Enterprise & Professional - Terms and Conditions

This Terms and Conditions Agreement (hereinafter "Terms and Conditions") explains how the RepSpark Systems (hereinafter “RepSpark”) products, services, software and website located at www.repspark.com  may be accessed and used and the terms and conditions that govern the legal obligations of the parties for use of the Services as hereinafter defined:

PLEASE REVIEW THE TERMS AND CONDITIONS CAREFULLY AS THEY HAVE SIGNIFICANT LEGAL CONSEQUENCES. BY CLICKING ON ANY LINK, USING THE REPSPARK SERVICES OR LOGGING ON AS A USER, YOU ARE ACKNOWLEDGING AND AGREEING THAT:

• YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND TO THE TERMS AND CONDITIONS SET FORTH HEREIN.
• YOU AGREE TO THE COLLECTION AND USE OF YOUR INFORMATION AS SET FORTH IN THE PRIVACY POLICY ON THE REPSPARK WEBSITE.
• YOU AGREE AND CONFIRM THAT IF YOU ACCESS OR USE THE SERVICE ON BEHALF OF A REPSPARK OR OTHER ENTITY, YOU HAVE AUTHORITY TO BIND SUCH REPSPARK AND/OR ITS AFFILIATES. IF YOU DO NOT HAVE AUTHORITY OR DO NOT AGREE WITH THESE TERMS, DO NOT ACCESS THE WEBSITE OR USE THE SERVICES.
• REPSPARK RESERVES THE RIGHT TO MODIFY OR REVISE THESE TERMS OR PRIVACY POLICY TERMS AT ANY TIME. THE DATE OF REVISIONS TO THESE TERMS AND CONDITIONS WILL APPEAR AT THE END OF THIS DOCUMENT. YOU SHOULD VISIT THE SITE PERIODICALLY TO CHECK FOR UPDATES. IF MATERIAL CHANGES ARE MADE TO THE TERMS AND CONDITIONS, YOUR CONTINUED USE OF THE SERVICE AFTER THE EFFECTIVE DATE OF THE REVISIONS WILL CONSTITUTE YOUR ACCEPTANCE OF THE REVISIONS. NO REVISIONS OR CHANGES TO THE TERMS AND CONDITIONS WILL BE BINDING ON REPSPARK UNLESS IT HAS AGREED TO SUCH CHANGES IN WRITING.

1. Definitions.
a) “Client” means an individual or RepSpark that has ordered the Services in accordance with the Subscription Agreement and these Terms and Conditions.
b) “Customer User” shall mean a third-party retail account that may be approved and granted access to the Client’s account to view, purchase, order the Client’s products or to interact with the Client. Customers Users that access the Services to view digital catalogs, assortments, place orders under the Client’s account do not count toward the Client’s authorized User allocation.
c) “Services” means RepSpark’s online business software, mobile applications and modules as described in the Subscription Agreement.
d) “Professional Services” means the implementation consulting, customization, integration, and training services provided for You.
e) “Support Service” shall mean any technical support or other assistance rendered by RepSpark.
f) “Subscription Agreement” shall mean the document setting forth the specific pricing, modules, terms, number of authorized Users and Services to be provided to the Client.
g) “Subscription Fees” shall mean the compensation to be paid to RepSpark for the Services, allocated Users or any additional services requests, upgrades or additions made to the Subscription Agreement.
h) “User” means an individual or third party that is authorized to use the Services provided to Client, in accordance with the authorized number of Users contained in the Subscription Agreement and these Terms and Conditions. Users may include employees, principals, sales representative, marketing staff or other authorized agents of the Client. Client is responsible for approving Customer User accounts to allow access the Client’s product information and account.

2. Services Provided. RepSpark will provide the Client with the Services described in the written Subscription Agreement and Statement of Work which will be submitted to RepSpark prior to the commencement of the Services. Subject to acceptance of the Subscription Agreement and Terms and Conditions and the payment of the Subscription Fees, RepSpark will provide the Client with a non-exclusive, revocable, non-sublicensable, nontransferable, limited license to access and use the software and Services. Subject to the terms hereof, RepSpark will provide the Client with reasonable technical product and Support Services in accordance with RepSpark’s standard terms set forth in Schedule A.

