Viably Terms of Service

Last updated: January 21, 2025
You can see previous Terms here
The substantive changes from the previous Terms relate to (i) the Cary chatbot; (ii) use of Third Party Terms; (iii) Communications; (iv) Modification of Terms; (v) Arbitration; and (vi) Shopify.

Welcome, and thank you for your interest in Viably Capital Inc. (“Viably,” “we,” or “us”) and our website at www.runviably.com, along with our related websites, Cary chatbot, hosted applications, mobile or other downloadable applications, and the other products and services we provide (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Viably regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING VIABLY’S PRIVACY POLICY https://www.runviably.com/privacy-policy/ (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND VIABLY’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY VIABLY AND BY YOU TO BE BOUND BY THESE TERMS.

YOU AGREE TO RECEIVE TEXTS FROM OR ON BEHALF OF VIABLY AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS WILL INCLUDE TWO-FACTOR AUTHENTICATION FOR VERIFYING YOUR ACCOUNT. YOU UNDERSTAND AND AGREE THAT THESE TEXTS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.

THESE TERMS OF USE CONTAIN A CLASS ACTION WAIVER, JURY TRIAL WAIVER, A CONTRACTUAL LIMITATIONS PERIOD, AND A BINDING ARBITRATION PROVISION. PLEASE SEE THE ARBITRATION AGREEMENT SECTION FOR ADDITIONAL DETAILS AND REVIEW CAREFULLY. BY ACCEPTING THESE TERMS, YOU ARE BOUND BY THESE PROVISIONS.

1. Viably Service Overview.

1. General. Viably is an all-in-one value-added services platform made for small businesses that links a user’s banking, funding, finances and commercial (including sales) activity to provide services including, but not limited to, cash forecasts, collections updates, banking resources, funding matching, profitability tools and customer activity trends. Viably tracks the health of your business through an integrated financial operating system.
2. Cary Chatbot
   1. Viably’s Cary chatbot found on our website provides customer support and account management services by issuing responses (including in certain circumstances, artificial intelligence (AI) responses to your support and services inquiries) (“Cary”). Cary is based on proprietary algorithms and machine learning models designed to assist with customer inquiries by referencing information available on our website support sections and content specific to the Service. While Cary strives to provide accurate and helpful information, the responses that Cary generates are not infallible and may not always reflect the most current company policies or industry standards.
   2. By submitting a question/prompt in Cary, you consent to our monitoring and recording of your question(s)/prompt(s) and Cary’s response(s) (the “Conversations”). Viably collects, processes, retains, and uses the Conversation for the following purposes: communication with you, fraud prevention, research, development, analytical and archival purposes, and to improve, maintain and provide Cary or other Services, and to assist you further if you contact us. Viably may associate your Conversations to other information about you, including but not limited to your IP address, location, name, or social media profile and to your account. You agree that if you include your contact information, such as your telephone number or email address, we may use your contact information to associate information about you to the Conversations and contact you using the contact information you provided.
   3. You bear sole responsibility for your use of Cary and your interaction and reliance on the information it provides. Generally, you are encouraged to verify any AI-generated information before relying on it. Viably shall not be held liable for any errors or omissions in the information that Cary provides and shall not be liable for any damages or decisions made based on such information.
   4. While using Cary, if you discover any inaccuracies in the information it provides, please feel free to contact us at [email protected] to report the inaccuracies.

2. Eligibility. You must be at least 21 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 21 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.

3. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at [email protected].

4. Changes to the Services and Service-Specific Terms. We may add services or modify existing services at any time. Some of the Services will be subject to Additional Terms (as defined below). You acknowledge and understand that to use those Services, you must agree to the Additional Terms that we will provide separately. We do not guarantee that each of the Services will always be offered or available to you. For example, granting us access to your account and marketplace platforms does not constitute an immediate application for funding but only permits us to pre-screen you from time to time, at our sole discretion, for a potential pre-screened offer of funding. Services may change from time to time, and certain Services may be discontinued or others may be added.

