MERCHANT TERMS OF SERVICE

CHANNEL TERMS

If you subscribed to vLoyalty through a third party other than vPromos, such as your Merchant Services Provider, the following applies to you:

Merchant Terms and Conditions

Last Updated: March 19, 2021

BY ACCEPTING THESE vLOYALTY MERCHANT TERMS AND CONDITIONS (THESE “TERMS”), YOU AGREE TO BE BOUND BY, AND CONCLUDE, A LEGALLY BINDING CONTRACT WITH vPROMOS INC., A TEXAS CORPORATION (“vPROMOS”) INCLUDING THESE TERMS RELATED (THE “AGREEMENT”) TO THE vLOYALTY SOLUTION AND THE vLOYALTY PROGRAM (EACH AS DEFINED IN SECTION 3.1 HEREOF). IF YOU ACCESS AND USE THE vLOYALTY SOLUTION, YOU WILL BE DEEMED TO HAVE ACCEPTED THESE TERMS.  THESE TERMS CONTAIN IMPORTANT TERMS THAT AFFECT YOUR RIGHTS, INCLUDING DISCLAIMERS, LIMITATIONS OF LIABILITY, A CHOICE OF TEXAS LAW AND A BINDING ARBITRATION AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS, THEN DO NOT ACCEPT THESE TERMS AND DO NOT USE THE vLOYALTY SOLUTION AND DO NOT PARTICIPATE IN THE vLOYALTY PROGRAM

1.      “You”; Term; Modifications and Amendments.

1.1  “You” means the merchant on whose behalf these Terms are accepted and/or that uses the vLoyalty Solution or participates in the vLoyalty Program with its customers.

1.2   The term and duration of the Agreement commences on (and these Terms are in effect as of) Your acceptance of these Terms and continues until the Agreement is otherwise terminated in accordance with Section 1.4 or 11.1 hereof (the “Term”).  These Terms are in effect during the Term and cease having effect upon the termination of the Agreement, subject to Section 11.2 hereof.

1.3     Use of the vLoyalty Solution and participation in the vLoyalty Program is further subject to the vLoyalty manual and rules issued by vPromos as set forth at vloyalty.com/merchant/rules or such other location as vPromos may designate and make known (the “Rules”).  The Rules are incorporated by reference into these Terms and shall be deemed to be part of these Terms as if expressly set forth herein.  In the event of a conflict between any provision in the Rules and any provision in the remainder of these Terms, the provision in the remainder of these Terms shall prevail.

1.4   vPromos may modify or amend these Terms if and to the extent necessary to comply with any applicable law, rights of any third party, account for any change in the vLoyalty Solution, or for any other reason it deems appropriate by posting the then-current version of the Terms at vloyalty.com/merchant/terms and providing reasonable Notice thereof.  If at any time You do not agree with any modification or amendment of these Terms, You must immediately terminate the Agreement by ceasing to use the vLoyalty Solution and participate in the vLoyalty Program.  Your use of the vLoyalty Solution thereafter, and Your participation in the vLoyalty Program, thereafter, shall be conclusively deemed to be Your consent and agreement to such modification or amendment, and the modified and amended version of the Terms and the Agreement shall thereafter be in effect between vPromos and You.  In the event of a conflict between these Terms and the terms of an Offer created or requested in Your Merchant Dashboard, these Terms shall prevail.

2.   The Merchant Services Provider.  vPromos provides You the opportunity to take a license to the vLoyalty Solution under these Terms through a third-party merchant services provider authorized by vPromos to do so (the “Merchant Services Provider”).  You will agree with the Merchant Services Provider on the fees owed and due for Your obtaining the license to use the vLoyalty Solutions as set forth under these Terms (the “Fees”) and pay all Fees to the Merchant Services Provider.  You acknowledge and agree, however, that: (i) the Merchant Services Provider merely passes on these Terms and has no right, and may not, grant You or any person any license or other right or claim to the vLoyalty Solution, and You receive no rights or claim related to the vLoyalty Solution from the Merchant Services Provider; (ii) the Merchant Services Provider is no agent, and has no authority or agency to represent vPromos, to modify or negotiate anything in these Terms, or to bind vPromos in any way or to make any agreements or promises for or on behalf of vPromos; and (iii) vPromos is not, and shall not be deemed to be, expressly or implicitly, a party to, or bound in any way by, any agreement or contract between You and the Merchant Services Provider; and (iv) vPromos is not, and shall not be deemed to be, expressly or implicitly, liable or obligated for the Merchant Services Provider or any liability, obligation, breach, act, or omission of the Merchant Services Provider.

