These Terms of Use (this "Agreement"), which is a legal agreement between you ("You" or "you" or “Merchant” or “Third Party Provider”) and Viply, LLC. a New Jersey limited liability corporation ("Viply"), shall govern Your use of and access to the Application (“Viply Application”) (as defined below) and the Website (as defined below). By checking any acceptance boxes, clicking any acceptance buttons, submitting any text or content or simply by making any use of the Application and/or Website, You (a) accept this Agreement and agree to be bound by each of its terms, and (b) represent and warrant to Viply that (i) You are at least 18 years of age and have the authority to enter into this Agreement (either on your own behalf or by having a parent or legal guardian agree to the terms set forth herein on your behalf), (ii) this Agreement is binding and enforceable against You, (iii) to the extent an individual is accepting this Agreement on behalf of an entity, such individual has the right and authority to agree to all of the terms set forth herein on behalf of such entity, and (iv) You have read and understand Viply's Privacy Policy, the terms of which are posted at the Website and incorporated herein by reference (the "Privacy Policy"), and agree to abide by the Privacy Policy. Viply may amend this Agreement from time to time, each of which amendments shall be deemed to be effective 2 days after posting the updated Agreement at the Website or within the Application. You should check the Website, the Application and this Agreement regularly to ensure You remain current on the terms and agreements set forth herein.

1. Purpose.

The purpose of this Agreement is to set forth the terms and conditions under which, among other things, (i) Viply will license to You use of certain of Viply's technology, software and/or services (“Services”), such that You can utilize the Application through your mobile device, and (ii) You can access and/or use the Website (collectively, the "Purpose"). As stipulated elsewhere in this Agreement, Viply does not exert any control over users of the Application, your (“Merchant”) customers who use the Application or any merchants, retailers, commercial ventures or other third parties, and as such is not liable or responsible for any actions taken or omitted to be taken by any such third party.

2. License.

Viply hereby grants You a non-transferable, non-exclusive, revocable, limited license to access and use Viply's access pass software platform commonly referred to as "Viply" or “Viply Pass” (the "Application") as made available through its website located at www.viplypass.com (the "Website") and/or via mobile application during the Term (as defined below) solely for the Purpose. Viply may, from time to time, update or modify the Application, release new versions of the Application or create new modules related thereto, each of which may, at Viply's discretion, be included within the license described above. You shall not be permitted to sublicense or transfer any of Your rights hereunder including, without limitation, access to the Application.

3. Certain Restrictions.

You shall not directly or indirectly copy or reproduce all or any part of the Application or the Website, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. You shall use the Application solely for its intended purposes and shall not use the Application for the benefit of any third party except as specifically contemplated under this Agreement. You shall not use the Application to post, transmit, convey, submit, distribute, store or destroy any content, photographs, descriptions, drawings, content, audio materials, text, messages or other information (collectively, "Posted Information"): (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; or (f) in violation of the any acceptable use policy or other policy posted at the Website or within the Application from time to time. You shall not violate or attempt to violate the security of the Application. You shall not reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Application, including, without limitation, any of the software comprising or in any way making up a part of the Application. In addition, You will not export, re-export or permit any third party to export or re-export, directly or indirectly, the Application where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. You shall defend and indemnify Viply, at Your sole cost and expense, from and against any claims, damages, liabilities and/or expenses arising out of Your breach of any of Your obligations or representations set forth in this Section 3.

4. Certain Responsibilities.

You shall be solely responsible for: (i) all Posted Information you input into the Application; (ii) ensuring that all Posted Information is appropriate in tone and is accurate; (iii) complying with all applicable laws, rules and regulations at all times; and (iv) maintaining all passwords and access codes to the Application, and refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes to access the Application.

5. Viply Rights.

Viply shall be entitled, at its sole discretion, to suspend, restrict and/or terminate, without notice of any kind, Your access to the Application or Your Viply account for any reason. Notwithstanding the foregoing, Viply shall not be required to review or monitor any Posted Information entered into the Application or otherwise submitted by You, and You shall be solely responsible for the veracity and accuracy of all such data, content and information.

