TERMS OF USE
Effective from July 1, 2024
PRÉAMBLE
The Services of Viva Innovation are exclusively reserved for professional use and are not accessible to minors under 18 years old or any legal or natural person not complying with these Terms of Use. In the event of ambiguity and/or contradiction between these Terms of Use and any other document appearing on Viva Innovation's Sites, these Terms of Use shall prevail.
The information provided on the various pages of Viva Innovation's Sites is for informational purposes only and not contractual, and Viva Innovation may modify it at any time without notice. Viva Innovation may change its Terms of Use at any time and without notice. If the Terms of Use remain accessible to Customers via other websites or by any means after their removal from the Site, they shall no longer be enforceable against Viva Innovation.
Please read these terms of use carefully. By accessing or using the site, the services, you declare that you have read and accept, without reservation, the current version of the terms consisting of the following documents, in order of priority:
- These Terms of Use;
- The privacy policy available at this web address: https://www.vivainnovation.com/en/privacy
ARTICLE 1 - DEFINITIONS :
Application: Refers to the service sold to Clients to interact with their audiences or publish their Content on Platforms such as websites, posts, SMS, email, advertisements, etc.
Client: Refers to the internet user registered for Viva Innovation Services, whether free and/or paid, or the internet user registered by a Viva Innovation Partner, thus becoming a non-exclusive licensee of the Services.
Account: Refers to all information from the Client to access and use the Services.
Terms of Use: Refers to these terms and conditions that define the terms under which Viva Innovation provides its Services to Clients and access and use of said Services.
Content: Refers to the texts, images, or videos added by a Client, either manually, through a technical interface, or via Internet distribution in accordance with the Terms of Use.
Host: The company with which Viva Innovation outsources the hosting of Viva Innovation Services and the Clients' Content database.
Registration: Refers to the recording of the Client's contact details for the use of Viva Innovation Services, either paid or free, by the client themselves or by a Viva Innovation Partner client.
Viva Innovation Partners: Refers to a Viva Innovation client who has accepted these Terms of Use and subscribed to a Viva Innovation offer (Agencies, Brands) allowing them to add access for their Clients.
Platform: Refers to the destination on which Content can be published via a Viva Innovation Application, such as the Internet, Facebook®, Instagram®, Google®, TikTok®, WhatsApp®, X®, etc.
Services: Refers to all online services offered to Clients by Viva Innovation.
Sites: Refers to all Viva Innovation websites accessible to Clients to learn about the Services and these Terms of Use.
Suite: Refers to all software made available to Clients and offered by Viva Innovation via Services using Internet technology.
ARTICLE 2 – PURPOSE OF THE SERVICES :
Viva Innovation provides its Clients with access to a Suite operating with Internet technology and accessible through this technology. Therefore, the Client must connect to the Internet and then to a Site on which they have been registered by Viva Innovation or a Viva Innovation Partner client to use the Viva Innovation Suite. The use of the Viva Innovation Suite is possible with certain limitations determined by Viva Innovation or the Viva Innovation Partner client to which they are linked and in all cases after the Client has accepted these Terms of Use.
The Suite may be modified based on improvements or updates made without prior notice to Clients. Viva Innovation reserves the right to discontinue the marketing of the Suite. The Client will be notified by any means and will continue to have access to the Suite for the duration of the period to which they subscribed or the Viva Innovation Partner client subscribed, or will have at least one month's notice before access to the Suite is permanently interrupted. The Client must take all necessary measures to back up their data within this period when possible. The discontinuation of the marketing of a Service by Viva Innovation shall not entitle the Client to any compensation or reparation from Viva Innovation. It is expressly stated that Viva Innovation provides Services but cannot substitute any function of the Client's business.
ARTICLE 3 – ACCEPTANCE OF THE TERMS OF USE :
Registration for the Services by the Client constitutes their express and unconditional acceptance of these Terms of Use, excluding the application of any different or contrary provisions that may appear in commercial documents. This process is equivalent to the Client acknowledging that they have fully understood and approve, without reservation, all the Terms of Use listed below. In these conditions, Viva Innovation invites Clients who have connected to the Viva Innovation Site to read these Terms of Use carefully. The provisions of these Terms of Use apply between Viva Innovation and its Clients regardless of the registration channel.