3. Subscription Information. The initial term, and any renewal periods, shall collectively be referred to herein as the “Term.” Client shall be entitled to utilize Services for the duration of the Term as set forth in the Subscription Agreement. Unless otherwise provided in the Subscription Agreement, the Subscription Agreement shall automatically renew for additional one (1) year Terms, unless either party provides the other Party with a written request to terminate the Subscription Agreement at least ninety (90) days prior to the end of the then current Subscription Agreement Term.

a) Client may at any time during the Term purchase additional User rights in increments of five (5) or more Users as stated in the Subscription Agreement. Any additional User subscriptions will automatically renew at the end of the then existing Term.
b) Except for a material breach by RepSpark, Client may not terminate the Subscription Agreement during the Term and shall be liable for the timely payment of the fees required therein.
c) RepSpark grants Client a non-exclusive, revocable, non-transferable, license to access and use the Services as permitted by the Subscription Agreement and these Terms and Conditions.
d) Client or its Users are prohibited to use or obtain access to another RepSpark client account without the express permission of RepSpark. Client is solely responsible for the use of its account, including the acts or omissions of any authorized User on your account. Client is solely responsible for maintaining its’ User account information and keeping the passwords confidential. Client’s Users should use passwords that are not easily reproduced or common to other Users. Client’s Users should not use the same password that they use to access other unrelated websites, accounts or services. Client must notify RepSpark immediately of any unauthorized use of the Client’s account. RepSpark is not liable for any losses (whether actual, consequential, punitive or foreseeable) caused by any unauthorized use of the Client’s account. By providing RepSpark with your Client information and approved User names and/or email address, Client consents to receive notices sent to those email address(es). RepSpark may also use the email address(es) for Service updates, enhancements, changes or revisions to the Terms and Conditions, marketing, promotions or special offers. Client may opt out or change your email preferences by notifying RepSpark in writing of its preferences, with the understanding that opting out of receipt of communications may result in not receiving email messages regarding Service updates, Service changes, enhancements, improvements or special offers.

4. Fees. In consideration of the Services to be performed by RepSpark, the Client agrees to compensate RepSpark for the applicable Subscription, Professional Services and User fees described in the Subscription Agreement and terms therein. If Client’s use of the Services exceeds the authorized Users allocated in the Subscription Agreement or otherwise requires the payment of additional fees (per the terms of the Subscription Agreement), Client shall be billed for such usage and Client agrees to pay the additional fees in the manner provided herein. Client is not entitled to refunds, offsets or rebates of the Subscription Fees or cancellation of the Subscription Agreement prior to the expiration date of the Subscription Agreement Term.

5. Fee Changes. All Subscription Fees will remain fixed for the initial Term of the Subscription Agreement. The per User fees during any renewal Term can be up to 5% upon renewal without written notice.  Any price increase over five percent (5%) will not be allowed unless RepSpark has given the Client at least thirty (30) days prior written notice of a price increase before the expiration date of the then current Term. Any price increase will not exceed ten percent (10%) of the Subscription Fee or User fees for the applicable Services in the immediately prior Term, unless the pricing in the prior Term was designated in the Subscription Agreement as promotional or one-time applicable fee. RepSpark reserves the right to change hourly rate of additional services to meet current industry standards which are not subject to the five percent (5%) increase limitation.

6. Payments: Full payment for any invoice issued by RepSpark for Subscription Fees pursuant to the Subscription Agreement must be received by RepSpark within thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including attorney fees and costs. Client shall be responsible for payment of all taxes associated with Services, excluding taxes based on RepSpark’s net income. In addition to any other right or remedy provided by law, if Client fails to pay the Subscription Fees when due, RepSpark may (i) treat such failure to pay as a material breach of the Subscription Agreement, and after giving Client thirty (30) days’ notice to cure such breach, (ii) cancel the Subscription Agreement and seek legal remedies for the payment of the remaining balance due on the remaining Term of the Subscription Agreement.