5. Licenses

1. Limited License. Subject to your complete and ongoing compliance with these Terms, Viably grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (i) install and use one object code copy of any mobile or other downloadable application associated with the Service (whether installed by you or pre-installed on your mobile device by the device manufacturer or a wireless telephone provider) on a mobile device that you own or control; and (ii) access and use the Service.
2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (i) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (ii) make modifications to the Service; or (iii) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
3. Feedback. You can submit to Viably via a Service or otherwise questions, comments, suggestions, and ideas (“Feedback“). If you choose to submit any Feedback, the Feedback you provide to us shall be deemed to be non-confidential and non-proprietary, and, accordingly, Viably shall be free to use such information on an unrestricted basis.

6. Ownership; Proprietary Rights. The Service is owned and operated by Viably or its third-party licensors or providers. 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 provided by Viably (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Viably or its third-party licensors. Except as expressly authorized by Viably, you may not make use of the Materials. There are no implied licenses in these Terms and Viably reserves all rights to the Materials not granted expressly in these Terms.

7. Third-Party Terms

1. Third-Party Services and Linked Websites.
   1. General. Viably may provide tools through the Service that enable you to export or import information, including User Content (as defined below) and data, to or from third-party services or marketplaces, including through features that allow you to link your account on the Service with an account on the third-party service or marketplace, or through our implementation of third-party buttons, or may from time to time recommend, provide you with access to, or enable third party software or other services for your consideration (collectively, “Third Party Services”). By using one of these tools, you hereby authorize Viably to transfer or receive that information to or from the applicable Third Party Service. Third Party Services are not under Viably’s control, and, to the fullest extent permitted by law, Viably is not responsible for any Third Party Service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Viably’s control, and Viably is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any User Content or information with such third-party services. Once sharing occurs, Viably will have no control over the information that has been shared. In addition to these Terms, you also agree to be bound by the additional service-specific terms application to services you purchase from, or that are provided by, Third Party Service providers.Any use by you of Third Party Services offered through the Service is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. In some instances, Viably may receive a revenue share from Third Party Service providers that Viably recommends to you or that you otherwise engage through your use of the Service.Viably does not provide any warranties or make representations to you with respect to Third Party Services. You acknowledge that Viably has no control over Third Party Services and will not be responsible or liable to you or anyone else for such Third Party Services. The availability of Third Party Services on Viably’s website or downloadable applications does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Viably. Viably does not guarantee the availability of Third Party Services and you acknowledge that Viably may disable access to any Third Party Services at any time in its sole discretion and without notice to you. Viably is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service.
   2. Funding Copilot. Viably’s Funding Copilot allows you to compare various funding products and services. Completing or submitting a request for funding is a request to be matched with Third-Party Service providers of one or more particular financial products or services (Funding Providers). When you submit a request for funding, Viably will attempt to match you with Funding Providers offering products or services for which you may qualify or that may be of interest to you. You also agree that we may try to identify matches for similar or alternative products or services based on your request and information provided in your request for funding and that we may share your information with Funding Providers of such similar or alternative products or services.By submitting a request for funding, you hereby authorize Viably to transfer or receive your information, including User Content (as defined below) and data, including sensitive financial information, to or from the applicable Funding Provider. Funding Providers are not under Viably’s control, and, to the fullest extent permitted by law, Viably is not responsible for any Funding Provider’s use of your exported information.Any funding inquiry you submit is not an application for credit. Rather, it is an inquiry or request to be matched with Funding Providers that may be able to present conditional funding offers to you, which offers are subject to change at any time, including at the point of application with the Funding Provider, after verification of information you provided, as well as other conditions as solely determined by any Funding Provider with whom you proceed. You are under no obligation to proceed with any Funding Provider or conditional offer.Submitting a request for funding does not guarantee that you will receive any conditional funding offers or funding approvals..Funding Providers, and not Viably, establish and maintain approval standards and determine the criteria necessary to receive conditional offers. You should review each Funding Provider’s terms and conditions to determine which offer works for you and your financial situation. We do not guarantee acceptance into any particular program or any specific terms or conditions with any Funding Provider.Viably is paid a marketing lead generation fee by Funding Providers for the goods, facilities, and services provided. Conditional offers that appear on the Websites are from companies from whom Viably receives compensation. In some cases, where disclosed, this compensation may impact how and where offers appear (such as the order). Your use of the Services constitutes your awareness and acknowledgement of this compensation arrangement and the potential impact it may have on presentation of offers or other products or services. We do not include all products, services, offers, issuers, or credit or service providers available in the marketplace.You may have to complete an application with a Funding Provider before the Funding Provider will extend an unconditional offer to you. A Funding Provider you select may require you to pay an application or other fee to cover the costs of an appraisal, credit report, or other items. You may be responsible for paying any and all closing costs associated with the funding as solely determined by the Funding Provider, and not Viably. The Funding Provider, and not Viably, will likewise determine the amount of any fees or costs and should provide information to you regarding the refundability of any fee or cost.
2. Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.