6. Term and Termination.

This Agreement shall continue in full force until the earlier to occur of (i) either party providing written or electronic notice of termination to the other party (at which point You shall no longer be entitled to access or use the Application), or (ii) Viply electing to terminate Your access to the Application, with or without notice (the "Term"). For purposes of clarity, You are entitled to terminate your Viply account at any time. Upon termination of this Agreement for any reason, You shall no longer be entitled to access or use the Application or any other non-public portions of the Website. In addition to the foregoing, in the event that Viply determines, in its sole and absolute discretion, that You have breached this Agreement, threatened to breach this Agreement, committed any fraud or deception, breached any Viply policy in effect from time to time or otherwise failed to perform to the standards required of Viply, Viply shall be entitled, at its discretion and in addition to any other remedies it may have hereunder and/or at law, to terminate, cancel or suspend Your access to the Application, in each of the foregoing cases at any time and for any period of time. Viply shall not be responsible for the return of any Posted Information of any kind to You upon any termination of this Agreement or suspension of Your access to the Application, including without limitation any information input into the Application by You. Sections 3 – 27 of this Agreement shall survive any termination of this Agreement.

7. Third Party Services and Content.

The Services may be made available or accessed by Viply users (“Customers” or “Your Customers”) in connection with third-party services and content (including advertising) that Viply does not control. You acknowledge that different terms of use and privacy policies may apply to Viply users and your use of such third-party services and content. Viply does not endorse such third party services and content and in no event shall Viply be responsible or liable for any products or services of such third party providers. Additionally, Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry Limited will be a third-party beneficiary to this contract if Viply users or you access the Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. You acknowledge that Viply users and your access to the Services using these devices is subject to terms set forth in the applicable third-party beneficiary's terms of service.

8. Promotional Codes.

You may, create promotional codes that may be redeemed for Account credit or other features or benefits related to your Services via Viply Application, subject to terms that Viply establish on a per promotional code basis ("Promo Codes"). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by Viply; (iii) may be disabled by Viply at any time for any reason without liability to Viply; (iv) may only be used pursuant to the specific terms that Viply establish for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Viply reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that Viply determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.

9. Intellectual Property.

(a) General Ownership.

All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. For purposes of clarity: (i) as between You and Viply, You shall be deemed to be the sole owner of all Posted Information entered into the Application or otherwise posted by You; and (ii) Viply is the sole owner of the name "Viply" and “Viply Pass” as well as the Website, the Application, and all source code, object code, software, content, copyrights, trademarks, patents and other intellectual property related thereto or included therein. All suggestions, recommendations, bug-fixes, error-fixes or other communications from You to Viply regarding the Application or the Website shall, upon submission to Viply, be owned solely and exclusively by Viply. In addition, Viply shall be entitled to post feedback at the Website and within the Application (and/or allows others to do so), both positive and negative, regarding any user or Merchant account. You acknowledge and agree that the applicable supplier(s) of any third party software included within the Application shall own all worldwide rights, title and interest in and to such third party software (and any intellectual property rights therein), subject to such suppliers' license, if any, of such third party software to Viply.

(b) Use of Posted Information.

In exchange for Your use of the Website and/or the Application, You hereby grant to Viply an unlimited, perpetual, irrevocable, fully-paid, transferable, assignable, sub-licensable, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, commercially exploit, repurpose, perform and display any and all Posted Information You post to the Website, submit to Viply or post through the Application, alone or as part of other works in any form, media or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees, in connection with Viply performing the services described herein. Finally, You irrevocably waive, and cause to be waived, against Viply and its users any claims and assertions of moral rights or attribution with respect to Your Posted Information. Viply shall be entitled to display advertising, notifications and/or any other content at locations of its choosing within the Website and/or Application, including without limitation adjacent to Your Posted Information.

(c) You represent and warrant that: (i) you either are the sole and exclusive owner of all your Merchant Content (“Your Content”) or you have all rights, licenses, consents and releases necessary to grant Viply the license to your Merchant Content as set forth above; and (ii) neither the Merchant Content nor your submission, uploading, publishing or otherwise making available of such Merchant Content nor Viply's use of the Merchant Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You agree to not provide Merchant Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, fraudulent or otherwise offensive, as determined by Viply in its sole discretion, whether or not such material may be protected by law. Viply may, but shall not be obligated to, review, monitor, or remove Merchant Content, at Viply's sole discretion and at any time and for any reason, without notice to you.