7. Expenses: Upon the request of the Client requiring any in person or onsite consultations, Client shall, within thirty (30) days after receipt of any invoice, pay RepSpark’s pre-approved travel and incidental expenses, including meals, telephone charges, printing and shipping costs.

8. Access to Data and Computer. In the event of any Service interruption requiring corrective action on the part of RepSpark, Client agrees to provide RepSpark with printouts from the software, programs and/or of data evidencing a programming or function error. Client further agrees to provide RepSpark with access to Client’s computer, software and associated hardware to enable RepSpark to investigate and duplicate the issue, determine the cause of such issue, and confirm that any corrective action has resolved the issue.

9. Mobile Application Access Services.

RepSpark may provide access to the Service via an application (“RepSparkGo App”) accessed by tablet or other mobile device such as an Apple or Android smart phone. To use the RepSparkGo App, the Client and its Users must download the RepSparkGo App to a compatible mobile device. RepSpark makes no representations or warranties that any devices used by Client or its Users will be compatible with the RepSparkGo App. Client and its Users must comply with any terms of service of the Apple Store or Google Play in order to download the RepSparkGo App. Upon downloading and using the RepSparkGo App, Client and its Users are agreeing to these Terms and Conditions and RepSpark grants Client a non-exclusive, non-transferable, revocable license to use the RepSparkGo App to use the Services. RepSpark retains the right to terminate or cancel any use of the RepSparkGo App. RepSpark reserves all rights not otherwise granted herein.

Client may not: (i) allow other non-authorized or non-allocated third party users access to Client’s account or subscription information to access or use the RepSparkGo App; (ii) modify, reverse engineer, rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Services provided by the RepSparkGo App to any third party that is not an authorized or allocated User or the Services subject to a Subscription Fee; (iii) make copies of the RepSparkGo App; (iv) intentionally attempt to circumvent, disable, damage or otherwise interfere with any security features of the RepSparkGo App that prevent unauthorized use of the RepSparkGo App. Client acknowledges that RepSpark may from time to time provide updated versions of the RepSparkGo App, and Client consents to the automatic upgrade of the same to the Client’s and its Users mobile device(s).

10. Data Exchange Service. RepSpark is a data aggregator of information provided by third parties and its’ Clients. RepSpark does not review any content or other information for accuracy nor does it provide editing or control over the information, statements, services, products, pricing, offers or other content provided by third parties or Client’s, provided however, that RepSpark reserves the right to review, edit or remove any information or content that violates RepSpark’s Terms and Conditions or any federal, state or agency laws, rules or regulations. The Services provided by RepSpark are solely for the purpose of the exchange of information between Client and its Users and Customer Users for the purpose of promoting or selling the Client’s products and providing material and information the Client desires to make available to its Users and Customer Users. Any purchase, sale, commission or other transactions between the Client and a User or Customer User shall be subject to a separate agreement between the respective Client, User and Customer User. RepSpark is not a party to any such transaction and it shall have no liability to the Client for such transactions. The Client and User or Customer User shall make all reasonable inquiries regarding the products, materials, packaging, pricing, deliveries, costs, ownership, intellectual property rights and such other information to the transaction and shall comply with all import/export laws pertaining to the purchase, sale and delivery of any products accessed through RepSpark’s website, app, software or Services, including but not limited to regulations of the Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency. Client shall not export, or allow the export or re-export of the Service in violation of any such laws or regulations. By using the Service, Client agrees, represents and warrants that Client is not subject to or located in any country that restricts or otherwise prohibits the transactions contemplated with the use of the RepSpark Services or website, software or app. RepSpark does not generate any Client information or material, and makes no representations or warranties regarding any Client information available to Users, Customer Users or third parties. RepSpark is not a party to any purchase or sale of Client’s products and makes no representations as to the accuracy of any Client information posted or provided on the RepSpark website or app. RepSpark may track and analyze information generated through the RepSpark software system website and app in connection with the Service for the purpose of gathering information to improve the RepSpark software and Services, which may include, but is not limited to Client product information, customer interactions, order information, profile views, customer click through, User information, Customer User information and website link utilization. RepSpark may share such non-confidential information or redact identifying information from confidential information with third parties to fulfill some or all of the Services for the purpose of increasing the effectiveness and efficiency of the RepSpark software and Services. For any third party integration, RepSpark may share brand data that originates in the third party and is passed through the platform and sent back to the third party. Any links to third party websites are not controlled by RepSpark and RepSpark is not responsible for any third-party services, information, content, fees, costs to be incurred or technical issues that may arise from the use of such third-party websites. RepSpark does not warrant or represent that the third-party website, products or services will function as intended and Client expressly waives any liability resulting from its use of any third-party website.