3.   vLoyalty Solution and vLoyalty Program.

3.1     The “vLoyalty Solution” means vPromos’s proprietary method, process, and system for implementing and operating the vLoyalty Program.  The “vLoyalty Program” means a payment-based (credit or debit or cash) customer loyalty/incentive awards program that a licensed merchant may use with a loyalty and/or incentive awards program offered by such licensed merchant, and which includes the ability of such licensed merchant to permit customers at the point of sale at such licensed merchant’s actual (brick and mortar) or virtual store (each, a merchant’s Point of Sale (“POS”) to enroll in such loyalty and/or incentive awards program and to deliver payment triggered messages to such customers, track ongoing purchases made with such customers’ enrolled payment cards, message such customers per notification parameters, and; as vPromos may update, upgrade, or enhance from time to time.

3.2     vPromos makes the use of the vLoyalty Solution and Your participation in the vLoyalty Program available to You solely for any Offer (as defined in Section 6.1 hereof) of You, solely with Your use of vPromos’s software and system for customer engagement provided to You by the Merchant Services Provider (the “vPromos Platform”), and solely with any customer enrolling into such Offer at any POS through the vPromos Platform and accepting vPromos’s vLoyalty end user terms and conditions, while such customer is so enrolled (each, an “Enrolled Customer”).

3.3     vPromos may, without obligation or notice, update, upgrade, enhance, and otherwise modify or replace any of the vLoyalty Solution or vPromos Platform or update, upgrade, enhance, and otherwise modify or replace features of the vLoyalty Program and will make commercially reasonable efforts to notify You if any such update, upgrade, enhancement, or other modification or replacement affects the Offer.

4.   License.

4.1     Conditioned on Your full payment of the Fees to the Merchant Services Provider, vPromos grants You a non-transferable, non-assignable, terminable, limited, and nonexclusive license, without the right to sublicense or to grant any direct or indirect sublicenses or sublicense rights, to use the vLoyalty Program solely with an Offer to: (i) permit customers to enroll in such Offer at Your POS, and (ii) access and use the merchant portal that vPromos made available to You via or other website identified by vPromos to You (the “Merchant Portal”) solely to create, monitor, and track the loyalty or incentive awards of any Enrolled Customer; all subject to, under, and in accordance with the terms and conditions of these Terms.

4.2     You shall not: (i) use the vLoyalty Solution other than with an Offer; (ii) use the vLoyalty Solution or Enrollment System for or on behalf of any other merchant or business, or any program of any other merchant or business, or with any customer other than a customer who enrolls at Your POS through the vPromos Platform; (iii) use or permit the use of the vLoyalty Solution, or use or make or manage any Offer, in any manner or with any content or for any product, service, message, or purpose that violates any applicable law or any rules of any payment card network, or violates or infringes any intellectual property or other right or property of any person, or is defamatory, illegal, pornographic, or is likely to harm the good reputation of vPromos; (iv) reverse engineer, determine the source code, or create any derivation, derivative work, or modification of any kind of any software or technology provided or made available or accessible as part of the Enrollment System or the vLoyalty Solution; (v) challenge vPromos’s rights or ownership in or to, or the validity or enforceability of any proprietary right in or to or covering, any of the vLoyalty Solution or vPromos Platform; (vi) assign, transfer, sell, rent, lease, extend, sublicense, convey, distribute, or encumber any license or right under these Terms or any vLoyalty Solution or Enrollment System; or (vii) cause, induce, request, or permit any Authorized User or other third party to do or engage in any of the foregoing.