10. Marketing.

Viply reserves the right to use your (“Merchant”) name in promotional, marketing and presentation materials for the purpose of marketing Viply’s Services and promoting Viply, and in communications with investors and prospective investors and with third parties with which Viply does, or seeks to do, business.

11. Payment Processing.

Viply uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing. By signing up with Viply you understand that you also enter into the Payment Services Agreement (PSA) with Braintree and its sponsoring bank, in order for you to use Braintree's payment processing services. The PSA is available at www.braintreepayments.com/agreements/merchant. By accepting this Agreement, you agree: (a) that you have downloaded or printed the PSA, and (b) that you have reviewed and agree to the PSA. Please note that Viply is not a party to the PSA and that you, Braintree and Braintree's sponsoring bank are the three parties to the PSA and that Viply has no obligations or liability to you under the PSA. If you have questions regarding the PSA, please contact Braintree at 877.434.2894.

12. Refund Policy & Chargebacks

You acknowledge that Viply products and services are non-tangible and irrevocable digital goods. No refunds will be given after any purchases, delivery and use of Viply’s Services. Each purchase of a digital pass through Viply shall be deemed a final, non-exchangeable, non-refundable sale.

In the unlikely event there is a problem with one of the products or services, or, if a user (“Customer”) experiences any difficulty with a purchased product or service, within your Viply account, or, if the user’s credit card is stolen (claiming fraud), disputes a charge, the user is to notify Viply immediately at support@viplypass.com. In these special circumstances, Viply may determine if to refund the individual purchaser’s (“User” or “Customer”) credit card for the full amount of their ‘pass product’ purchased via your account within 30 days. In these instances, you accept, that Viply has permission to debit your bank account, or your Viply account, or charge your credit card on file, or you will be invoiced for the specified amount to be credited back to the user, including Viply fees. In cases where a user disputes a charge (“Chargeback”), or a refund is given by you to the user, you will be charged the specified amount, including Viply fees, and you will also be charged an additional $20 fee for each chargeback or disputed incident, which may be debited from your bank account, or taken from your Viply account, or charged on your credit card, or invoiced to your business for payment within 15 days of receipt.

13. Collection and Payment Terms

(i) Viply will facilitate payment of the applicable Charges on behalf of you (“Merchant” or “Third Party Provider”), as such your limited payment collection agent, using the preferred payment method designated in the user’s Account, and will send the user a receipt by email.

(ii) You acknowledge that users (“Users” or “Customers”) understand that use of the Services may result in payments by them (“users”) for the services they (“users”) receive from you, the Third Party Provider ("Charges"). After users have received services obtained through their (“users’) purchase or use of the Service, Viply will facilitate payment of the applicable Charges on behalf of you, as such you, the Third Party Provider's limited payment collection agent, using the preferred payment method designated in the user’s Account, and will send the user a receipt by email. Payment of the Charges in such manner shall be considered the same as payment made directly by the user to you. Charges will be inclusive of applicable taxes where required by law. Charges paid by the user are final and non-refundable, unless otherwise determined by Viply. If the user’s primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, the user agrees that Viply may, as your limited payment collection agent, use a secondary payment method in the user’s Account, if available.

(iii) Viply reserves the right to establish, remove and/or revise Charges for any or all aspects of the Services at any time in Viply's sole discretion. Viply will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. Viply may from time to time provide certain users with promotional offers and discounts that may result in different Charges for the same or similar Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. This payment structure is intended to fully compensate the Third Party Provider for the services provided.