11. Proprietary Rights. User acknowledges and agrees that corrected or replacement software and associated documentation remain the property of RepSpark and constitute a trade secret of RepSpark. Further, all content, logos, data, graphics, data compilations, documents, software, images, icons and use of the foregoing are the trade dress, copyright, trademarks and intellectual property of RepSpark and may not be used by any Client, User, Customer User or third party without the prior written authorization of RepSpark, provided however, that the Client may use such information to solicit its customers to use the Services.

12. Representations and Warranties. Client represents and warrants that:

(a) Client has the legal capacity to enter into contracts;
(b) Client’s use of the website, app and Services will comply with all applicable laws and regulations, including without limitation privacy and data protection laws;
(c) Client has all necessary rights, licenses and consents to provide, receive, access and/or use its content and any other content you provide, receive, access and/or use through or in connection with the Service;
(d) Client will disclose its content collection and use practices in a privacy policy that is accessible on any website and in any application, product or service that you use with the Service to collect or receive your content;
(e) Client will provide all required notices, and obtain all required consents, that relate to your use of the Service. Client will allow RepSpark to receive and use Client’s content as permitted herein, including such information relating to (i) third party uses of the websites, applications, or other products transmitted through the use of the Services; or (ii) information pertaining to content received from third parties;
(f) Client has the consent of each and every identifiable person in your content, if any, and the right to use such person’s name or likeness in the manner contemplated by the Service and these Terms and Conditions, and each such person has released you from any liability that may arise in relation to such use;
(g) Client has obtained and are solely responsible for obtaining all consents as may be required by law to post any of your content relating to third parties, and Client is responsible for clearing all rights and paying all licensing fees and other costs and expenses arising in connection with the use of the content;
(h) Client’s content and RepSpark’s use or distribution thereof as contemplated by these Terms and Conditions and the Services will not violate any law or infringe or misappropriate any rights of any third party, including but not limited to any intellectual property rights and privacy rights;
(i) RepSpark may exercise the rights to your content granted under these Terms and Conditions without liability for payment of any third-party fees, residuals, payments, or royalties; and
(j) to the best of your knowledge, Client’s Content and other information that you provide to RepSpark is truthful and accurate.

13. Confidentiality. RepSpark, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use, divulge, disclose, or communicate in any manner, any information that is proprietary or confidential to Client. RepSpark and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will survive the termination or expiration of the Subscription Agreement. Confidential information does not include: (a) any information previously known to RepSpark; (b) information that is or becomes generally known to the public, from no act or breach of confidentiality requirements; (c) is disclosed to RepSpark by a third party not subject to disclosure restrictions; or (d) is independently developed by RepSpark confirmed by written documentation pre-dating the date of disclosure or access to the confidential information.

Client shall not use any confidential information of RepSpark other than for the permitted use of the Services as set forth in the Subscription Agreement or these Terms and Conditions. Client shall notify RepSpark in writing immediately upon discovery of any unauthorized use or disclosure of confidential information and shall cooperate with RepSpark to restrict or cease the disclosure and use of the confidential information. If Client is legally compelled to disclose any of the confidential information, Client will (i) immediately notify RepSpark prior to such disclosure to allow RepSpark an opportunity to seek a protective order to prevent such disclosure, and cooperate with RepSpark in seeking such protective order use of the confidential information.

