Step 1: After you have read this Agreement, scroll down to the bottom of this page using the slider located on the right of this window and click the "I Agree" button;
Step 2: Complete your order information and click the "Submit" button.
THE ONLINE AURICVAULT® SERVICES AGREEMENT
THIS ONLINE AURICVAULT® SERVICES AGREEMENT (the “Agreement”) is entered into by and between Auric Systems International, a division of Appropriate Solutions, Inc., a New Hampshire corporation with its principal place of business at 85 Grove Street, Peterborough, NH 03458 as licensor (“ASI”), and you, individually or as an authorized representative of a company or other entity (“Company” or “You”), only upon the condition that you accept all of the terms contained in this Agreement. Individually, the parties to this Agreement are referred to as “Party” or “party”, and together, the “Parties” or “parties”. This Agreement is effective (the “Effective Date”) on the date ASI acknowledges Company’s completion of the activation process following acceptance of the Agreement terms and conditions.
ASI has developed a tokenization and storage service (“Storage Service”) and a payments passthrough service (“Payments Passthrough Service”), and other value-added services described briefly in this Agreement and more fully described at AuricSystems.com and which may be changed from time to time (collectively, the “Service”).
PLEASE READ THIS AGREEMENT AND INDICATE YOUR ACCEPTANCE BY CLICKING THE “I AGREE” BUTTON AT THE BOTTOM OF THIS PAGE TO AGREE TO ITS TERMS. BY ACCEPTING THIS AGREEMENT, YOU SHALL BE BOUND BY ITS TERMS. YOU MAY NOT USE THE SERVICE UNLESS YOU ACCEPT THE TERMS OF THIS LICENSE. YOU MAY PRINT THE WEB PAGE CONTAINING THIS LICENSE OR SAVE IT AS A FILE ON YOUR COMPUTER.
IF YOU DO NOT AGREE WITH THE FOLLOWING TERMS AND CONDITIONS, NO LICENSE IS GRANTED HEREUNDER AND YOU ARE NOT AUTHORIZED TO USE THE SERVICE.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
(a) Storage Service: Subject to the terms of this Agreement, ASI agrees to provide Company storage for tokens, the purchased number of which may be increased from time to time. Company agrees to pay ASI the token storage service fee for the Storage Service calculated based upon the number of stored tokens at the applicable monthly or annual rates set forth in the Fee Schedule (defined in Section 3).
(b) Payments Passthrough Service: Subject to the terms of this Agreement, ASI agrees to provide Company payments passthrough capability, the purchased capacity of which may be increased from time to time. Company agrees to pay ASI the payments passthrough service fee for the Payments Passthrough Service calculated based upon the number of payment passthrough transactions processed at the applicable monthly or annual rates set forth in the Fee Schedule (defined in Section 3).
(c) Availability: The Service provides the capability to store, retrieve, and process third party cardholder account and other data (“Data”) during the Service Period (defined below), subject to the tokenization and payments passthrough allowances provided with the Service and which Company additionally purchases from time to time. ASI provides storage and processing in a Payment Card Industry (“PCI”) Compliant environment and is available 24 hours per day during the Service Period. The Service provides the ability to connect directly to, access and manage Data from any computer via a secure web interface. It is Your responsibility to routinely back up Your data and files.
To use the Service, Company must complete the activation process within the Service. All or portions of the Service provided hereunder may be provided by a third-party provider including but not limited to the storage of Data backed up via the Service.
(d) Value-Added Services: ASI may offer other services or products in the future (“Value-Added Services”). In the event that Company elects to use any Value-Added Service, Company hereby acknowledges and agrees that the term “Service” shall include each of the Value-Added Services. In addition to Company’s obligations set forth in the Agreement, Company agrees to pay the Value-Added Service Fees in accordance with Section 3 of this Agreement and in the amounts provided in the Fee Schedule and/or in the Value-Adding Service documentation page accessed during enrollment for the applicable Value-Added Service. By checking or clicking the “I AGREE” button next to a Value-Added Service, Company acknowledges and agrees to the fees, Company’s obligation to pay the fees, and the terms and conditions applicable to the Value-Added Service.
2. Service Period.
The “Service Period” shall begin on the date Company elects to activate the Service and shall continue for the period of time set forth in the Service documentation as long as Company is current with payment of the Service Fees, defined in Section 3, as follows: a) month to month for a monthly plan, and b) to the yearly anniversary date for an annual plan. Your Service Period may be extended by payment of the Service Fees associated with Your plan.
