Terms of Service

7. Restrictions and Responsibilities. 

• Compliance With Law. If you are prohibited under applicable law from using the Service or any of the Properties (including Booked Properties), you may not use them. You understand and agree that you are solely responsible for compliance with any and all laws, rules, and regulations that may apply to your use of the Service and/or Properties.
• Use of Amenities. You and your guest(s) may use only the Booked Property amenities (e.g., fitness room and gym equipment) that are described in your reservation confirmation. You agree to comply and ensure all of your guests’ compliance with all of our and the applicable Landlords’ rules with respect to your and your guests’ use of such amenities. You understand and agree that use of such amenities may be suspended if you or any of your guests violate any such rules. You shall be responsible for any damage to such amenities that you or any of your guests cause. ANY USE OF SUCH AMENITIES IS AT YOUR AND YOUR GUESTS’ OWN RISK AND YOU AND YOUR GUESTS RELEASE, DISCHARGE, AND COVENANT NOT TO SUE ANY VIVANT ENTITIES (DEFINED BELOW) IN CONNECTION WITH ANY USE OF SUCH AMENITIES.
• Prohibited Conduct. In connection with your use of the Service and Properties, you may not and you agree that you will not (except and solely to the extent such restriction is impermissible under applicable law):
  1. Use the Service or any Property for any illegal purpose or in violation of any local, state, national, or international law (e.g., you may not use your, our, or a third-party Internet connection or device on any of our Properties to illegally download or share files through BitTorrent, other peer-to-peer protocols, or otherwise);
  2. Impersonate any individual or organization, or falsify or otherwise misrepresent yourself (including your age or date of birth) or your affiliation with any individual or organization;
  3. Register for more than one Vivant account or register for a Vivant account on behalf of an individual other than yourself, except as expressly permitted under a Commercial Agreement between you and us;
  4. Use the Service or any Property for any commercial or other purpose that is not expressly permitted under this Agreement (for the avoidance of doubt, you may not resell or transfer to any other individual or organization any reservation you make through the Service, except as expressly permitted under a Commercial Agreement between you and us), or make false, fraudulent, or speculative reservations);
  5. Reproduce, distribute, publicly display, or publicly perform any aspect of the Service or make modifications to any aspect of the Service or any Property;
  6. Bring into or onto any Property any dangerous or hazardous item (including items that are likely to increase the risk of fire or explosion);
  7. Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Service;
  8. Use, display, mirror, or frame any aspect of the Service (including any layout or design of any webpage or form contained therein), our name, or any of our trademarks, logos, or other proprietary information, without our express written consent;
  9. Copy, store, or otherwise access any information accessible through the Service or any Property for purposes not expressly permitted under this Agreement;
  10. Use manual or automated software, devices, scripts, robots, or other means or processes to access, “scrape,” “crawl,” or “spider” any web pages or other services contained in the Service or to otherwise collect information or interact with the Service;
  11. Systematically retrieve data or other content from the Service to create or compile, directly or indirectly, in one or more downloads, a collection, compilation, database, directory, or the like, whether by manual or automated methods;
  12. Interfere or tamper with, circumvent, damage, or test the vulnerability of any aspect of the Service or Properties (including any physical item therein), whether by manual or automated methods, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing of email address information, or similar methods or technology;
  13. Infringe, misappropriate, or violate the rights of any individual or organization, including their intellectual property rights (including rights to trade secrets and moral rights), or their privacy, publicity, confidentiality, contractual, property, or other rights;
  14. Use the Service or any Property to transmit, distribute, post, or submit any information concerning any other individual or organization without such individual’s or organization’s permission, including photographs, personal contact information, or credit, debit, calling card, or other account numbers;
  15. Engage in any conduct that: (i) would give rise to civil liability; (ii) is fraudulent, false, misleading, or deceptive; (iii) is defamatory, obscene, pornographic, vulgar, or offensive; (iv) promotes or constitutes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group or otherwise threatens or embarrasses any individual or group; (v) is violent or threatening or promotes violence or actions that are threatening to any other individual or organization; (vi) promotes illegal or harmful activities or substances; or (vii) is restricted or prohibited by or under any of our Additional Terms (defined in Section 18.5); or
  16. Attempt to do any of the foregoing or assist or advocate, encourage, permit, or assist any third party in doing any of the foregoing.
• Safety Features. You acknowledge and agree that the Properties may contain certain safety features such as smoke detectors or sound level monitoring units, you consent to our use of these safety features, and you agree not to interfere or tamper with these features (as prohibited under Section 7.3(12)).
• Damaged Property. You are responsible for leaving any Booked Property in the condition it was in when you arrived and for following all related Additional Terms applicable to your stay at a Booked Property. You acknowledge and agree that you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who you invite to, or otherwise provide access to, any Booked Property. If we reasonably believe that you have damaged a Booked Property or damaged or stolen any physical item therein (“Damaged Property”), we will provide you with reasonable notice and evidence of such damage or suspected theft and will give you two business days to respond to our claim. After this time period, we will be automatically entitled to charge the Applicable Payment Method for the full amount of the greater of the costs and fees actually incurred by us or that we reasonably expect to incur for fixing or replacing the Damaged Property (which may include replacing damaged items with equivalent items) (“Damaged Property Fee”). We reserve at all times the right to fix the Damaged Property in the manner of our choosing and to pursue in our sole discretion any and all avenues available to us to collect from you the Damaged Property Fee. For example, we may exercise the foregoing right by fixing the Damaged Property over an extended period of time, charging the Applicable Payment Method the sum total of the Damaged Property Fee up front or in installments, or by making one or more claims under your homeowner’s, renter’s, and/or other insurance policy, and you agree to cooperate with and assist us in good faith, and to provide us with such information as we may reasonably request in order to successfully make such claim.
• Investigation and Prosecution. We reserve at all times the right to investigate and prosecute any breach of any provision of this Agreement to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who breach any provision of this Agreement. You acknowledge that we have no obligation to monitor your access to or use of the Service or Properties but have the right to do so for the purpose of operating the Service, to ensure your compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.