ARTICLE 4 – REGISTRATION FOR SERVICES :
To access the Services, any Client must be at least 18 years old for exclusive professional use and create, directly or through a third party, an account either by being registered by Viva Innovation or via the Viva Innovation Platform service provided to Viva Innovation Partners' Clients, and by unconditionally accepting the Terms of Use and the privacy policy available at this address: https://www.vivahelix.com/fr-ca/privacy.
After registration, the Client will have an identifier and a password that will allow them to access their account. The Client agrees to keep their identifier and password confidential. They take responsibility for all actions carried out using their identifiers and password. The Client guarantees to provide accurate, complete, and up-to-date information. If the information provided by the Client is false, incomplete, or outdated, Viva Innovation reserves the right, without any compensation and without notice, to suspend or terminate the Client's account, delete all or part of the Client's applications, data, and files, delete access to these sites, pages, files, and data, or prohibit the Client from any or all Viva Innovation Services, without prejudice to common law actions that may be available to them. Viva Innovation reserves the discretionary right to refuse access to its Services to individuals providing information during registration deemed incompatible with the proper organization and management of its Services without compensation.
ARTICLE 5 – ACCESS TO SERVICES :
The Client acknowledges that the techniques employed by Viva Innovation fall within a complex area of computer technology. Viva Innovation's commitment is an obligation of means, limiting service interruptions necessary for maintenance or improvement as much as possible in time and number. Therefore, it is up to the Client to guard against these risks. Viva Innovation cannot be held responsible for damages suffered by the Client due to the unavailability of the Services. Viva Innovation reserves the right to refuse the presence on its servers of files imported by Clients deemed technically non-compliant with the servers or detrimental to their performance. Access to the Services requires a connected device on which the latest or previous version of a recent Internet browser (Mozilla Firefox, Apple Safari, Google Chrome) that accepts cookies is installed. The Client must also have a high-speed Internet connection (a speed of 1 Mbps or higher is recommended).
The Client declares to have understood the characteristics and limitations of the Internet described below:
That data transmissions over the Internet have only relative technical reliability, circulating over heterogeneous networks with varying characteristics and technical capacities. Therefore, no one can guarantee the proper functioning of the Internet.
That data circulating on the Internet is not protected against potential diversions, and thus the communication of passwords, confidential codes, and more generally, any information of a sensitive nature is done by the Client at their own risk.
That it is up to them to take all appropriate measures to protect their own data stored on their servers from contamination by viruses and attempts of intrusion into their computer system by third parties via the access service.
As a result of the above, and with full knowledge of the characteristics of the Internet, the Client waives engaging Viva Innovation's responsibility for one or more of the facts or events mentioned above. The Client is solely responsible for direct or indirect, material or immaterial damages caused by themselves (or their employees) to Viva Innovation or third parties in charge of the Platforms, due to the illegal or improper use of the hosting server. In such cases, the Client agrees to indemnify Viva Innovation in the event of a judgment against the latter for damages (including, but not limited to, legal, attorney, and other costs). Furthermore, the Client agrees to reimburse Viva Innovation for the costs incurred by repairing the damages they caused. Services are provided to the Client as soon as they register for the Services. The Client's access rights to the Services are strictly exclusive and non-transferable.
ARTICLE 6 – CLIENT OBLIGATIONS :
The Client agrees to use Viva Innovation Services in accordance with all the stipulations of these Terms of Use and the applicable laws and legal provisions.