(a) Service Fees: The “Service Fee” means the combined fees calculated for the token Storage Service, the Payments Passthrough Service, Value-Added Services and any other services or products offered by ASI. ASI will set, manage and invoice the Service Fee in advance in US Dollars in accordance with the applicable monthly or annual service plan using the payment method Company provides when it activates, extends, or renews the Service or as separately agreed. If Company increases or upgrades the Service during an existing subscription term, Company will be billed in full, in advance for the new level and combination of Service. Any remainder of the prior pre-paid subscription will not be refunded but may be applied to the Service Fee applicable to the new service level or combination of Service.
A schedule of Service Fees (“Fee Schedule”), located and available at AuricSystems.com, is hereby incorporated by reference and may be revised, updated and changed from time to time solely by ASI. The then current Fee Schedule will apply at the time of renewal.
(b) Account Fees: If, at any time, the Service Fee is declined or otherwise rejected by Company’s bank or credit card company or Company otherwise fails to pay for the Service, Company has ten (10) business days to provide a valid payment method and pay any past due amounts. ASI reserves the right to suspend the Account, defined in Section 4, until Company provides a valid payment method and pays any past due amounts. Following a suspension, Company will have thirty (30) days to update its payment method and have the account reactivated. If no action is taken, ASI may terminate Company’s account and Company’s Data may be purged. In order to reactivate the account, Company will be charged any past due amounts and any fees incurred by ASI for rejected payments. Company may also be billed in advance for ongoing Service as described above.
(c) Taxes: Company is responsible for the payment of any and all sales, use, customs, excise, ad valorem, value added, withholding or other similar tax, assessment, duty or government charge or fee chargeable on account of any amounts paid by Company to ASI for the provision of goods or services or under license (“Taxes”). Company is responsible for and required to pay all applicable Taxes directly to the taxing authority, and, in the event that ASI is assessed Taxes, Company shall indemnify and reimburse ASI for payment of such Taxes in a timely manner.
4. Company Responsibilities.
(a) Use: A current Company Account (“Account”) is required to access and use the Service. Company must complete the applicable registration process to confirm its qualifications and to create an Account in order to use the Service. Company is solely responsible for maintaining the confidentiality of its Account password, identification or any other codes for accessing the Service. Company must keep its registration information current during the Service Period. If Company is using locally-managed encryption, Company is responsible for backing up its keys.
(b) Communication Connections; Maintenance: Company is solely responsible for acquiring and maintaining the Internet or telecommunications services and devices required to access and/or use the Service. ASI maintains multiple Service locations, and ASI may at any time, without notice or liability, limit availability to a particular Service location in order to perform maintenance activities. ASI shall use commercially reasonable efforts not to disrupt or interfere with Service availability.
(d) No Resale Use of the Service: Company agrees not to offer the Service or sell, resell, transfer or distribute use of the Service.
(e) Storage and Other Limitations: ASI assumes no responsibility for the deletion of or failure to store Data. ASI retains the right, at ASI’s sole discretion, to determine whether or not Company’s conduct is consistent with the terms of this Agreement and may terminate Company’s access to the Service if Company’s conduct is found to be in violation of the terms of this Agreement.
(f) The foregoing obligations regarding use of the Service apply to all use of the Service. Company is solely responsible for the use of the Service, and the Data transmitted or stored through the Service, in connection with Company’s Account.
5. PCI Services. ASI’s facilities, processes and policies have undergone rigorous independent assessments earning ASI designation as a Level 1 PCI-DSS (“Data Security Standard”) Validated Service Provider. ASI agrees to maintain Level 1 PCI-DSS compliance during the term of the Agreement and to retain an independent, qualified firm to validate compliance on at least an annual basis. ASI agrees to provide Company with proof of compliance on an annual basis and to notify Company should ASI materially fall out of compliance with PCI–DSS. ASI acknowledges that it is responsible for cardholder data provided by Company and that it shall at all times, including after termination of this Agreement, protect this data under the requirements listed in the PCI-DSS. Company is responsible for validating its own PCI-DSS compliance; ASI does not assess Company’s compliance.
6. Protection of Data Stored within the Storage Service.
(a) Separation of Personally Identifiable Information: Company acknowledges and agrees that personally identifiable information and other nonpublic personal information (“PII”) shall not be stored within a single token and that multiple tokens may be required to capture the underlying data. If Company stores a primary (or cardholder) account number (“PAN”), the PAN shall be stored within a separate and distinct token from other data.