RepSpark may, at its sole option, for a period of time after termination or expiration of the Subscription Agreement, retain records, notes, documentation, material, product information, interactions, orders, content, images, price lists and other such information provided by Client during the Term of the Subscription Agreement, including any confidential or proprietary information of Client. RepSpark shall not be obligated to and does not have the ability to export any such data and information to Client. RepSpark may, at its sole option, and at any time after the termination or expiration of the Subscription Agreement delete or destroy such data and information. Client is strongly encouraged to back up any of its data and information prior to termination or expiration of its Subscription Agreement.

14. Warranties, Disclaimers and Exclusive Remedies

RepSpark warrants that the Services, software and programs will perform in all material respects in accordance with the service policies referenced in the Subscription Agreement and these Terms and Conditions, and the representations of RepSpark during the Client demonstration(s). If the Services, software and programs provided to Client for any given month during the Term were not performed as warranted, Client must provide written notice to RepSpark as specified in these Terms and Conditions no later than five (5) business days after the last day of that particular month, otherwise, Client waives any warranty or service related claims for the preceding month.

RepSpark does not guarantee that the Services, software and programs will perform error-free or uninterrupted, or that RepSpark can correct all Services errors. Client acknowledges that RepSpark does not control the transfer of data over communications facilities, including the internet, and that the service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. RepSpark is not responsible for any delays, delivery failures, or other damage resulting from such interruptions or third party service issues.

For any breach of the above warranties, unless otherwise set forth in the Subscription Agreement, RepSpark will remit a credit to the Client calculated at five percent (5%) of the monthly Subscription Fee for the applicable Services in the month in which the breach occurred. The credit will be provided against any future invoices or fees for Services owed to RepSpark by Client. To the extent not prohibited by law, there are no other express or implied warranties including for merchantability, and fitness for a particular purpose.

RepSpark does not represent, warrant or guarantee that any information, products, content, images or other information provided by Client or made available through the Service is accurate or available when transmitted by the Client, and RepSpark disclaims all liability for the sale of Client’s products on and through the Service. RepSpark does not guarantee that Client’s Users or Customer Users will purchase or find products suitable to their requirements or needs. RepSpark does not warrant the quality or accuracy of the products provided by Client through the Services. RepSpark is not responsible or liable for any acts, errors or omissions of any Customer Users or other third parties accessing Client’s products or content.

THE SERVICE, ITS CONTENT AND THE PRODUCTS OF REPSPARK, PROVIDED TO CLIENT AND ITS USERS, CUSTOMER USERS AND THIRD PARTIES, ARE PROVIDED “AS IS” “WHERE IS” AND “AS AVAILABLE.” EXCEPT AS OTHERWISE PROVIDED HEREIN, REPSPARK DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, RELATING TO THE CONTENT, INFORMATION, IMAGES, DESCRIPTION, PRODUCTS AND/OR SERVICES OF REPSPARK, AND THE PRODUCTS OF THE CLIENT TO ITS USERS, CUSTOMER USERS AND OTHER SUCH THIRD PARTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. REPSPARK MAKES NO GUARANTEE OF THE INFORMATION CONTAINED IN THE SERVICES, PRODUCTS, WEBSITE OR REPSPARKGO APP OR THAT THE INFORMATION IS UP-TO-DATE, ACCURATE OR COMPLETE. REPSPARK DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT LOSS OF YOUR DATA WILL NOT OCCUR OR THAT THE SERVICE MAY EXPERIENCE OUTAGES, INTERRUPTIONS OR INACCESSABILITY AT ANY GIVEN TIME. WHILE REPSPARK EMPLOYS VIRUS PROTECTION AND SECURITY PROTECTION SOFTWARE TO PROTECT THE SOFTWARE AND SERVICES, REPSPARK MAKES NO GUARANTEE, REPRESENTATION OR WARRANTY THAT THE SERVICE OR SOFTWARE WILL REMAIN FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT HAS CONTAMINATING OR DESTRUCTIVE PROPERTIES AND BY YOUR USE OF THE SOFTWARE AND SERVICES, YOU ARE ASSUMING THE RISK OF LOSS BY SUCH CAUSES.