6.1 Content
The Client is responsible for the Content they make available to the public through the Services. For all practical purposes, it is specified that the Client remains the sole publisher of the Content they publish. Viva Innovation cannot in any way be considered the publisher of the Applications and Content created by its Clients using its Services. When distributing Content, the Client agrees to comply with all applicable legal and regulatory provisions, as well as the current terms and conditions of the Platforms on which they publish their Applications and Content. The Client agrees to strictly respect the usage conditions of the Platforms and more broadly to not infringe on the intellectual property rights of the authors of the content of the applications as well as trademarks, software, patents, logos, graphics, photographs, and other animations contained on the concerned Platforms. Viva Innovation cannot be held responsible in case of refusal by a Platform of an Application or Content due to non-compliance of the Content with the Platform's terms. It is the Client's responsibility to read and comply with the Platform's terms. To this end, the Client particularly agrees not to distribute Content, whatever its nature or form:
not to post, say, mime, indicate, or distribute in any form information that may harm, directly or indirectly, any third party (natural person, legal entity, or group of persons);
not to emit, distribute, or relay any speech, statements, and/or any content of defamatory, injurious, obscene, offensive, violent, or inciting any form of violence (physical, verbal, or moral), political, racist, sexist, homophobic, or xenophobic nature and more generally contrary to the laws in force;
not to post, distribute, or relay any content, whether partially or fully, alone, integrated or associated with other content, in violation of the intellectual property rights of their authors and/or rights holders and the personality rights of any third party;
not to post, distribute, or relay any content, whether partially or fully, alone, integrated or associated with other content, in violation of the intellectual property rights of their authors and/or rights holders and the personality rights of any third party;
not to post, distribute, or relay information or content, nor to use technologies that disrupt, probe, scan, test the vulnerability, reduce, and/or prevent the normal circulation of Services such as software, viruses, repeated messages, spam;
not to post, distribute, or relay content created by artificial intelligence without manually modifying it or specifying that it was generated by artificial intelligence;
not to deliberately or involuntarily infringe any local, regional, national, or international legislation or regulation;
to attempt to modify, decompile, disassemble any of the provided services.
The Client also agrees not to create hyperlinks to sites that do not comply with these same principles. Any breach of these obligations constitutes grounds for suspension and termination of the Account. It is the Client's responsibility to make the necessary legal steps regarding the information on contacts received through their created and/or added and/or imported Applications.
6.2 Client Data
The Client guarantees to provide accurate, complete, and up-to-date information. If the information provided by the Client is false, incomplete, or outdated, Viva Innovation reserves the right, without any compensation and without notice, to suspend or terminate the Client's account, delete all or part of the Client's applications, data, and files, delete access to these sites, pages, files, and data, or prohibit the Client from any or all Viva Innovation Services, without prejudice to common law actions that may be available to them.
6.3 Client Email
When registering, the Client provides Viva Innovation with the email address they wish to use for their Registration. This email address constitutes the Client's login and contact email. Viva Innovation communicates with the Client at this address. If the Client wishes to change this email, they must inform Viva Innovation without delay and make the corresponding changes to their Account either online or through customer service. The Client therefore agrees to regularly check messages sent by Viva Innovation to this email address. Any communication made by Viva Innovation to the Client at this email address is deemed to have been received and read by the Client.
6.4 Services
The Client guarantees that the use of the Services complies with applicable laws. The Client is responsible for determining whether the use of the Services complies with the applicable laws of their country for the Services used, and those of the country and jurisdiction where the recipients of the Client's Services are located. Viva Innovation is not responsible if the Client does not comply with the laws they are subject to. Depending on the country or geographic area where the Client is located or where the recipients of the Client's Services are located, the Client must particularly:
Clearly describe how they intend to use the data collected, including data provided by Viva Innovation.
Obtain the recipient's consent to transfer this data to Viva Innovation and its suppliers to perform the Service.
Comply with all data protection, electronic communication, online sales, and privacy laws applicable in the recipient's countries and the Client's country.
Agree to indemnify Viva Innovation for all losses, damages, attorney, and court fees in case of misuse and non-compliance with these conditions.
6.5 Emailing Service
When using the Emailing Service, the Client agrees to follow these rules:
Do not send spam as defined by the Spamhaus website: http://www.spamhaus.org/consumer/definition/ .
Do not use email addresses that are purchased, rented, or otherwise, of natural or legal persons who have not explicitly agreed to receive emails from the Client.
Do not send content that does not comply with Article 6.1 of these Terms of Use.
Do not send emails to a natural or legal person who has unsubscribed from the Client's email sendings without explicitly obtaining a new agreement to receive emails from the Client again.
If the Client does not comply with one or more of these rules, Viva Innovation reserves the right to suspend the Client's account according to Article 11 of these Terms of Use.
6.6 SMSing Service
When using the SMSing Service, the Client agrees to follow these rules:
Do not send spam.
Do not use phone numbers that are purchased, rented, or otherwise, of natural or legal persons who have not explicitly agreed to receive SMS from the Client.