14. Fees, Taxes, & Payment Frequency

(i) You understand and agree that the minimum you can charge a user per pass product is $1.00, unless you are offering a ‘free’ or ‘no charge’ pass product. You and Viply agree to split all sums received from user payment transactions for use of Viply Application and Services. You agree that Viply will receive an agreed upon percentage (%) + fee per individual pass or transaction on all billable products and Services within your Viply account. Viply reserves the right to amend the fees payable for the Viply Services at any time upon thirty (30) days’ prior notice to you. You understand that you will be notified by Viply via electronic mail notification or other reasonable means on Viply’s fee schedule changes and agree that this change notification is binding. You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of Viply Services.

(ii) You agree to supply Viply with your federal tax ID number (“Merchant” federal tax ID number) and your (“your Merchant”) bank account and routing information. You understand that all transactions (“products sold”) within your Viply account are collected, batched and deposited automatically via direct deposit into your designated bank account. You accept Viply’s policy of holding funds between 1 to 10 business days (from the day of the initiated user transaction / purchase) to address possible disputes, chargebacks and user fraud. All undisputed transactions will be released and automatically deposited into your designated bank after the holding period.

(iii) You understand that when you enable the ‘Offset Purchase Fees’ field within your account on Viply’s platform, that Viply automatically adds its fees, plus a nominal uplift fee, to the purchase price of each individual pass or transaction.

15. Training

Viply provides standard training and consultation of its Viply Programs and Merchant account use, however, in the event of a complex program roll out (including those that may require third party or outside technical support to complete the program roll out), Viply will provide up to one hour of such training, consultation and technical support. Support exceeding one hour may be billed at cost to the Merchant at the discretion of Viply.

16. Use of Customer and User Data by Viply

Viply reserves the right to gather and store data regarding Viply users or your users (“Merchant Customers” or “Customers”) who sign up for and interact with your Services through the Viply App, Your Facebook page or other Program Sites, or respond to your Deal Offers through the Viply Application or Website. Such data may include the your Customer’s use of your Viply Services and responses to Deal Offers, including (i) the personal information submitted by your Customers (e.g., telephone number, email address, zip code, birthdate, or other registration information ("Customer or User Personal Information"); optional information such as name, gender and other information) and (ii) such customers’ responses to Notes and Deal Offers (whether from you or another client of Viply), enrollment in Access Pass Programs (of you and/or other Viply clients) and other habits of such customers or users. You acknowledge that all such customer data is owned exclusively by Viply. Viply may use such information to generate reports and analyses based on such data, including pattern recognition and benchmarking against data from other clients of Viply and their customers and other information available from third parties. Information about your Customers gathered by Viply may also be used by Viply for contacting or notifying, including marketing to, your Customers or allowing others to do so. If Viply uses information about individuals that is gleaned solely from one or more other client’s participation in Viply’s services and from publicly available sources (including commercially available mailing lists), such individuals shall not be considered your Customers for purposes of the preceding sentence, whether or not they are also customers of yours.

17. Use of Customer and User Data by You (“Merchant”)

You may use data relating to your Customers obtained through the use of the Services solely to market your or partner goods and services to your Customers through the Services. You will not provide any information obtained through the use of the Services, including any information that would personally identify, or facilitate personal contact with, any of your Customers (e.g., name, email, telephone number, zip code, birthdate, gender or other identifying information) to any third party other than (i) to an acquirer in the event of a sale or merger of your business, provided that the acquirer agrees to maintain and use such data regarding your Customers in accordance with Viply’s Privacy Policy (ii) as necessary to fulfill an order for such customer, (iii) to service providers or partners of yours who need to know such information and are obligated to keep it confidential, or (iv) if required by law or subpoena, in response to an inquiry from law enforcement authorities or if you believe the release of such information is necessary to address or prevent illegal or harmful activity.

18. Notification & Campaign Platform - Terms of Use

The following terms shall, in addition to all of the other terms set forth in this Agreement, govern your use of Viply's "Campaign" or “Notification” platform (the "Campaign Platform"), which, at a general level, allows you to communicate with Viply users and your customers.

General Rules

You shall, as a condition to making any use of the Campaign Platform, be required to follow these rules:

(i) You will not send Spam. While you are responsible for making yourself of aware of current anti-SPAM and similar regulations that may be in effect from time to time, as a general rule, you should assume that if you send people mass email without their permission, you’re spamming.