(b) Encrypted Data Transmission: The Storage Service supports both the use of Company-managed encryption and Storage Service encryption. If Company elects the Storage Service with Company-managed encryption, Company agrees to never transmit unencrypted data to Storage Service via the storage application programming interface (“Storage API”). All data transmitted to, and stored in, the Storage Service via the Storage API shall have been previously encrypted with an encryption algorithm that meets PCI encryption requirements. ASI agrees to never ask for the card data encryption key. Company agrees to never transmit the cardholder data encryption key to ASI. Company and ASI agree that data security compliance is enhanced by separation of the data encryption key and the encrypted data. At no time will ASI have access to non-encrypted cardholder data within the Storage Service environment. All Data sent to the Storage Service via ASI’s Software (defined in Section 10(a)) meet the requirements of this Section 6.
(c) Tokens: A token generated by the Service will be stored. If Company elects, for token conversion services supported by the Service, a Service-generated token can be converted into a token usable by a specific third party.
(d) Company shall comply with Company’s privacy and data security policies, its industry’s standards, and with all government, federal, state, and local privacy, data collection, data security, rules, retention and use laws and related regulations. ASI reserves the right to cooperate with any legal process and any law enforcement or other government inquiry related to Company’s use of the Service. ASI may provide documents and information relevant to a court subpoena or to a law enforcement or other government investigation. By using the Service, Company acknowledges and agrees that ASI may collect, transmit, store, disclose and analyze information for these purposes.
(e) Any Data that Company transmits or stores through the Service may be transferred to a third party at ASI’s sole discretion. ASI has taken steps to ensure that the Data, if transferred, receives an adequate level of protection, including by using data transfer agreements where required. If You have any questions about how Your Data is being handled, please contact ASI Customer Service using the contact details below.
(f) ASI has no obligation to monitor use of the Service and/or Data transmitted or stored through the Service. To the maximum extent permissible under applicable law and notwithstanding the provisions of this Section 6, ASI reserves the right at all times to monitor, review, retain and/or disclose any Data or other information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to investigate any suspected breach of this Agreement.
7. Storage Service Data Retention Policy.
Company is solely responsible for compiling and retaining permanent records of all transactions. Company can define its retention period in the Storage Service. It is ASI’s policy to mark data that has exceeded the designated retention period for automated deletion. The marked data is deleted within thirty (30) calendar days following close of the retention period. Data may be maintained for some additional time in offline backups.
8. Data Retention Upon Termination.
Upon termination of this Agreement, ASI shall remove all Company Data stored within the Storage Service’s database within thirty (30) calendar days. All Company Data shall be removed from the database via a manually-run deletion query.
9. Right to Audit.
ASI and Company shall have the right to audit, or have a third-party audit, a) Company’s data retention information and token count and b) Company’s payments passthrough transaction count. Any entity performing this audit must be a Level 1 PCI Validated Service Provider. If any such audit shall disclose any discrepancy with the payments paid by or received from Company, the offending party shall immediately investigate and report its findings with a correction plan and make payment to the aggrieved party. If any discrepancy is discovered, the offending party shall reimburse the aggrieved party for its reasonable expenses associated with such audit. Each party shall have such audit right during the term of this Agreement and for one year after its termination. Audits shall be limited to no more than one audit per year unless issues are found with the initial audit. In that case, a second audit may occur within a twelve month period to validate any discrepancies found in the initial have been corrected.
10. Scope of License for Service; Limited Trademark License; Changes to Service.
(a) ASI hereby grants Company a nonexclusive, nontransferable license to access the Service solely in accordance with the terms and conditions of this Agreement and any specifications which may be provided separately.
(b) Subject to the terms of the Limited Trademark License attached hereto as Schedule 1 and incorporated herein, ASI grants to Company a worldwide, non-exclusive, nontransferable, non-sublicensable, royalty-free, fully-paid up right to download, use, reproduce, publish, and display one of its AuricVault Secure™ Logos on Company’s website(s). All rights in ASI’s common law and registered trademarks, service marks, logos, business names, trade names, trade dress rights, domain names, the ASI Trademarks listed in Schedule 1, Limited Trademark License, any other trademarks and logos that ASI may develop, and similar or related rights arising under the laws of the United States or any other country or jurisdiction, whether existing now or developed or acquired in the future (“Marks”) are and shall remain at all times the sole property of ASI, and all use of the Marks shall inure to the benefit of ASI. Company may not use any Mark without an agreement with, or express written consent from, ASI authorizing such use. ASI retains all right, title and interest in the Software, Service, and Marks, including without limitation all intellectual property rights embodied therein. Company has not acquired and will not acquire any rights, express or implied, in the Software, Service, and Marks other than those specified in this Agreement. “Software” means ASI’s multiple proprietary product applications in source or object code form used to process credit card and payment transactions, encrypt, decrypt and tokenize, including but not limited to the source code, improvements, updates, releases, revisions, enhancements, error corrections, release notes, updated version(s), upgrades and changes to the software made by ASI from time to time.