15. Default. The occurrence of any of the following shall constitute a material default under the Subscription Agreement and the Terms and Conditions:

a) Client’s failure to make any required payment when due.
b) The insolvency or bankruptcy of either party.
c) The subjection of any of either party's property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
d) The failure to make available or deliver the Services as reasonably required in the Subscription Agreement or these Terms and Conditions.
e) Any other material breach of the Subscription Agreement or Terms and Conditions.

In the event of any Default, the breaching party shall have thirty (30) calendar days to cure any such breach before the Subscription Agreement may be terminated by the non-breaching party.

16. Digital Millennium Copyright Act Complaints.
RepSpark will not permit the infringement of third-party intellectual property or copyrights and provides the owner of such rights to file complaints for alleged infringement under the Digital Millennium Copyright Act of 1988 (hereinafter “DMCA”). If you believe your copyright or trademark has been infringed, you may notify us of such claims with the following required written information:
(a) Identification of the copyrighted work that has been infringed with a link or other documentation showing owner of the work;
(b) The location of the copyright work on the RepSpark website or software by submission of the url or other identifying information;
(c) The name, address, telephone number and email address of the person or entity making such claim;
(d) an electronic or physical signature of the owner or registrant of the copyright or the agent authorized to act on the owner’s or registrant’s behalf; and
(e) A statement, made under penalty of perjury, that the above information is accurate and that you are the copyright owner, registrant or are a person authorized to act on behalf of the owner or registrant.
Such information should be submitted to:
RepSpark, LLC.
Attn: DMCA Complaints
751 S. Weir Canyon Road
Suite 157/509
Anaheim, California 92808

Email: success@repspark.com Please place “DMCA Notice” in the Subject Header.
FILING A KNOWINGLY FALSE CLAIM YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES UNDER FEDERAL LAW
17. Privacy Notices. In the course of providing the Services, personal information and data may be provided to RepSpark. To understand how we may use and protect that information, please review the RepSpark Privacy Policy located at www.repspark.com/privacy-policy. To the extent that RepSpark processes personal data as a processor on the Client’s behalf, and the personal data relates to individuals located in the European Economic Area or you are established in the European Economic Area, the Service is subject to the requirement of the EU General Data Protection Regulation, which may be reviewed at https://gdpr-info.eu/. RepSpark cannot guarantee that third parties may defeat RepSpark’s security measures, so any personal information or data that is provided to RepSpark is at the Client’s, its Users and Customer Users sole risk and liability.

17. Limitation of Liability
Neither Client or RepSpark shall be liable to the other for any indirect, incidental, special, punitive, or consequential damages. Further, RepSpark’s liability to Client, Users or Customer Users or any third party shall not exceed the total cost of the Subscription Fees paid to RepSpark by Client.

18. Marketing. RepSpark may use Client’s name, trademark, copyright or other intellectual property rights (hereinafter “Client IP Rights”) to identify Client or its products or brand, on RepSpark’s website and/or marketing materials. RepSpark may issue a press release containing Client’s name and Client IP Rights, related to the Services provided pursuant to the Subscription Agreement and these Terms and Conditions. RepSpark shall promptly remove the use of the Client IP Rights after termination or expiration of the Subscription Agreement or upon the written request of Client.

19. Entire Agreement. The Subscription Agreement and these Terms and Conditions contains the entire terms and conditions of the parties, there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of these Terms and Conditions. These Terms and Conditions supersedes any prior Terms and Conditions, written or oral agreements between the parties. These Terms and Conditions are meant to supplement the Subscription Agreement terms, provided however, that in the event of a conflict between the Subscription Agreement and these Terms and Conditions, the Subscription Agreement terms shall prevail.

20. Notice. Any notice or communication required or permitted under these Terms and Conditions shall be sufficiently given if delivered in person or by certified mail, return receipt requested, electronic delivery with delivery confirmation (such as email) to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.

21. Waiver of Contractual Right. The failure of either party to enforce any provision of the Terms and Conditions shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of these Terms and Conditions.