(ii) You won’t violate Viply’s Acceptable Use guidelines, established below, as it may be in effect from time to time, which is part of this Agreement. If you violate any of these rules, Viply, in addition to any other remedies that Viply may have hereunder or otherwise, may suspend or terminate your account.

Compliance with Laws

You represent and warrant that your use of the Campaign Platform will comply with all applicable laws and regulations. You’re responsible for determining whether Viply’s services are suitable for you to use in light of any regulations such HIPAA, GLB, EU Data Privacy Laws and/or other laws. If you are subject to regulations (such as HIPAA) and you use the Campaign Platform or any other Viply service, then Viply will not be liable if any such service does not meet those requirements.

Acceptable Use

You shall refrain from using the Campaign Platform to send anything offensive, to promote anything illegal, or to harass anyone. Not in limitation of the foregoing, you may NOT send:

  1. Pornography or other sexually explicit Emails
  2. Messages or Emails offering to sell illegal goods or services
  3. Messages or Emails that violate CAN-SPAM Laws or any other applicable laws or regulations
  4. Send Spam (as noted above).
  5. Share your password.

You acknowledge that you may NOT:

  1. Use any of the Campaign Platform to create a competing product.
  2. Import or incorporate any of this information into any lists, messages, emails or uploads to our servers: Social Security numbers, passwords, security credentials, or sensitive personal information of any kind.
  3. Send any messages through the Campaign Platform that are not appropriate for its intended use.
  4. Use an outside unsubscribe process.

19. Confidentiality & Non-Solicitation

You agree to treat as confidential all confidential information of Viply, not to use such confidential information for any purpose other than to the limited extent necessary to use the Application and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, You shall use at least the same degree of care which You use to prevent the disclosure of Your own confidential information of like importance to prevent the disclosure of confidential information disclosed by Viply, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. In addition, during the Term and for a period of one year thereafter, You shall refrain from directly or indirectly soliciting, enticing, persuading or inducing any individual who is then, or has been within the 1-year period prior to the applicable date, an employee of Viply to terminate employment with Viply or to become employed by or enter into contractual relations with any other individual or entity.

20. Disclaimers.

(a) No Warranties.

Except as explicitly set forth herein, neither Viply, its affiliates, third party providers or any of any such party's equity holders, directors, officers, employees, agents, suppliers, licensors nor the like, makes any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Website or the Application will be error-free, (c) as to a minimum level of uptime for the Application or the Website, or (d) as to the results that may be obtained by You by entering into this Agreement and/or using the Application. You agree and acknowledge that the Application and Website are licensed and/or provided hereunder on an "as is" basis. In addition, You hereby agree and acknowledge that: (i) Viply shall not be responsible for any actions taken by any other party using the Application or reviewing any of Your Posted Information; (ii) Viply does not recommend or endorse any third parties hereunder, and makes no representations or warranties whatsoever regarding any such third party; (iii) Viply is not a party to any transaction between you and any store, retailer or business with which Viply has a business relationship, and as such, any disputes regarding purchases, rewards and/or any other aspect of any transaction or other commercial dealings is solely between You and such third party; (iv) Viply is not responsible for any other party's compliance with applicable laws, rules or regulations; (v) Viply's services are administrative in nature and Viply is not responsible for ensuring that any third party honor any obligations such third party may have towards You; (vi) Viply shall not, under any set of circumstances, be responsible or liable for an content, text, photographs and/or other Posted Information, including any Posted Information which may violate applicable law and/or a third party's intellectual property rights; and (vii) the Application and/or Website may not function properly or as intended at times.

(b) Network Access of Website or Application and Devices

You are responsible, at your sole cost and expense, for providing all equipment necessary to access the Internet, the Website and/or the Application. While it is Viply's objective to make the Website and Application accessible at all times, the Website and/or Application may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, various portions of the Website or Application may operate slowly from time to time. You understand and acknowledge that due to circumstances both within and outside of the control of Viply, access to the Website and/or the Application may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the foregoing, Viply shall not be liable in any way for any delay in responding to an inquiry or question forwarded by You or the effects any delay or unavailability may have on You. You and Viply users are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Viply does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

YOU AGREE THAT VIPLY SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WEBSITE AND/OR APPLICATION AND THAT YOU SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE WEBSITE AND/OR APPLICATION.