(c) Neither Company nor any other business or person may (i) sublicense, rent, lease, offer or otherwise distribute any portion of the Service except as otherwise provided in this Agreement; (ii) copy, reverse engineer, decompile, disassemble, modify, translate, extract, make any attempt to discover the source code of the Software or create derivative works from the Software or Service; or (iii) use the Service as part of a facility management, timesharing, service provider or service bureau arrangement.
(d) Company agrees it may not use the Service to upload, transmit, or transfer any data, information, materials, or content to ASI or any third party other than transmissions or transfers of information necessary for the intended use of the Service. Company also agrees not to use the Service for any unlawful or improper purpose.
(e) ASI continually strives to improve the usability and performance of its products and services. Company shall have the right to receive new features for the Service as ASI, in its sole discretion, makes such features available during the Service Period. In order to optimize the Service, ASI may, at its discretion and without notice, add, modify or remove features from the Service at any time. In such event, Company may be required to upgrade to the latest version of software solely at Company’s expense in order for the Service to continue to function correctly. Company agrees that ASI may, in its sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of the Service and to prevent abuses.
11. Term and Termination.
(a) Notice and Termination: This Agreement may be terminated by either Party without cause upon ninety (90) calendar days prior written notice to the other party (“Notice of Termination”). On or immediately following the effective date of termination (“Termination Date”), Company shall promptly remove any Data from storage, and Company shall promptly remove any reference to the Service from its applications store(s) and related cart(s). Following termination of Service or expiration of the Service Period, ASI shall not be obligated to maintain such Data, forward such Data to Company or a third party, or migrate such Data to another storage service or account; and further, Company will not be able to store Data under any additional storage allowance that Company may have purchased separately unless and until Company’s current Service Period is renewed or a new Service Period is activated. You will comply with Schedule 1, Limited Trademark License including but not limited its Section 6 relating to the prompt removal of any reference to the Service from Your web site and removal of all links to ASI’s web site, and immediate cessation of use of any ASI Trademark, including the AVS Logos.
(b) Data Export to Company: If Company is current and in good standing with payment of the Service Fees, Company may, for an additional fee (“Export Fee”), request that ASI export Company’s Data to Company. The Export Fee is nonrefundable and shall be paid by Company to ASI prior to generation of the export file. The Export Fee is the greater of:
(ii)the Per Month Service Fee calculated for the month immediately prior to the Termination Date; or
(iii)the Annual Service Fee assessed prior to the Termination Date.
ASI and Client shall perform their respective procedures set forth in Section 11(d) below.
(c) Data Export to Third Party: If Company designates a third party as recipient of the Data, in addition to fulfilling the requirements of this Section 11 including 11(b), ASI will determine a separate nonrefundable transfer fee (“Transfer Fee”) dependent on licenses and factors existing at the time of the request, to be paid by Company to ASI prior to Data export, access, or other negotiated service. ASI will make no recommendation on any third-party tokenizer, encryption or decryption program, data storage or other entity.
(d) Data Export Procedures: The following generally describes the procedures by which Company’s Data will be extracted and transmitted to Company or designated third party after ASI receives the applicable Export Fee or Transfer Fee:
(i)Within three (3) business days of payment, Company will generate a new encryption key pair and only send ASI the public key (“Public Key”). ASI and Company acknowledge and agree that the Public Key is separate and distinct from any data encryption key used to encrypt/decrypt the underlying Data, and use of the Public Key does not and will not violate the requirements listed in the PCI-DSS.
(ii) ASI will encrypt a test file with the Public Key and send it to Company.
(iii) Upon receipt, Company will decrypt the test file.
(iv) Company will notify ASI if decryption of the test file is successful and if not, ASI and Company will repeat steps (i)-(iv) until encryption/decryption is successful.
(v) ASI will extract the Data and tokens stored in the Storage Service and prepare a Comma-Separated Value (“CSV”) file.
(vi) ASI will encrypt the CSV file with the Public Key and send it to Company.
(vii) Company will decrypt the CSV file and notify ASI within five (5) business days, concluding ASI’s obligations to Company.
It is anticipated that steps (i) through (vii) will take no more than fifteen (15) business days from receipt of payment of the applicable fee. ASI, at its sole discretion, may modify the above procedures in accordance with PCI standards and prudent business practices.