5.   Merchant Portal.  You are responsible for maintaining the confidentiality of Your merchant account password for the social media site or other website where Your Merchant Portal is accessed and used.  You are responsible for all activities that occur under Your account.  You agree to immediately notify us of any unauthorized use of Your password or Merchant Portal or any other breach of security related to the Merchant. vPromos is not and will not be liable for any loss or damage arising from Your failure to comply with this requirement.  In addition to the other rights set forth herein, vPromos reserves the right to refuse service to You or any other merchant at any time without notice for any reason. You shall cause each employee, agent, and other user with access to the Merchant. Your behalf to comply with all of the terms, conditions, and obligations related to the use of the vLoyalty Solution and the Merchant Dashboard under or pursuant to these Terms.  You are, shall be, and shall remain responsible and liable for all acts and omissions of any person accessing or using, or receiving access or use, through, for, on behalf of, or as a result of You, directly or indirectly, and any such act and omission shall be deemed to be an act and omission of You.

6.   Offers and Rewards.

6.1     You may use the vLoyalty Solution solely with any of Your offers or rewards programs that You fully submit for use with the vLoyalty Program, together with all terms and conditions of such offer or rewards program, on the Merchant. Portal as directed thereon (“Offer”).  An offer or rewards program is not an Offer unless and until it has been fully submitted on the Merchant Portal as directed thereon.  In the event that an Offer violates or is not in compliance with any requirement under these Terms or on the Merchant Portal vPromos may terminate immediately the right and license under these Terms to use the vLoyalty Program with such an Offer by notice or by discontinuing any use of the vLoyalty Program with such an Offer. You are responsible and liable for all content and terms, and compliance with all content and terms, of an Offer, and for vPromos’s or any Enrolled Customer’s use or reliance thereon.

6.2     vPromos may promote an Offer using any method and through any medium that vPromos deems appropriate in its sole discretion, including email, mobile applications, any social media site or any other type of electronic interface or distribution channel owned, controlled or operated by vPromos. vPromos further reserves the right, but has no obligation, to promote an Offer through its affiliates and third-party business partners from time to time. vPromos may promote an Offer to customers or consumers based on geographic or other geolocational data but will determine the customers or consumers to whom Your Offer is actually promoted and made available in its sole discretion.

6.3     You acknowledge and agree that You are the exclusive promoter of Your Offer(s).  You also are responsible and liable for: (a) making Your Offers available solely through the vLoyalty Program and the vLoyalty Solution under these Terms; (b) fulfilling Your Offers with respect to all customers; and (c) funding all discounts and supplying all goods and/or services specified in the Offer.

6.4     You hereby grant vPromos a non-exclusive, worldwide, royalty free, fully paid up, transferable, irrevocable, perpetual, and sub-licensable license to use any of Your marks and names for the description and promotion of Your Offers, and use, copy, distribute, display, and perform any trademarks, photographs, graphics, artwork, videos, sound clips, text, and other works, content, and materials that You provide to vPromos, to describe and Your Offer in any and all media or formats.  You hereby agree that vPromos may identify You as a licensee of the vLoyalty Solution and participant in the vLoyalty Program to any other licensee or potential licensee, whether publicly or privately.

7.   Payment.  You shall pay all Fees to the Merchant Services Provider strictly in accordance with the payment terms and times agreed between You and the Merchant Services Provider.  If You fail to timely pay any Fees, vPromos may terminate the license and agreement in these Terms as set forth in the event of any breach of these Terms by You.

8.   Reservation of Rights; Confidentiality.

8.1     vPromos owns and shall retain all rights, title and interest in and to all of the vLoyalty Program, the vLoyalty Solution, the vPromos Platform, the Merchant Portalall technology, inventions, works, developments, processes, methods, ideas, concepts, and other intellectual property in or to or related to the vLoyalty Program or the vLoyalty Solution, all Enrollment Data, all social media sites of vPromos and all assets and value related thereto (including, without limitation, likes or feedback), and all improvements, derivative works, upgrades, updates, enhancements, modifications, adaptations, versions, and derivations of any kind (by whomever created) to or from or based on any of the foregoing, and all patents, patent applications, copyrights, trade secret rights, trademarks, service marks, trade dress, names, designs, and other intellectual property rights in or to or covering any of the foregoing anywhere in the world and under any law (individually and collectively, “vPromos Property”).  vPromos does not assign, transfer, convey, license (other than the license in Section 4.1 hereof during the Term), or grant any right, title, interest, lien, or claim in or to any vPromos Property, whether expressly, implicitly, or otherwise.  If You own, have, or acquire any rights, title, interest, license (other than the license in Section 4.1 hereof during the Term), lien, or claim in or to any vPromos Property, You agree to assign, and You hereby assign, all such rights, title, interest, license, lien, or claim to vPromos, without payment by vPromos or obligation to make any payment by vPromos.  You shall, and shall cause any employee, agent, contractor, and representative to, execute any document or take any reasonable action as requested by vPromos to effect any of the foregoing provisions in this Section 8.1.