21. Limitation on Liability.

VIPLY SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE APPLICATION OR WEBSITE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, VIPLY'S TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING HEREUNDER OR RELATED HERETO SHALL NOT EXCEED $50.

22. Force Majeure.

Viply shall not be liable to You for failure or delay in performing any obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control.

23. Indemnification

You hereby agree to indemnify Viply and its Associated Persons, and to hold them harmless from and against, any and all losses, damages, costs or expenses, including reasonable attorneys’ fees, arising out of any claim by a user or third party resulting from the operation of your business (including but not limited to goods and services sold or provided by you) or from an actual or alleged breach of or failure to comply with any of your obligations, representations, warranties or covenants set forth in this contract.

24. General Terms.

The following terms and conditions govern general use of the Website:

(a) You agree to abide by all restrictions displayed on the Website and/or within the Application, as and when they are updated from time to time, including, without limitation, the rules in this Section 16. Viply reserves the right to remove any content You post to the Website or within the Application, block the sending of any inquiry or other content Viply deems inappropriate in its sole discretion, and may terminate all access to the Website and/or Application at any time in its sole discretion for any or no reason. While Viply reserves the right to monitor all postings and/or content posted at the Website and/or within the Application, it has no obligation to do so.

Permitted Uses. You may use the Website only in good faith for the purposes described herein. You may download and print out portions of the content from the Website for non-commercial purposes provided that you follow the rules in this Agreement. You may not use the Website or Application, or any business listings, contract information or other content, to promote another business or commercial venture.

Distribution. Except as expressly permitted under other provisions of this Agreement, You may not modify, reproduce, duplicate, copy, photocopy, print, republish, display, translate, transmit, distribute, sell, resell, rent, lease, loan, exploit, reduce to any electronic medium or machine-readable form, or otherwise make available in any form or by any means all or any portion of the Website, the content or any information or materials retrieved from either of them, including, without limitation, graphics and logos, in whole or in part, for any purpose.

Derivative Works. You may not create compilations or derivative works of the Website or the Application, the Website or Application content or any other materials from the Website or Application.

Proprietary Notices. You may not remove, change or obscure and You must retain on all copies of the content You download any copyright notice or other proprietary notice, Privacy Policy, legal disclosures or terms of use contained in the content or on the Website.

Infringement. You may not use the Website, Application, the Website and/or Application content or any other materials from the Website or Application in any manner that may infringe upon any copyright or other intellectual property right, proprietary right, or property right of Viply or any third party.

Information Distribution. You may not use the Website and/or Application or any communications service, chat room, message board, blog, forum, newsgroup, or other interactive service that may be available to You on or through the Website or Application to transmit, upload, post, distribute or facilitate distribution of, or otherwise make available any information or content, including text, communications, software, images, sounds, data or other information, that:

  • is false;
  • contains explicit or graphic descriptions or accounts of sexual acts, including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals;
  • includes any inside information and/or proprietary or confidential information learned or disclosed under nondisclosure agreements;
  • You are restricted from using under any law;
  • infringes upon the intellectual property rights of any third party; or
  • contains software viruses or any other computer code, files or programs that are designed or intended to disrupt, damage, or limit the functions of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any other party.

Other Prohibited Uses. You may not use the Website or Application for any purpose that:

  • is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, or otherwise violates Viply's rules or policies;
  • victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability, or any other classification protected by law;
  • invades any person's or entity's privacy or other rights;
  • constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
  • misidentifies You or impersonates any person or entity, including, without limitation, any employee or representative of Viply, or falsely states, implies, or otherwise misrepresents Your affiliation with a person or entity by, for example, pretending to be someone other than You or pretending to represent a company or organization that You are not affiliated with or authorized to represent; or
  • could otherwise reasonably be deemed or viewed to be unethical, illegal or offensive.

Others' Personal Information. You may not knowingly solicit or collect personal information from a child 18 years old or younger for Services that require a user to be 18 years of age or older.