12. Limited Warranty; Disclaimer of Warranty; Limitation of Liability; Indemnification.
(a) Limited Warranty: ASI represents and warrants that ASI shall maintain Level 1 PCI-DSS compliance during the term of the Agreement. To the maximum extent permissible under applicable law, Company assumes total responsibility for use and results of use of the Service. ASI and its licensors exercise no control over and disclaim any responsibility for the content or data created or accessible using the Service. Company agrees not to use the Service in activities where an error could cause damage or injury. ASI and its licensors exercise no control over and disclaim any responsibility for third party or Company-managed encryption software or the resulting content or data created.
(b) Disclaimer of Warranty: TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ASI’s SERVICE, SOFTWARE, AND MARKS, AND ANY THIRD PARTY SOFTWARE OR SERVICE, ANY ADDITIONAL SERVICE OR VALUE-ADDED SERVICE PROVIDED BY ASI ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, WRITTEN OR ORAL, STATUTORY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INCLUDING THOSE ARISING FROM COURSE OF DEALING OR COURSE OF TRADE AND DISCLAIMS ANY SUCH WARRANTIES. ASI AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR SOFTWARE OR ADDITIONAL SERVICE OR VALUE-ADDED SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. NO ADVICE OR INFORMATION GIVEN BY ASI, ITS LICENSORS, AFFILIATES, ITS AGENTS, OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES WILL VARY THE TERMS OF THIS AGREEMENT OR CREATE ANY WARRANTY. ASI IS NOT RESPONSIBLE FOR MISUSE, ABUSE, NEGLECT, IMPROPER USE OF THE SERVICES BY COMPANY FORCE MAJEURE EVENTS AND EVENTS SUCH AS IMPROPER ELECTRICAL VOLTAGES OR CURRENT, REPAIRS, ALTERATIONS, MODIFICATIONS BY OTHERS, ACCIDENTS, FIRE, FLOOD, VANDALISM, ACTS OF NATURE, TERRORISM, OR THE ELEMENTS. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ASI TECHNICAL SUPPORT IS NOT WARRANTIED AND IS USED AT THE USER’S OWN RISK. ASI AND ITS LICENSORS MAKE NO WARRANTY REGARDING TRANSACTIONS EXECUTED AND CONTENT AND INFORMATION ACCESSED BY USING THE SERVICE. TO THE EXTENT THAT ANY LIMITATION IN THIS SECTION IS NOT PERMITTED BY APPLICABLE LAW, SUCH LIMITATION WILL NOT APPLY TO THE EXTENT IT IS BARRED BY APPLICABLE LAW.
(c) Limitation of Liability: Some states and jurisdictions do not allow for the limitation or exclusion of liability for incidental or consequential damages so the following limitations or exclusions may not apply to You.
To the maximum extent permissible under applicable law, regardless of the legal theory under which liability is asserted and regardless of whether ASI has been advised of the possibility of liability, loss or damage, ASI, its licensors, affiliates, agents, and contractors will not be liable to Company for any incidental, indirect, special, reliance, punitive or consequential damages of any kind arising out of or related to this Agreement, Service, Additional Services, Value-Added Services, Limited Trademark License, or use of third party software, including, without limitation, any loss of use, loss of business, lost or imputed profits or revenues, loss or destruction of content, information or data, costs of cover, interrupted service, or reliance upon Company-managed or third party encryption software, other third party software and/or associated documentation. To the maximum extent permissible under applicable law, with regard to any Trademark-related or Service-related claim for damages that is not limited by this Section 12, Company’s exclusive remedies for such claim and ASI’s total aggregate liability arising from or related to this Agreement shall be limited: (a) for a monthly plan, to the total monthly service charges paid by Company to ASI in the one month immediately preceding the event giving rise to the claim; (b) for an annual plan, to the total service charges paid by Company to ASI for the Service Period covering the event giving rise to the claim. ASI and its licensors disclaim all liability or responsibility if Service or Additional Service or Value-Added Service changes require changes to Company’s equipment, degrade Company’s equipment or service performance with the equipment, or make Company’s equipment obsolete.
(d) Indemnification: To the maximum amount permissible under applicable law, Company shall indemnify and hold ASI, its parents, subsidiaries, affiliates, officers, directors, employees and agents harmless from and against any third party claims, demands, costs, damages, losses, liabilities and expenses, including reasonable attorneys’ fees, made by any third party arising out of or in connection with use of the Service through the Account, including but not limited to liability arising out of or in connection with the Data transmitted or stored through the Service in connection with Your Account.