Do not send content that does not comply with Article 6.1 of these Terms of Use.
Do not send SMS to a natural or legal person who has unsubscribed from the Client's SMS sendings without explicitly obtaining a new agreement to receive SMS from the Client again.
6.7 Account Use
The Client is solely responsible for the use of their account and password. Any connection or data transmission made from this account will be deemed to have been made by the Client and under their exclusive responsibility. The Client therefore agrees to immediately alert Viva Innovation in case of fraudulent use of their account. The Client also agrees not to disclose their login information to their Account to others.
If the Client does not comply with one or more of these rules, Viva Innovation reserves the right to suspend the Client's account according to Article 11 of these Terms of Use.
ARTICLE 7 – VIVA INNOVATION'S OBLIGATIONS :
7.1 Service Access
Viva Innovation's obligation is a best-effort obligation. In this context, it undertakes to take all necessary care and diligence to provide a quality service in accordance with industry standards. Viva Innovation will strive to offer access 24 hours a day, every day of the year except in cases of force majeure, as defined in the article entitled "Force Majeure" below, in case of failures due to the Host, necessary maintenance interventions for the proper functioning of the Services and equipment. Viva Innovation will make every effort to provide sufficient access quality to keep up with the evolution of its Clients' service traffic. In case of too rapid load increase, Viva Innovation may be dependent on delivery times from hardware manufacturers or installation of Internet lines or writing new software or its Host. The Client acknowledges that the Suites used fall within a particularly complex area of computer technology and that, in the current state of knowledge, they cannot materially be tested or experienced covering all possible uses. The Client therefore accepts to bear the risks of imperfections or unavailability of the Services without this constituting a tolerance towards Viva Innovation.
7.2 Service Interruption for Maintenance and Improvements
Viva Innovation cannot guarantee that the site will operate continuously and without errors, nor that access to the Services will be guaranteed, particularly in the following cases:
improper use of the Site due to inappropriate equipment;
malfunctions attributable to your Internet service provider;
Internet network congestion.
7.2.1 Interruption for Minor Updates
Service interruptions for updating the Suite and database structures may occur daily. This type of update only causes a few minutes of service interruption at most.
7.2.2 Interruption for Major Updates
Service interruptions for major updates (e.g., installation of new software, implementation of a new version including significant database changes, etc.) may cause service interruptions from 10 PM to 6 AM.
7.2.3 Emergency Interruption
In case of absolute necessity, Viva Innovation reserves the right to interrupt the Services for technical maintenance or improvement interventions to ensure the proper functioning of its Services at any time and for any duration. Service interruptions will not entitle Clients to any compensation.
7.3 Other Obligations
Viva Innovation reserves the right to change the Services offered at any time and without notice.
Reports on the use of Applications are provided for informational purposes. The service reports data provided by Technical Third Parties installed on the Applications for performance tracking. In this context, Viva Innovation cannot be held responsible for erroneous data. If the Client uses an integrated Third-Party tool in their Viva Innovation Applications, Viva Innovation cannot be held responsible for its availability and functioning, as it is not the publisher of the solution.
If a Platform decides to modify or stop its service, Viva Innovation cannot be held responsible for its availability and functioning at the level of its Services.
ARTICLE 8 – INTELLECTUAL PROPERTY :
Viva Innovation, with the exception of the intellectual property elements related to the Applications and Platforms (trademarks, software, patents, designs and models, copyrights), is the sole owner of the intellectual property rights related to trademarks, patents, software, logos, graphics, photographs, and animations contained in the Services. They cannot be reproduced without the express authorization of Viva Innovation and/or its partners. Viva Innovation grants you a non-exclusive license strictly limited to access, download, print, reproduce on all media, and use for your private and personal use, as part of and for the duration of your subscription to the Services. By submitting content, of any nature, to Viva Innovation, you grant it a free license to use, for the purpose of distributing these contents to Platforms or more generally for the use of Services. Thus, you authorize Viva Innovation to reproduce, represent, translate, digitize, use for advertising purposes, commercial or otherwise, all the content and information you have provided. You also authorize Viva Innovation to grant all these rights to any third parties or partners, to exercise them within the limits of these Terms of Use. You further authorize Viva Innovation to modify said content, to adapt it to the graphical charter of the Services or Platforms.