8. Ownership; Proprietary Rights. The Service is owned and operated by us. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by us are protected by intellectual property and other laws. All Materials included in the Service are our and/or our third-party licensors’ property. Except as expressly authorized by us, you may not make use of the Materials. We reserve all rights to the Materials not granted expressly in this Agreement.

9. Third-Party Terms. We may provide tools or features through the Service that enable you to interact with, including export information to, third-party websites or services, including through features that allow you to link your Vivant account with an account on a third-party website or service, such as Twitter, Facebook, or a third-party payment processor, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools or features, you agree that we may transfer such exported information to the applicable third-party website or service. Third-party websites and services are not under our control, and, to the fullest extent permitted by law, we are not responsible for any third-party service’s use of your exported information. You acknowledge and agree that such interactions with third-party websites or services may be governed by one or more third parties’ terms, conditions, and/or policies.

10. User Content.

• User Content Generally. Certain features of the Service may permit users to submit content to the Service, including messages, reviews, ratings, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
• Ratings and Reviews. Within a certain timeframe after completing a reservation, you and other users may provide us with a public review (“Review”) and/or rating (“Rating”) regarding your or such other user’s experience with the Service or at a Booked Property. Reviews and Ratings reflect the opinions of the individual or entity that leaves such Review or Rating, do not reflect our opinion, and may be incorrect or misleading. We may, but are not obliged to, verify any Reviews or Ratings for accuracy. You acknowledge and agree that if you provide a Review or Rating, such Review or Rating must be accurate, may not contain any offensive or defamatory language, may be surfaced anywhere (including publicly) on our Service or a third-party service as permitted by us, and constitute “User Content.”
• Limited License Grant to Us. By providing User Content to or via the Service, you grant us an unrestricted, worldwide, perpetual, irrevocable, non-exclusive, freely transferable and sublicensable (including through multiple tiers), royalty-free, and fully-paid right and license to exploit the User Content, in whole or in part, in any manner (including in any language or any media formats and through any media channels now known or hereafter developed) and for any purpose with no obligation or accounting to you.
• User Content Representations and Warranties. We disclaim any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
  1. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize us and our sublicensees to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 10, in the manner contemplated by us, the Service, and this Agreement;
  2. your User Content, and the use of your User Content as contemplated by this Agreement, does not and will not: (i) infringe, violate, or misappropriate any third party’s right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other individual or organization; or (iii) cause us to violate any law, rule, or regulation; and
  3. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
• User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this Agreement or is otherwise objectionable. You understand that when using the Service you may be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to this Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, we do not permit copyright-infringing activities on the Service.