Each Party acknowledges and agrees that, as of the Effective Date and for twelve (12) months after termination of this Agreement, it shall not directly or indirectly or on behalf of any third party: (a) induce any employee of the other Party and its affiliates to leave the employ of such other Party or such affiliate; (b) employ, or otherwise engage as an employee, independent contractor, or otherwise, any employee of such other Party or such affiliate, or (c) induce or attempt to induce any customer, supplier, licensee, or business relation of such other Party or such affiliate to cease doing business with such other Party or such affiliate, or in any way interfere with the relationship between such other Party or any affiliate and any customer, supplier, licensee, or business relationship.
14. Entire Agreement.
This Agreement includes its Schedules and attachments, and constitutes the entire understanding and agreement, and supersedes any and all prior and contemporaneous representations, understandings and agreements between the Parties hereto, with respect to the subject matter of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. A signature transmitted by facsimile shall constitute an original signature. In accordance with the New Hampshire Uniform Electronic Transactions Act, the Parties agree that this Agreement may be signed by electronic signature and such signature shall constitute an original signature associated with the document record and executed or adopted by a person with the authority and intent to sign the Agreement. ASI may revise or update the Agreement from time to time and may request your acceptance to continue Service, receive licenses, or receive additional value-added services.
15. Amendment; Waiver.
Subject to the termination provisions contained herein, this Agreement may not be modified, amended, rescinded, canceled or waived, in whole or part, except by a written instrument signed by the parties. No delay or omission by either party hereto in exercising any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained.
Upon termination or expiration of this Agreement, the provisions of this Section 16 and Sections 8, 9, 10, 11, 12, 13, 17, 21 and all limitations of liabilities shall continue and survive in full force and effect.
17. Governing Law; Export Compliance.
(a) Governing Law: This Agreement shall be governed by, construed and enforced in the courts and under the laws of the State of New Hampshire without reference to its choice of law principles. If any provision of this Agreement is held to be unenforceable, such decision shall not affect the validity or enforceability of any or all of the remaining provisions, and any provision deemed unenforceable shall automatically be revised with the least changes necessary to effect, to the fullest extent permitted by law, the intent of the parties as set forth in this Agreement. Each Party expressly agrees that in addition to any other remedies provided for by law, in equity or pursuant to this Agreement, either Party shall be entitled to injunctive or other equitable relief to prevent a breach by the other Party. The Parties agree the application of the United Nations Convention on Contracts for the International Sale of Goods is excluded in its entirety from application to this Agreement.
(b) Export Compliance: Company acknowledges that the Service, Additional Services, Value-Added Services, and the Software and any part thereof, may be subject to U.S. Government export laws and regulations, and Company is responsible for compliance with any and all laws, legislation or regulations governing the importation of products into the destination country and for payment of any duties, taxes and fees on such goods or importation. Company shall not, directly or indirectly, export, re-export, or transfer the Service, Additional Services, Value-Added Services, Software, or any confidential information received from ASI (i) into (or to a national or resident of) any country to which the United States has embargoed products, technology, services or data, or (ii) to any person on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Person’s List, or (iii) without first obtaining the appropriate government approvals, and ASI makes no representation or warranty regarding the issuance of export licenses for any of its products or services. ASI is not and shall not be, under any circumstances, responsible for Company’s compliance with any and all laws, legislation or regulations governing the importation of products into the destination country and for payment of any duties, taxes and fees on such goods or importation.
All notices required under this Agreement shall be in writing and shall be deemed effective when (a) received by the party at the address shown on the first page of this Agreement or provided during the registration process, in the event of service by certified mail, return receipt requested, or via overnight courier such as FedEx, postage prepaid; or (b) when sent electronically to the electronic mail address provided by or for Company during registration for the Service with a written copy sent simultaneously by certified or registered mail, postage prepaid; or (c) when sent via facsimile transmission with a written copy sent simultaneously by certified or registered mail, postage prepaid. Either party may change its address, facsimile number, or person to be notified by giving written notice to the other party in a manner prescribed herein.
19. Force Majeure.
The failure or delay of any party hereunder to perform any obligation otherwise due (except for the payment of monies due hereunder) as a result of governmental action, law, order or regulation, or as a result of war, act of public enemy, strike or other labor disturbance, fire, flood, act of nature, act of terrorism, failures or interruptions of communications, including the Internet, facilities or equipment of third parties, or other causes or events of like kind beyond the reasonable control of such party, shall be excused for so long as said cause exists to the extent such failure is caused by such event (collectively, “Force Majeure Events”).