ARTICLE 9 : PRIVACY POLICY :
Your personal data is processed in accordance with our Privacy Policy available at this internet address: https://www.vivainnovation.com/en/privacy
ARTICLE 10 – VIVA INNOVATION'S WARRANTIES AND RESPONSIBILITIES :
10.1 Warranties
Viva Innovation provides no express, implied, statutory, or other warranties on the performance or results of the information it disseminates or the Services it offers. The information disseminated by Viva Innovation does not constitute advice. Viva Innovation Services are deemed to be made available to Clients "as is" without specific adaptation measures. They are similar to standard software packages that cannot meet all Clients' specific needs. Therefore, it is the Client's responsibility to verify the adequacy of the Services offered by Viva Innovation with their needs and to take all necessary precautions.
10.2 Responsibilities
In case of violation of any obligations provided in these Terms of Use, Viva Innovation may block access to the Client's Account. Viva Innovation may also take legal action against them. In case of claims, complaints, or legal proceedings due to the Client's actions directly or indirectly violating these Terms of Use, Viva Innovation may seek redress from the Client who caused them.
In any case, Viva Innovation is not responsible for the content published on Applications and Platforms, and the use of the Services by its Clients. Viva Innovation's responsibility cannot be engaged under these Terms in case of malfunction, interruption, insufficiency of the Service, or damage related to the Client's equipment or the use of the Internet network (slowdowns, data loss, viruses, intrusions, etc.). Hyperlinks on the Site may direct the Client to partner sites. Viva Innovation's responsibility cannot be engaged if the content of these sites violates the legal and/or regulatory provisions in force. Viva Innovation therefore does not cover direct or indirect, material or immaterial damages caused by the use of any of its Services. It is up to the Client to take out insurance covering this type of risk or be their own insurer. Viva Innovation Clients and Users waive all claims against Viva Innovation, its suppliers, licensors, and partners. Viva Innovation, its suppliers, partners, and licensors will not be liable for direct, special, consequential, punitive damages (including, without limitation, loss of profits or data) or indirect damages arising out of or in connection with these Terms of Use, the Services and/or Applications, whether based on a claim or action in contract, warranty, negligence, strict liability, tort, breach of any legal obligation, indemnity or contribution or otherwise, even if the possibility of such damages. The exclusion provided in this article applies regardless of the failure of any remedy. Viva Innovation's cumulative liability for any loss and/or damage resulting from any claim, demands, or actions arising out of or related to these Terms of Use, the service and/or applications must not exceed the total fees paid by the Client to Viva Innovation for the period at the date of the claim.
ARTICLE 11 – SUSPENSION OF ACCESS :
Viva Innovation reserves the right, in case of non-compliance with any clause in these Terms of Use, to suspend access to its Services.
ARTICLE 12 – MISCELLANEOUS :
12.1 Customer Service
For any information or complaint regarding the Services provided by Viva Innovation, our customer service is at your disposal:
- by phone during business hours
- by email at: support@vivainnovation.com
12.2 Force Majeure
Viva Innovation's liability will be entirely relieved if the non-performance of one or more or all of its obligations under these Terms of Use results from a case of force majeure. For the application of these Terms of Use, force majeure is defined as an unpredictable and/or unavoidable event beyond Viva Innovation's control, such as a Host failure. If the performance of any obligation incumbent upon Viva Innovation under these Terms of Use is prevented, limited, or disturbed due to a case of force majeure, Viva Innovation will then be exempt from performing the contractual obligations considered. In this case, Viva Innovation may request the termination of the Account without being required to pay any compensation.
12.3 Subcontracting
Viva Innovation reserves the right to subcontract freely all or part of the Services and/or benefits that it is responsible for under these Terms of Use.
12.4 Applicable Law and Dispute Resolution
These Terms of Use are exclusively governed by Canadian law, and exclusive territorial jurisdiction is granted to Canadian courts. The Client expressly acknowledges the evidentiary value of electronic writing as used on the site and acknowledges that data recorded by Viva Innovation is proof and constitutes evidence of all transactions made. In case of a dispute arising within the scope of the Services, the Client may, before any legal action, seek an amicable solution, with the help of a consumer association or any other advisor of their choice.