8.2     If vPromos believes that the vLoyalty Solution or the vLoyalty Program may be subject to an injunction or claim by a third party, vPromos, at its sole discretion and expense, may do one of the following: (i) negotiate a license or other agreement to avoid such injunction or claim, (ii) modify or replace such vLoyalty Solution or vLoyalty Program, as applicable, to avoid such injunction or claim, or (iii) terminate the Agreement and these Terms.

8.3     Any data, documentation, materials, and information that You, directly or indirectly, receive or obtain from, or are made available or accessible to You by, vPromos shall be deemed confidential information of vPromos, other than solely any specific documentation or information that is known publicly or after it becomes known publicly other than as a result of You or Your personnel (“Confidential Information”).  You may use any Confidential Information that is provided or made accessible by vPromos solely in connection with vLoyalty Program as is reasonable and in compliance with these Terms, and may disclose such Confidential Information to any of Your employees and contractors solely for their use of such Confidential Information on Your behalf as permitted under this Section 8.3 as long as such employee or contractor is subject to confidentiality and non-disclosure obligations that are no less stringent than those in this Section 8.  Otherwise, neither You nor Your personnel may, directly or indirectly, use, copy, reproduce, utilize, disclose, provide or reveal to, or permit or give access to, any third party, or publish, disseminate, or distribute, any Confidential Information, or any part thereof, in whatever form or format.  You shall take the same precautions to protect the confidentiality of the Confidential Information as You take for Your own confidential information and trade secret.  In the event that applicable law, or a court or government order, requires disclosure of any Confidential Information by You or any Your personnel, You shall provide vPromos with prompt notice of such request or requirement and reasonably assist vPromos with seeking an appropriate protective order or other remedy as decided by vPromos.  In any case, You will disclose only such of the Confidential Information it is legally required to disclose and will use its best efforts to ensure that all Confidential Information so disclosed will be accorded confidential treatment.

9.   Data.

9.1     vPromos is the operator of vLoyalty.  Any and all data and information submitted, collected, or generated in connection with an enrollment at the POS, including, without limitation, any and all data, information, and shall be owned solely by vPromos (“Enrollment Data”).  You are and will not be entitled to receive, have, obtain, use, or utilize any personally identifiable Enrollment Data.  You shall not capture, collect, or otherwise obtain any Enrollment Data, including, without limitation, by recording or copying any Enrollment Data during or after any enrollment process.  At the Merchant portal, You will have access to only aggregated information. vPromos will not share, provide, or make available to You any Enrollment Data.

9.2     Any personally identifiable data previously collected by Merchant, if such data are not collected at the POS and are collected online through a third party site and with permission of the data subject, shall be the property of both Merchant and vPromos, subject to the terms of such third party site, provided that each of vPromos and Merchant shall be responsible for its own, and shall not be responsible, liable, or obligated for the other’s, collection, processing, disclosure, storage, or other handling of such data or violation of applicable law related to such data.

10.  Electronic Notices and Disclosures; Notices.  You consent to receiving electronically rather than in paper form all written notices, disclosures and other documents (“Documents”) which are to be provided by vPromos to You under the Agreement.  Such Documents may be sent to You by email at the e-mail address You provided to vPromos, or through Your Merchant Portal or through any other administrative section to which the Merchant has access through the use of the vLoyalty Program.  Any written notices by You to vPromos under these Terms shall be sent to vPromos at legal@vpromos.com.