Neither Party may assign this Agreement or any of its rights (except for rights to payment) or obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other Party which shall not be unreasonably withheld; provided, however, that either Party may assign this Agreement, together with all of its rights and obligations hereunder, without the prior written consent of the other Party to any acquirer of all or substantially all of the assets or business of the assigning Party to which this Agreement relates in any merger, consolidation, acquisition, sale of assets or similar business combination, provided that (i) the assigning Party is not in breach of any of its material obligations hereunder, (ii) such acquirer agrees in a writing delivered to the other Party within thirty (30) calendar days of the effective date of such acquisition to be bound by all of the rights obligations of the assigning Party set forth in this Agreement, and (iii) in the case of any assignment by Company, such acquirer shall have no further right to assign this Agreement or any of its rights or obligations, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of ASI or its assignee, such consent not to be unreasonably withheld. Any attempted assignment in violation of this Section shall be null and void. Subject to this Section, the rights and liabilities of the parties under this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
21. Relationship of Parties.
ASI and Company are independent contractors and this Agreement shall not establish any fiduciary relationship or other relationship of partnership, joint venture, employment, franchise or agency between them. No party shall have the authority to bind any other or incur obligations on the other’s behalf without the other’s prior written consent.
22. Additional Services.
ASI can provide services such as support and maintenance, software development, and custom product development ("Additional Services"). The specific services, additional terms, fees, schedules and a statement of work will be separately negotiated.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT INCLUDING THE LIMITED TRADEMARK LICENSE, SCHEDULES AND ATTACHMENTS, UNDERSTAND IT, AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, ARE 18 YEARS OF AGE OR OLDER, AND ARE AUTHORIZED TO ACCEPT AND AGREE TO ITS TERMS AND CONDITIONS.
Should You have any questions concerning this Agreement, please contact in writing:
Auric Systems International, a division of Appropriate Solutions, Inc.
PO Box 458
Peterborough, NH 03458
Limited Trademark License
Auric Systems International, a division of Appropriate Solutions, Inc., as licensor (“ASI”), is pleased to make the AuricVault Secure™ Logo (the “AVS Logo or Logos”) available for your use. A limited license (“Limited License”) is provided solely to you, individually or as an authorized representative of a company or other entity (“Company” or “You” or “you”). Unless otherwise provided, the defined terms in this Schedule shall have the same meaning as in the ONLINE AURICVAULT® SERVICES AGREEMENT (the “Agreement”).
The Parties hereby agree as follows:
1. ASI Trademark License.
(a) Limited License. Subject to the terms and conditions of the Agreement and contained herein, ASI grants to Company a worldwide, non-exclusive, nontransferable, non-sublicensable, royalty-free, fully-paid up right to download, use, reproduce, publish, and display one of the AVS Logos on Company’s website(s). These terms and conditions may be updated by ASI from time to time by posting the updated terms and conditions at AuricSystems.com and without prior separate notification to You. To use the AVS Logos, Company must link its website to an Auric Systems website, and ASI will provide Company with the HTML link to https://AuricSystems.com. Company can list the name of Auric Systems International on its website.
(b) The AuricVault Secure™ Logo. Only the AuricVault Secure™ Logos shown immediately below are licensed:
2. Company’s Trademark License. Subject to the terms and conditions of the Agreement and contained herein, Company hereby grants to ASI a worldwide, non-exclusive, nontransferable, non-sublicensable, royalty-free, fully-paid up right to download, use, reproduce, publish, and display Company’s Trademarks on ASI’s website(s). ASI may link its website to Company’s website. ASI can list the name of Company (or You, if an individual) on its website. “Company’s Trademarks” means Company’s business names, tradenames, customary logos, and such other trademarks and domain names as Company may from time to time notify ASI in writing to be “Company’s Trademarks”.
3. Trademark Requirements and Guidelines. Company must reproduce the AVS Logos exactly as shown in Section 1(b) above, including the exact reproduction of any proprietary markings or legends and including the appropriate ® or ™ symbol at the first and most prominent reference.
The AVS Logos must always be shown consistently and in accordance with these provided guidelines which may be revised from time to time. The AVS Logos must not be used in a manner that dilutes its value, places ASI or its affiliates in a position of disrepute or causes confusion as to the relationship between the Company and ASI. If ASI considers in its sole discretion that the AVS Logos or any of the ASI Trademarks are being used in such a manner, upon request You will immediately cease use of the ASI Trademarks and the AVS Logos in particular.
Within the scope of the permitted use, the AVS Logos must not be changed or altered in any way. In addition:
- • Do not place wording or graphics under or within the AVS Logos.
- • Do not infringe on the white space around the AVS Logos.
- • Size or scale the AVS Logos maintaining proper proportions only.