8. User Content

1. User Content Generally. Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Service, including photos, video or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works, but excluding Feedback (collectively, “User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service, subject to the licenses granted in these Terms.
2. Limited License Grant to Viably. By Posting User Content to or via the Service, you grant Viably a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, reproduce, modify for the purpose of formatting for display via the Service and create derivative works as authorized in these Terms, in each instance whether now known or hereafter developed. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from Viably’s exercise of the license set forth in this Section.
3. You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Viably disclaims 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 to us that:
   1. you are the owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Viably and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Viably, the Service, and these Terms;
   2. your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (a) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) cause Viably to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
   3. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, illegal, or otherwise inappropriate.
4. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. Viably may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you will 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 Viably with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, 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, Viably does not permit infringing activities on the Service.
5. Monitoring Content. Viably does not control and does not have any obligation to monitor: (i) User Content; (ii) any content made available by third parties; or (iii) the use of the Service by its users. You acknowledge and agree that Viably reserves 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 Viably chooses to monitor the content, then Viably still assumes 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 (defined below). Viably may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Service without any liability to the user who Posted such User Content to the Service or to any other users of the Service.

9. Communications

1. Text Messaging and Phone Calls. You agree that Viably and those acting on our behalf may send you text (SMS) messages and call you at the phone number you provide us. Text messages may include operational messages about your use of the Service, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. YOU MAY OPT OUT OF RECEIVING PHONE CALLS BY EMAILING VIABLY AT [email protected] AND STATING THAT YOU NO LONGER WISH TO BE CONTACTED BY VIABLY BY PHONE. IF YOU WISH TO OPT OUT OF MARKETING TEXT MESSAGES FROM VIABLY, YOU CAN EMAIL [email protected] OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL TEXT MESSAGES FROM VIABLY, YOU CAN EMAIL [email protected] OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL PHONE CALLS AND MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing texts is not a condition of any purchase on or use of the Service.
2. Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.
3. Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.

10. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:

1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
2. violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
3. access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Viably;
4. use any information or data generated by the Service as a or as part of a “consumer report” as that term is defined in the Fair Credit Reporting Act (“FCRA”) or otherwise use the Service such that the Service would be deemed “consumer reports” under the FCRA;
5. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
6. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
7. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth;
8. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
9. attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 10.