11.  Termination; Effects.

11.1   The Agreement is conditioned on vPromos’s agreement with the Merchant Services Provider being effective and not terminated.  In the event that vPromos’s agreement with the Merchant Services Provider terminates or expires, the Agreement automatically terminates, with or without notice by vPromos to You.  vPromos will make commercially reasonable efforts to notify You of such termination.

11.2   You or vPromos may terminate the Agreement by written notice of termination to the other party hereto in the event: (i) of a material breach of these Terms by such other party that is reasonably identified in such written notice of termination, which termination shall be effective at the end of thirty (30) days after such other party receives written notice thereof from such terminating party unless such other party has cured such material breach during such thirty (30) day period; of (ii) that such other party discontinues its business operations, takes steps to dissolve or cease to exist, admits its inability to pay its debts as they become due, files or is or becomes subject to a petition in bankruptcy (or similar reorganization proceeding) or makes a general assignment for the benefit of its creditors, or becomes subject to the appointment of a receiver.  In addition, vPromos may terminate the Agreement and suspend Your access to the Merchant Dashboard immediately upon written notice to You if: (a) You violate Your redemption obligations with respect to any Offer made by You; (b) You fail to redeem or cause the redemption failure of any Offer for any reason, including but not limited to the sale or dissolution of Your business or a violation of or a higher than expected number of purchasers, or (c) You materially breach Your agreement with the Merchant Services Provider and such material breach impacts any rights, property, commercial interest, or expectation of vPromos.

11.3   The termination of the Agreement shall in no way affect the rights of an Enrolled Customer accrued under any Offer prior to such termination or Your obligation to pay, or Your liability, for valid redemptions, or rights of redemption of earned rewards accrued, under an Offer pursuant to its terms.  Upon termination of the  Agreement, You agree that (i) any issued points or credits to an Enrolled Customer will be accelerated and immediately converted into an applicable reward, (ii) vPromos will on Your behalf notify Enrolled Customers of the termination of the vLoyalty Program and the acceleration to completion of earned vLoyalty Reward, and delivery of the corresponding reward in the form of an email, mobile application or text (“Termination Reward”), and (iii) You agree to honor that Termination Reward for a period of ninety (90) days from the date of termination of the Agreement.  In the event of a termination of vPromos’s agreement with the Merchant Services Provider, You hereby agree and consent to a transfer or novation of Your agreement with the Merchant Services Provider from the Merchant Services Provider to vPromos if vPromos notifies You of its decision to agree or pursue such transfer or novation, and You agree to execute any document and provide any other reasonable assistance requested by vPromos for such purpose.

11.4   All provisions in Sections 8, 9, 11.3, 12, 13, 14, 15, 16, and 17 hereof, and this Section 11.4, and Your obligation to pay any Fees owed and due and unpaid, shall survive the termination of the Agreement.

12.  Representations and Warranties.  You hereby represent and warrant to vPromos that (i) You have the power and authority, and all rights, to enter into the Agreement and perform Your obligations under these Terms; (ii) You are an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of Your incorporation or formation, and You are duly qualified to do business and are in good standing in each jurisdiction where the conduct of Your business, provision of Your goods and/or services, or the ownership of Your property requires such qualification; (iv) the Agreement reflects Your legal, valid and binding obligation, enforceable against You; (iv) You will comply with all laws, rules and regulations applicable to Your obligations under the Agreement; (v) You will collect and remit any and all applicable state or local sales, use, occupancy, and other taxes that may apply to the redemption of an Offer or the supplying of goods or services; (vi) Your content in an Offer, Your representations about Your business, and Your redemption process for an  Offer do not and will not infringe, misappropriate, or otherwise violate any intellectual property right or right of privacy or publicity of any third party; (vii) You hold all necessary regulatory permits or licenses, if any, required to make any  Offer described in any Order through the vLoyalty Program; and (viii) You will provide the discounts, goods, and services made available through any Offer consistent with industry best practices.

