for small claims court in your jurisdiction shall be brought to the small claims court of competent jurisdiction in the state where you reside. This exception does not apply to any appeals from small claims courts or any efforts to enforce an arbitration award, which are subject to the arbitration agreement outlined above.
14.9 California Resident Complaints
If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
14.10 Future Changes to this Arbitration Agreement
Notwithstanding any provision in these Terms to the contrary, you and Vivian agree that if Vivian makes any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, such change shall not be effective until at least 60 days from the date of posting, and shall not apply to any claim that was filed in a legal proceeding against Vivian prior to the effective date of the change. Moreover, if we seek to terminate this Arbitration Agreement from these Terms, such termination shall not be effective until 30 days after the publication of the version of these Terms removing the Arbitration Agreement on the Site, and shall not be effective as to any claim that was filed in a legal proceeding against Vivian prior to the effective date of removal.
15. Entire Terms
These Terms constitute the entire agreement between you and us regarding the use of the Vivian Platform. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Vivian is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Vivian’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Vivian may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
17 Contact Information:
You may contact us at anytime regarding these Terms or our Platform and services via mail, telephone or email at the following contact information:
Address: 100 Pine Street, Suite 1250, PMB A140, San Francisco, CA 94111Telephone: +1-415-326-7559Email: [email protected]