11. Intellectual Property Rights Protection

1. Respect of Third-Party Rights. Viably respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
2. 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 any material on the Service, you may contact our Designated Agent at the following address:
   Viably Capital Inc
   Attn: Legal Department (IP Notification)
   215 E.Chatham St.
   Cary, NC 27511
   Email: [email protected]
3. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
   1. an electronic or physical signature of the person 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 right 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 or other intellectual property right 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 other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.Your Notification of Claimed Infringement may be shared by Viably with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to Viably making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
4. Repeat Infringers. Viably’s policy is to: (i) remove or disable access to material that Viably believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (ii) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. Viably will terminate the accounts of users that are determined by Viably to be repeat infringers. Viably reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
5. Counter Notification. If you receive a notification from Viably that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Viably with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Viably’s Designated Agent through one of the methods identified in Section 10.2, and include substantially the following information:
   1. your physical or electronic signature;
   2. identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
   3. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
   4. your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which Viably may be found, and that you will accept service of process from the person who provided notification under Section 11.2 above or an agent of that person.A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
6. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Viably in response to a Notification of Claimed Infringement, then Viably will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Viably will replace the removed User Content or cease disabling access to it in 10 business days, and Viably will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Viably’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Viably’s system or network.
7. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Viably] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” Viably reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.

12. Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should remove your User Content and discontinue your use of the Service.

13. Term, Termination, and Modification of the Service

1. Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13(b).
2. Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Viably may, at its sole discretion, terminate these Terms 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, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at [email protected].
3. Effect of Termination. Upon termination of these Terms: (i) your license rights will terminate and you must immediately cease all use of the Service; (ii) you will no longer be authorized to access your account or the Service; (iii) you must pay Viably any unpaid amount that was due prior to termination; (iv) all payment obligations accrued prior to termination; and (v) Sections 5(c), 6, 13(c), 14, 15, 16, 17, and 18 will survive. You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.
4. Modification of the Service. Viably reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Viably will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted to the Service.

14. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Viably, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Viably Entities”) from and against every claim brought by a third-party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. 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 by Viably

1. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. VIABLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. VIABLY DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND VIABLY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR VIABLY ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE VIABLY ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE OR YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
3. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. VIABLY DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT VIABLY IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

16. Limitation of Liability

1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE VIABLY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY VIABLY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
2. EXCEPT AS PROVIDED IN SECTION 17 BELOW AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE VIABLY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (I) THE AMOUNT YOU HAVE PAID TO VIABLY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (II) US$100.
3. EACH PROVISION OF THESE TERMS 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 THESE TERMS. 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 THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

17. Arbitration Agreement; Class Action Waiver; Jury Trial Waiver.
Please review this section carefully. This arbitration provision limits your and our ability to litigate claims in court and you and us each agree to waive respective rights to a jury trial or a state or federal judge. Except as otherwise expressly permitted herein, you agree that you will not file any lawsuit against us in any state or federal court.

BY ACCESSING AND/OR USING ANY SERVICE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO ARBITRATE.