13.  Indemnity.  You agree to defend, indemnify, and hold harmless vPromos, its subsidiaries, affiliates, and its and their respective officers, directors, employees, sub-contractors, suppliers, agents and representatives (collectively, the “Indemnitees”), from and against any claim, action, suit, litigation, demand, allegation, arbitration, proceeding, fine, penalty, administrative action, judgment, order, damages, loss, liability, injury, costs, expenses (including, without limitation, reasonable attorneys’ fees and witness and other defense costs), settlement, including but not limited to any escheatment or unclaimed property liability action or any complaint or injury alleged by an Enrolled Customer or consumer related to. arising from or in connection with or related to: (i) any Offer, the terms of any Offer, any redemption thereof, or any claims by any customer related to any Offer, or any products or services offered by You; (ii) any breach by You of any provision in these Terms; (iii) any direct or indirect infringement or violation of another’s intellectual property or intellectual property right resulting from, in connection with, or related to any content, mark, or name licensed by You to vPromos in these Terms; (iv) any violation of any obligation regarding data privacy or protection of customer data, personally identifiable, or other data by You; and (v) any negligence or willful misconduct or violation of law of You or any of Your employees, contractors, agents, or representatives.

14.  Disclaimer of Warranties; Limitation of Remedies.

14.1   vPROMOS DOES NOT MAKE ANY, AND HEREBY DISCLAIMS ANY AND ALL, WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY, AND IMPLIED, IN CONNECTION WITH THE AGREEMENT, THESE TERMS, THE vLOYALTY SOLUTION, THE vLOYALTY PROGRAM, THE MERCHANT DASHBOARD, ANY USE THEREOF, OR ANY MATTER HEREUNDER, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

14.2   YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY, IN THE EVENT OF ANY BREACH, DISPUTE, CLAIM, OR ACTION ARISING OUT OF OR IN ANY WAY RELATED TO OR RESULTING FROM THE AGREEMENT, THE vLOYALTY PROGRAM, vLOYALTY SOLUTION, THE VPROMOS PLATFORM, THE MERCHANT DASHBOARD, OR OTHERWISE UNDER THESE TERMS SHALL BE THE TERMINATION OF THE AGREEMENT UNDER SECTION 11.1 HEREOF.  IN NO EVENT SHALL vPROMOS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, AND DISCLOSURE OR LOSS OF INFORMATION, DATA, INCOME, REVENUE, GOODWILL OR ANTICIPATED SAVINGS), REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM AND REGARDLESS OF WHETHER vPROMOS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IF vPROMOS HAS ANY liability that is not excluded under THIS SECTION 14.2 or THAT cannot be excluded under applicable law, vPROMOS’S LIABILITY SHALL, IN THE AGGREGATE, BE LIMITED TO AND NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FIVE THOUSAND U.S. DOLLARS (US$5,000.00).

15.  Governing Law. The validity, enforceability, effect, and performance of the Agreement or these Terms shall be governed by, the Agreement and these Terms shall be interpreted in accordance with, and any dispute under the Agreement or these Terms shall be decided under, the laws of the State of Texas and any U.S. federal law applicable thereto, without regard of any conflict of laws provision that would result in the application of the law of any other jurisdiction.

16.  Arbitration.

16.1   Any dispute between You and vPromos related to the Agreement these Terms, or their validity, enforceability, effect, performance, interpretation, or enforcement shall be, upon the request of You and/or vPromos, referred to, and be finally resolved by, arbitration under the Commercial Rules of the American Arbitration Association (the “AAA”), provided that the terms of this Section 16 and these Terms shall prevail over such Commercial Rules in the event of a conflict.  The arbitration shall consist of a single arbitrator mutually agreed by the Parties, or, in the absence of such agreement, as appointed through the AAA’s arbitrator appointment service. Any arbitration shall take place in Dallas, Texas.  Any arbitration proceeding shall be conducted according to, and the disputes shall be resolved by the arbitrator under and in application of, the law chosen as the governing law in Section 15 hereof. All proceedings under this Section 16 shall be conducted in the English language and all documents exchanged and/or submitted in the context of a proceeding under this Section 16 shall be in English or shall be accompanied with a certified English translation of the original document.  The arbitrator shall not be authorized to reform, modify or materially amend this Agreement or any provision hereof. The arbitrator shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief that they determine to be just or equitable and within the scope of this Agreement, including an injunction or order for specific performance. The award of the arbitrator shall be final and binding and may be enforced by any court having jurisdiction. You and vPromos waive any right to appeal the arbitration award, to the extent a right to appeal may be lawfully waived.  Each Party shall be responsible for payment of its own attorneys’ fees and costs in connection with such arbitration, provided that any costs, fees or taxes incident to enforcing an award shall be charged against the Party resisting such enforcement to the maximum extent permitted by applicable law.