22.  Payment Processing Services. The following specific terms govern your access and use of payments processing solutions (the “Payments Services”), These specific terms, together with the rest of the Terms, the Order Form and Merchant Application shall hereafter be referred to as the “Payments Terms”)

1. 1. Payments Processing; Service Provider.  The Payments Services enable you to integrate with 3rd party payment processors to accept card payments from your customers.  Our role under these Payment Terms is to provide services that facilitate payment for the products you sell and integrate related transactional data with the RepSpark software. As such, RepSpark is acting as a service provider that facilitates payments for the goods and services and not a processor. All card payment transactions submitted through the Payments Services are authorized, processed and settled by the integrated processor.  You are therefore required to enter into a separate agreement with the applicable Processor for the processing of such payment transactions.  

23.  Entire Agreement. The Subscription Agreement and these Terms and Conditions contains the entire terms and conditions of the parties, there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of these Terms and Conditions. These Terms and Conditions supersedes any prior Terms and Conditions, written or oral agreements between the parties. These Terms and Conditions are meant to supplement the Subscription Agreement terms, provided however, that in the event of a conflict between the Subscription Agreement and these Terms and Conditions, the Subscription Agreement terms shall prevail.

24. Notice. Any notice or communication required or permitted under these Terms and Conditions shall be sufficiently given if delivered in person or by certified mail, return receipt requested, electronic delivery with delivery confirmation (such as email) to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.

25. Waiver of Contractual Right. The failure of either party to enforce any provision of the Terms and Conditions shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of these Terms and Conditions.

26. Severability. The invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of any other provision.

27. Arbitration.

a. Any dispute, controversy or claim arising out of or relating to the Subscription Agreement, the Terms and Conditions or the performance by the parties shall be resolved by binding arbitration held in Orange County, California. The Commercial Arbitration Rules of the American Arbitration Association are hereby incorporated by reference. The interpretation and enforceability of this paragraph shall be governed exclusively by the Federal Arbitration Act, 9 U.S.C. § 1-16. If the matter in controversy (exclusive of attorney fees and expenses) shall appear, as at the time of the demand for arbitration, to exceed $50,000.00 then the panel to be appointed shall consist of three neutral arbitrators. One arbitrator shall be appointed by a Party to the dispute and one arbitrator shall be appointed by the other Party to the dispute within thirty (30) days after the commencement of the arbitration proceeding. The third arbitrator shall be appointed by mutual agreement of the two selected arbitrators and shall be experienced in corporate contractual matters relating to transactions of the nature contemplated by the Subscription Agreement. If, however, the matter in controversy (exclusive of attorney fees and expenses) shall appear, as at the time of the demand for arbitration, to be less than $50,000, then one neutral arbitrator shall be mutually agreed upon by the parties.

b. The arbitrator(s) shall allow such discovery as the arbitrator(s) determine appropriate under the circumstances and shall resolve the dispute as expeditiously as practicable. The Federal Rules of Civil Procedure (the "FRCP") are hereby incorporated by reference for purposes of the discovery process; provided that the FRCP may be waived by the parties by written agreement, or by any appointed arbitrator. The arbitrator(s) shall give the parties written notice of the decision, with the reasons therefor set out, and shall have thirty (30) days thereafter to reconsider and modify such decision if any party so requests within ten (10) days after the decision. Thereafter, the decision of the arbitrator(s) shall be final, binding, and conclusive with respect to all parties, including parties who have failed or refused to participate in the arbitration process. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction over the matter.

28. No Joint Venture or Partnership. The Subscription Agreement and these Terms and Conditions are a contract for the provision of the Services noted herein to be rendered only. It does not, and shall not be construed, to create a joint venture or partnership between the parties.

29. Successors and Assigns. The Subscription Agreement and Terms and Conditions shall be binding and shall inure to the benefit of the parties' respective heirs, successors, assigns, executors, or personal representatives.

30. Transfers and Assignment. The obligations of each party to The Subscription Agreement and Terms and Conditions may not be assigned without the written consent of the parties hereto.

31. Governing Law; Venue. The Subscription Agreement and the Terms and Conditions shall be governed and construed according to the laws of the State of California, without giving effect to its choice of law provisions. The parties further agree that proper venue and jurisdiction for any dispute in connection with the Subscription Agreement and Terms and Conditions shall be heard in Orange County, State of California.