- • Do not change the font or script in any way. Do not create your own versions.
- • Whenever the AVS Logos is used, include a notice statement of ASI’s ownership on your packaging, advertising materials, web site pages, and all other marketing collateral. The web site, etc., must include the following notice statement for the version You use:
The AuricVault Secure™ Logo is a trademark of Auric Systems International, a division Appropriate Solutions, Inc.
4. Linking to AuricSystems.com. In addition to following the Trademark Requirements and Guidelines listed above, when your site links to an AuricSystems.com page, the link and the pages that are activated by the link:
- • Must not create frames around any page on the AuricSystems.com web site or use other techniques that alter in any way the visual presentation or appearance of any content within the site.
- • Must not misrepresent your relationship with ASI;
- • Must not imply that ASI approves of, is sponsoring or endorsing the Company, your web site, or your service or product offerings.
- • Must not present false or misleading impressions about ASI or otherwise damage the goodwill associated with the ASI name or trademarks.
- • Must not contain materials that would violate any laws or that could be construed as being inappropriate, obscene, libelous, defamatory, or pornographic.
5. Definition; Restrictions.
(a) For purposes of this Limited License, the “ASI Trademarks”, business names, and domain names may be revised from time to time and include but are not limited to:
AuricVault®, Tokenize What Matters®, and the AS® Logo
CN!Express®, Payment Processing Simplified®, and Trevance®
The AuricVault™ Logo, and the AuricVault Tokenize What Matters™ Logo
AKMP™, n-key™, and PaymentVault™
The AuricVault Secure™ Logo
Auric Systems International, and Appropriate Solutions, Inc.
and its domain names
(b) Each Party shall strictly comply with all standards with respect to the other Party’s Trademarks or which may be furnished by one Party to the other from time to time. Further, neither Party will create a combination mark consisting of one or more Trademarks of the other Party. All uses of the other Party’s Trademarks and any goodwill inures to the benefit of the Party owning such Trademark. Each Party may update or change the list of Trademarks usable by the other Party at any time by written notice to the other Party. Neither Party is responsible for the other Party’s website or its content, nor for the websites of any other companies or organizations including those to which a Party may link.
(c) Company shall not (i) use the ASI Trademarks except as expressly authorized in this Limited License or the Agreement; (ii) take any actions inconsistent with ASI’s ownership of its Trademarks and any associated registrations, or attack the validity of the ASI Trademarks, its ownership thereof, or any of the terms of this Limited License or the Agreement; (iii) use the ASI Trademarks in any manner that would indicate Company is using any ASI Trademark other than as a licensee of ASI; nor (iv) assist any third party do any of the same. Company shall not use, register or attempt to register any of the ASI Trademarks or any marks or domain names that are confusingly similar to any of the ASI Trademarks or its domain names.
6. Termination. This Limited License terminates on the Termination Date as defined in the Agreement.
ASI reserves the right to request Company immediately cease use of the AVS Logos if You fail to comply with any of the Guidelines or for any other reason in ASI’s sole discretion. Upon such request, You shall immediately stop using the AVS Logos.
Company reserves the right to request ASI immediately cease use of Company’s Trademarks if ASI fails to comply with any of Company’s trademark guidelines or for any other reason in Company’s sole discretion. Upon such request, ASI shall immediately stop using Company’s Trademarks.
Company agrees that ASI may at any time, in its sole discretion, terminate permission to link to ASI’s web site. In such event, You agree to immediately remove all links to the web site and to cease using any ASI trademark.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, ARE 18 YEARS OF AGE OR OLDER, AND ARE AUTHORIZED TO ACCEPT AND AGREE TO ITS TERMS AND CONDITIONS.
Should You have any questions concerning this Agreement, please contact in writing:
Auric Systems International, a division of Appropriate Solutions, Inc.
PO Box 458
Peterborough, NH 03458
INDICATE YOUR AGREEMENT BY CLICKING ON THE “I AGREE” BUTTON BELOW THAT YOU AGREE TO ITS TERMS. WHEN COMPLETED, YOU SHALL CAUSE THE INFORMATION ENTRY PAGE TO BE RECORDED BY AURIC SYSTEMS INTERNATIONAL. IF YOU DO NOT AGREE TO THESE TERMS, THE TRANSACTION WILL BE CANCELLED. YOU MAY ALSO CLICK THE DOWNLOAD BUTTON TO DOWNLOAD A COPY OF THIS AGREEMENT FOR YOUR RECORDS. DOWNLOADING DOES NOT CONSTITUTE AGREEMENT.
* * *