16.2   Notwithstanding the foregoing provisions in this Section 16, vPromos has the right to resolve the following through any action in any court with appropriate jurisdiction: (i) any claim, dispute or controversy involving any infringement, threatened or alleged infringement, enforcement of, right to, title to or ownership of, or provision in this Agreement relating to, any vPromos Property or other intellectual property right of vPromos a Party or any of its affiliates; (ii) any injunctive relief for violation or threatened or alleged violation of any of these Terms; and (iii) any legal proceeding threatened, initiated or brought by a third party against You and/or vPromos, or any cross-claim or third-party claim in such third party’s legal proceeding by You or vPromos against the other.

16.3   With regard to any action to enforce any arbitration award, and any action under Section 16.2 hereof, You and vPromos each submit to, and each waive all objections to, the personal and exclusive jurisdiction of the Texas state and U.S. federal courts in Dallas County, Texas, with regard to any dispute under or related to the Agreement or these Terms.  YOU AND VPROMOS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY.

17.  Miscellaneous.

17.1   You recognize that any actual or potential violation, breach, or non-performance of, or default under, any provision in these Terms may cause irreparable injury to vPromos for which vPromos may have no adequate remedy at law.  Therefore, You agree that vPromos shall be entitled to seek injunctive relief or specific performance, without need or obligation to post any bond, to enforce any obligation, agreement, covenant, term and condition under these Terms, in addition to any other rights and remedies available to vPromos, all as vPromos elects in its sole discretion.

17.2   You may not transfer or assign the Agreement either in whole or in part or assign any rights under the Agreement or these Terms or delegate Your obligations hereunder, without the express prior written discretionary consent of vPromos.  vPromos may assign these Terms or any rights, or delegate any obligations, at any time to any third party.  Any attempted assignment or delegation in contravention of the foregoing shall be null and void.  These Terms shall be binding upon and inure to the benefit of the permitted successors and assigns of the Parties.

17.3   In these Terms, (i) any reference to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time; (ii) where these Terms state You or vPromos “shall” or “will” perform in some manner or otherwise act or omit to act, it means that You or vPromos, as applicable, is legally obligated to do so in accordance with these Terms; (iii) the principle ejusdem generis shall not apply to any provision in these Terms; (iv) the provisions of these Terms shall not be interpreted against the drafter, and for purposes of any interpretation, both Parties shall be deemed to be drafters of these Terms; (v) all article and section headings are intended solely for the convenience of the Parties, and none will be deemed to affect the meaning or construction of any provision hereof; and (vi) words of any gender used in these Terms are intended to include any other gender, and words in the singular number include the plural, and vice versa, unless the context clearly indicates otherwise.

17.4   These Terms constitutes the entire Agreement, and the entire understanding and agreement between the Parties hereto related to the subject matter hereof.  Neither the Agreement or these Terms nor any term or provision hereof may be waived, changed, discharged or terminated except by an instrument in writing signed by the person against whom the enforcement of any waiver, change, discharge or termination is sought.  No modification, amendment, supplement to or waiver of any provision of these Terms will be binding upon the Parties unless made in a writing identifying the relevant provisions and signed by each Party through its authorized representative.  A failure of either Party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.

17.5   If any provision of these Terms is held to be invalid or unenforceable, the meaning of said provision will be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation shall save such provision, it will be severed from the remainder of these Terms, as appropriate.  The remainder of these Terms shall remain in full force and effect unless the severed provision is essential and material to the rights or benefits received by either Party.

17.6   Nothing in these Terms or the Agreement gives or is intended to give and shall not be construed to give or be intended to give, any third party of any kind any rights, and there are no third-party beneficiaries under these Terms or the Agreement.

For More Information.

If you have any questions regarding these Terms, please contact vPromos by sending an email to merchant.support@vpromos.com.