1. Generally. This Dispute Resolution Process, including the obligation to arbitrate any claims against Viably, shall apply to your use of the Service or any other dispute you may have with Viably, including claims that arose before the existence of this or any prior agreement between the parties (collectively, “Dispute”). For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern this Dispute Resolution Process.
2. Informal Dispute Resolution. If you believe you have a Dispute with Viably, please contact Viably by email at [email protected] so Viably can try to resolve your concerns. Viably will likewise contact you by email or other available contact information if it believes it has a Dispute with you. For a sixty (60) day period from the notice receipt date, Viably and you will engage in good faith discussions to attempt to resolve the Dispute. Most concerns may be quickly resolved in this manner. Participation in this informal dispute resolution process—during which any applicable statute of limitations or filing fee deadline will be tolled—shall be a precondition to either party initiating a lawsuit or arbitration.
3. Binding Arbitration. If we cannot resolve a Dispute as set forth in the manner described in the preceding paragraph, then, except as set forth in subparagraph (d) below, the Dispute must be resolved solely by binding individual arbitration before the American Arbitration Association (“AAA”) using AAA’s then-current Commercial Arbitration Rules or, provided that you are an individual consumer and using a Service for personal use, the Consumer Arbitration Rules, each including, when applicable, AAA’s Mass Arbitration Supplementary Rules. You can obtain AAA procedures, rules, and fee information at http://www.adr.org or by calling the AAA at +1-800-778-7879. The arbitration will be conducted by a single arbitrator who shall be a retired state or federal court judge, unless Viably elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel. To provide the most efficient resolution process, arbitration hearings may be conducted via electronic or telephonic means or by a submission of documents in lieu of a personal appearance by the parties. However, the arbitrator shall have discretionary authority to require a face-to-face meeting if the arbitrator determines that such a meeting is necessary for a fundamentally fair hearing.
4. Exceptions. Although we are agreeing to arbitrate most Disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action seeking individualized relief in small claims court for disputes or claims within the scope of the court’s jurisdiction; (ii) bring a suit in court to enjoin infringement or other misuse of intellectual property rights or confidential information. pursue an enforcement action through the applicable federal, state, or local agency if that action is available; or (iii) to file suit in a court of law relating to the enforcement or validity of intellectual property rights.
5. 30-Day Right to Opt-Out. You have the right to opt out and not be bound by the binding arbitration provision set forth above if, within thirty (30) days after you first agreed to these Terms, you send written notice of your decision to opt out to the following address via certified mail: Viably Capital Inc., Attention: Legal Department – Arbitration Opt-Out, 1 Glenwood Ave, Suite 500, Raleigh, NC, 27603 (“Opt-Out Notice”) The Opt-Out Notice must include your full legal name, the email address associated with your Service account (if applicable), and a statement that you wish to opt out of binding arbitration.. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
6. No Mass Arbitration or Class Actions. THE PARTIES FURTHER AGREE THAT ANY ARBITRATION SHALL BE CONDUCTED IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION, PARTICIPATE IN A CLASS ACTION, OR SEEK RELIEF ON A CLASS BASIS. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. Nevertheless, (i) to the extent an arbitration does fall within the AAA’s definition of a “mass arbitration,” you and Viably agree to be bound by the procedures set forth in the AAA’s Mass Arbitration Supplementary Rules effective on January 15, 2024, as amended; or (ii) if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to the provisions of the paragraph titled “Governing Law” below.

18. Miscellaneous

1. General Terms. These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Viably regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
2. Governing Law. These Terms are governed by the laws of the State of New York without regard to conflict of law principles. You and Viably submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York, New York for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in North Carolina, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
3. Time Limits. To the fullest extent permitted by applicable law, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR ANY SERVICE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OR THE APPLICABLE STATUTE OF LIMITATIONS, WHICHEVER IS SHORTER. OTHERWISE, THAT CAUSE OF ACTION IS PERMANENTLY BARRED.
4. Privacy Policy. Please read the Viably Privacy Policy https://www.runviably.com/viably-privacy-policy/ (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Viably Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
5. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms. In the event of an inconsistency between these Terms and any Additional Terms, the Additional Terms will govern with respect to the extent of such inconsistency.
6. Shopify Users. If you have downloaded the Viably application (the “App”) through Shopify, please be informed that (i) Viably is solely responsible for the App; (ii)_Shopify is not liable for any fault in the App or any harm that may result from its installation or use; (iii) except where expressly stated by Shopify, Shopify cannot provide assistance with the installation or use of the App; and (iv) Viably is solely responsible for any liability which may arise from your access to or use of the App, including (A) the development, use, marketing or distribution of or access to the App, including support of the App; or (B) Viably’s access, use, distribution or storage of your data.
7. Consent to Electronic Communications. BY USING THE SERVICE, YOU CONSENT TO RECEIVING CERTAIN ELECTRONIC COMMUNICATIONS FROM US. YOU AGREE THAT ANY NOTICES, AGREEMENTS, DISCLOSURES, OR OTHER COMMUNICATIONS THAT WE SEND TO YOU ELECTRONICALLY WILL SATISFY ANY LEGAL COMMUNICATION REQUIREMENTS, INCLUDING THAT THOSE COMMUNICATIONS BE IN WRITING.
8. Contact Information. The Service is offered by Viably Capital Inc., located at 215 E.Chatham St.Cary, NC 27511. You may contact us by sending correspondence to that address or by emailing us at [email protected].
9. Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
10. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.