   

• Monitoring Content. We do not control and do not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that we reserve the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time we choose to monitor the content, we still assume no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (if applicable).

11. Digital Millennium Copyright Act

• DMCA Notification.We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:

Vivant

ATTN: Office of the General Counsel (Copyright Notification)

7301 Altidore Drive, Austin, Texas 78744

Email: [email protected]

Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

1. 1.  an electronic or physical signature of the individual authorized to act on behalf of the owner of the copyright or other right being infringed;
   2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
   3. a description of the material that you claim is infringing and where it is located on the Service;
   4. your address, telephone number, and email address;
   5. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
   6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

• Repeat Infringers. We will promptly disable and/or terminate the accounts of users that we determine to be repeat infringers.

12. Modification of this Agreement. We reserve the right to change this Agreement (including any of the Additional Terms) on a going-forward basis at any time. Please check this Agreement periodically for changes. If a change to this Agreement materially modifies your rights or obligations, we may require that you accept the modified Agreement in order to continue to use the Service or any Properties. Material modifications are effective upon your acceptance of the modified Agreement and we will provide you with reasonable notice prior to such changes taking effect. Please discontinue using the Service and any Property if you do not agree to these changes. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12, this Agreement may be amended only by a written agreement signed by authorized representatives of the parties to this Agreement. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.

13. Term, Termination and Modification of the Service.

1. This Agreement is effective beginning when you accept it or first download, install, or otherwise access or use the Service or Properties, and its term ends when the Agreement is terminated as described in Section 13.2.

    

2. To the maximum extent permitted by applicable law, if you violate any provision of this Agreement, all of our licenses to you and this Agreement automatically terminate without notice to you. In addition, we may, in our sole discretion, terminate this Agreement or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and this Agreement at any time by contacting customer service at [email protected] and requesting that your account be deleted.

    

3. Effect of Termination. Upon termination of this Agreement: (a) all of our licenses to you hereunder automatically terminate and you must immediately cease all use of the Service and Properties; (b) you will no longer be authorized to access your account or the Service or any Properties; (c) you must pay us any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5, 6.3, 7, 8, 10, 13.3, 14, 15, 16, 17, and 18 will survive.

    

4. Modification of the Service. We reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service such as any of our product or Property offerings), temporarily or permanently, without notice to you. We will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.

14. To the fullest extent permitted by law, you are responsible for your use of the Service and Properties, and you will defend and indemnify us and our officers, directors, employees, contractors, consultants, affiliates, subsidiaries, Landlords, and agents (individually a “Vivant Entity” and collectively the “Vivant Entities”) from and against every claim brought by a third party, and any related liability, direct or indirect damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service or Properties; (b) your breach or violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law, rule, or regulation (including those put in place by Landlords from time to time); (c) your infringement, misappropriation, or violation of any third party’s right, including any intellectual property rights (including rights to trade secrets and moral rights), or any privacy, publicity, confidentiality, contractual, property, or other rights; (d) any dispute or issue between you and any third party; or (e) any injury, death, or damages sustained by any individual or entity, or to the property of the same, where such injury, death, or damage is caused by your or any of your guests’, visitors’, or invitees’ acts or omissions. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.

15. Disclaimers; No Warranties

1. THE SERVICE, PROPERTIES, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE AND PROPERTIES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, PROPERTIES, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE AND PROPERTIES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.

    

2. WE DO NOT WARRANT THAT THE SERVICE, PROPERTIES, MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE AND PROPERTIES, OR ANY PORTION OF ANY OF THE FOREGOING WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND WE DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

    

3. WE DO NOT MAKE ANY WARRANTY REGARDING THE QUALITY OF ANY ASPECT OF THE SERVICE, PROPERTIES, OR MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE OR PROPERTIES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF THE FOREGOING.

    

4. YOU UNDERSTAND AND AGREE THAT WE SHALL NOT RESPONSIBLE OR LIABLE FOR THE ACTIONS OF ANY THIRD PARTY OR ANY CONDITION OR CIRCUMSTANCE (E.G., CONSTRUCTION) OUTSIDE A PROPERTY.