Harm to Minors. You may not take any action on the Website or within the Application or use the Website and/or Application content to harm minors in any way.

Solicitation. You may not use the Website or Application or any Website or Application content in a manner that violates any state or federal law regulating commercial e-mail, facsimile transmissions or telephone solicitations.

(b) The Website, the Application and the Website and Application content may contain and/or provide access to content provided by third parties, including, without limitation, information, dialogue, opinions, stories, advice, statistical data, text, software, music, sound, photographs, graphics, video, messages, and other materials, whether publicly or privately posted to or e-mailed or otherwise transmitted through the Website or Application ("Third Party Content") that may include content You find to be offensive, indecent or objectionable. The third party from whom or which any such Third Party Content originates is solely responsible for it and Viply assumes no responsibility to verify, has no control or influence over, makes no representations regarding, and does not guarantee the accuracy, integrity or quality of any Third Party Content. Accordingly, Viply has no liability of any kind to You or any other person relating to any Third Party Content, including, without limitation, mistake, misstatement of law, omission, falsehood, defamation, obscenity, pornography, profanity, opinion, representation and any other content contained in the Third Party Content or for any loss or damage of any kind incurred as a result of the use of any Third Party Content. Statements of opinion and commentary in Third Party Content are those of the third party and, unless Viply expressly states in writing to the contrary, Viply neither endorses nor adopts as its belief any such statements. Viply may provide information in articles Viply posts or links to through the Website only for educational and general informational purposes and not as professional advice. Viply has made no attempt to verify any information contained in any such articles.

(c) As a convenience to You and other Website visitors, the Website may contain links to websites that are owned and operated by third parties that are not affiliated with Viply. When You use these links, You will leave the Website and Viply will have no ability to protect Your interests. You visits linked websites at Your own risk and it is Your responsibility to take any protective measures to guard against viruses and other destructive elements. Viply is not responsible for and, unless it expressly states otherwise in writing, makes no warranty or representation regarding and does not endorse any linked website or any service, product or information provided on or through the linked website.

25. Copyright Infringement.

Viply respects the intellectual property of others, and asks You, all users and merchant accounts to do the same. Material available on or through other websites may be protected by copyright and the intellectual property laws of the United States and/or other countries, and the terms of use of those websites, and not the this Agreement, govern Your use of that material. It is Viply's policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users and merchant accounts who may infringe or repeatedly infringe the copyrights or other intellectual property rights of Viply and/or others.

If You believe that Your intellectual property or work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide Viply's Agent for Notice with the following information in English (Your "Notice"):

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  • a description of the copyrighted work or other intellectual property that You claim has been infringed;
  • a description of where the material that You claim is infringing is located on the Website or within the Application;
  • Your address, telephone number, and email address;
  • a statement by You that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
  • a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

In some circumstances, in order to notify the individual or entity who or which provided the allegedly infringing content to which Viply has disabled access, Viply may forward a copy of a valid Notice including name and email address to such individual or entity. Viply's Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:

By mail:

Copyright Agent
c/o Viply, LLC.
P.O. Box 153
Manasquan, NJ 08736
By phone
(732) 800-1771
By email: 
support@viplypass.com

26. Arbitration

(a) Rules and Governing Law

Both parties acknowledge that any arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

(b) Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175). The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New Jersey and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be settled by binding arbitration between you and Viply, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Viply are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Viply otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.

(c) Arbitration Location and Procedure

Unless you and Viply otherwise agree, the arbitration will be conducted in the county where Viply’s headquarters is located. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Viply submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

(d) Arbitrator’s Decision

The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim.

(e) Fees

You are responsible to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.

27. Miscellaneous.

Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of New Jersey, without reference to conflict of law principles, and all disputes arising hereunder or in connection with this Agreement, the Website and/or the Application shall be resolved in the appropriate Federal or state court located solely and exclusively in Monmouth County, New Jersey. You hereby consent to exclusive jurisdiction in Monmouth County, New Jersey, and agree not to raise any defense of forum non conviens or any similar defense. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by You without Viply's prior written consent. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.