    

5. OTHER THAN AS SET OUT IN SECTION 16 BELOW, NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE, PROPERTIES, ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE OR PROPERTIES, OR ANY VIVANT ENTITIES WILL CREATE ANY WARRANTY REGARDING ANY OF THE FOREGOING THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. OTHER THAN AS SET OUT IN SECTION 16 BELOW, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE, PROPERTIES, OR YOUR DEALING WITH ANY OTHER USER OF THE SAME. YOU UNDERSTAND AND AGREE THAT YOU USE ANY ASPECT OF THE SERVICE AND PROPERTIES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR ANY PHYSICAL BELONGINGS USED IN CONNECTION WITH YOUR USE OF THE SERVICE OR PROPERTIES) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.

    

6. WE DO NOT CONTROL ANY FEES THAT MAY BE CHARGED TO YOU BY ANY THIRD PARTY RELATING TO OUR COLLECTION OF ANY FEES THAT YOU OWE US UNDER THIS AGREEMENT, AND WE DISCLAIM ALL LIABILITY IN CONNECTION WITH THE FOREGOING.

    

7. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. WE DO NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT WE ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

    

8. “WE”, AS USED IN THIS SECTION 15, REFERS TO US AS WELL AS THE APPLICABLE LANDLORD(S).

16. Disclaimers; No Warranties

1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ANY VIVANT ENTITY BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, REPUTATION, GOODWILL, INCOME, SALES, REVENUE, BUSINESS, ANTICIPATED SAVINGS, OR DATA, OR FOR BUSINESS INTERRUPTION, WASTED MANAGEMENT OR OFFICE TIME, OR ANY OTHER INTANGIBLE LOSS.

    

2. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ANY VIVANT ENTITY BE LIABLE TO YOU FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, PROPERTIES, OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE OR PROPERTIES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY VIVANT ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

    

3. WE DO NOT EXCLUDE OR LIMIT IN ANY WAY OUR LIABILITY TO YOU WHERE IT WOULD BE UNLAWFUL TO DO SO. IN THE UK AND THE EU, THIS INCLUDES LIABILITY: FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS, OR SUBCONTRACTORS; FOR FRAUD OR FRAUDULENT MISREPRESENTATION; OR FOR BREACH OF OUR OBLIGATION TO PERFORM THE SERVICE WITH REASONABLE CARE AND SKILL OR FAILURE TO PERFORM THE SERVICE IN ACCORDANCE WITH INFORMATION PROVIDED BY US TO YOU ABOUT US OR THE SERVICE.

    

4. EXCEPT AS PROVIDED IN SECTION 17.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE VIVANT ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE, PROPERTIES, OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE OR PROPERTIES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO US FOR ACCESS TO AND USE OF THE SERVICE AND PROPERTIES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100; UNLESS THE UK HOTEL PROPRIETORS’ ACT 1956 APPLIES, IN WHICH CASE OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM PRESCRIBED UNDER THAT ACT.

    

5. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

17. Dispute Resolution and Arbitration

1. Application of this Section 17. This Section 17 shall only apply if your country of residence is outside of the UK and the EU.

    

2. In the interest of resolving disputes between you and Vivant in the most expedient and cost-effective manner, and except as described in Section 17.3, you and Vivant agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND VIVANT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

    

3. Exceptions. Despite the provisions of Section 17.2, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

    

4. Any arbitration between you and Vivant will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Vivant. The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

    

5. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by email (“Notice of Arbitration”). Vivant’s address for Notice is: Vivant., 7301 Altidore Drive, Austin, Texas 78744, Attention: Office of the General Counsel. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Vivant may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Vivant must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Vivant in settlement of the dispute prior to the award, Vivant will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.

    

6. Fees. If you commence arbitration in accordance with this Agreement, Vivant will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in the County of Travis, Texas, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Vivant for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

    

7. No Class Actions. YOU AND VIVANT 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. Further, unless both you and Vivant agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

    

8. Modifications to this Arbitration Provision. If Vivant makes any future change to this arbitration provision, other than a change to Vivant’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Vivant’s address for Notice of Arbitration, in which case your account with Vivant will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

    

9. Enforceability. If Section 17.7 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Sections 18.2 or 18.3, as applicable, will govern any action arising out of or related to this Agreement.