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CARD SERVICES TERMS AND CONDITIONS
1. SERVICE. 1.1 Merchant agrees that during the term of this Agreement it will use the services of AURFY for the processing of UnionPay Card Transactions. 1.2 Merchant acknowledges that AURFY may provide payment Transaction processing services hereunder through contracts or subcontracts with third parties engaged in the business of Transaction processing and Authorization, and specifically authorizes such third parties to exercise all of the rights of AURFY hereunder, including but not limited to, the rights under 4. to debit Merchant’s Account for all fees and other liabilities. 1.3 Merchant agrees that it: (a) shall comply with this Agreement; (b) shall cause, to the extent applicable, each of its Third Party Agents to comply with this Agreement; and (c) is responsible for any non‐compliance by its Third Party Agents. 2. DEFINITIONS. 2.1 “Fees” means the charges that are applicable for the AURFY Services in the Agreement.2.2 “Reserve Account” means amount of monies held in a non‐interest bearing commercial checking account established by AURFY for the crediting of collected payments and the debiting of Fees pursuant to the terms of this Agreement. 2.3 “Agreement” means this Merchant Processing Agreement and the Merchant Application. 2.4 “Transaction” means any payment processed by AURFY in the context of the Services, specifically settlement by a Cardholder of a Purchase Price by way of Bank Transfer or Card Payment. 2.5 “Authorization” means the act of obtaining approval from the Card Issuer for an individual Transaction. 2.6 “AURFY” means collectively AURFY, Inc., and its sponsoring banks. 2.7 “Cardholder” means the person whose name is embossed upon the face of the Card. 2.8 “Merchant” generally means the party identified as the recipient of this Agreement and its principals and owners.
2.9 “Refund” means after a successful payment is processed, the Merchant cannot provide goods or service to the Cardholder, Merchant can send a Refund request to AURFY, and AURFY will issue refund back to the customer’s Card. 2.10 “Rules” means the operating regulations, terms and conditions of the UnionPay International presently in effect and as they may be amended from time to time by UnionPay International. 2.11 “Purchase Price” means the price payable by the Cardholder to the Merchant for products rendered by the Merchant to the Cardholder and any additional costs; 2.12 “Card Payment” means a card number given by the Cardholder to the Merchant or to AURFY acting on behalf of the Merchant for processing the Purchase Price. Card Payment is understood to be the generic term for payments by domestic and international credit, debit, smart, cash, and charge cards including but not limited to payments by domestic and international credit, debit, smart, cash, and charge cards; 2.13 “Services” means the range of services that the Merchant is authorized to use or to provide to Cardholders pursuant to this Agreement as may be authorized by AURFY from time to time, specifically the facilitation of Card Payments by Cardholders to Merchant for the Purchase Price through Systems;
2.14 “Bank” means any bank or financial institution at which AURFY collects and/or deposits Card Payments for clearance in support of the Services. 2.15 “Card” means: (a) a valid credit, debit or payment Card in the form issued under license from UnionPay International; or (b) any other valid credit, debit or payment Card accepted by Merchant under this Agreement with AURFY. 2.16 “Card Issuer” means the financial institution or company that has provided a Card to the Cardholder. 2.17 “Chargeback” means the procedure by which:
(a) a sales Transaction (or disputed portion thereof) is returned to AURFY by a Card Issuer because such item does not comply with the Card Issuer’s applicable Rules or operating regulations or for any other reason as provided in this Agreement;
(b) the Merchant’s Account is debited for such return.
2.18 “Credit Voucher” means a document, in electronic or paper form, or a Transaction executed by Merchant evidencing any refund or price adjustment relating to Products to be credited to a Cardholder account. 2.19 “Systems” means the systems through which AURFY enables Cardholders to effect payment or funds transfer; 2.20 “Transaction Fee” means the fee charged by AURFY against Merchant for the services provided by AURFY to the Merchant. Calculated as a percentage of the UnionPay sales processed by AURFY, which will be deducted from the collected payments to be transferred to the Merchant. 2.21 “Sales Draft” means the paper form, whether electronically or manually imprinted, evidencing a sales Transaction. 2.22 “Products” means all goods and services that are sold or provided by Merchant. 2.23 “Trademarks” means the registered or unregistered trademarks, service marks and trade names owned by or licensed to AURFY, as they may be amended from time to time; 3. TRANSFER OF FUNDS.
3.1 The transfer of the Collected Payments to Merchant shall be on a mutually agreed schedule, subject to the fee schedule set out in the Merchant Application. The amounts due to AURFY include, but are not limited to, the Fees and any Reversed Payments. AURFY will make the transfers of the collected payments via bank transfer or any other methods to a bank account designated by the Merchant.
4. RIGHTS, DUTIES, AND RESPONSIBILITIES OF MERCHANTS. 4.1 At its own expense and before the time agreed for installation or activation of the Services, prepare and provide the necessary, compatible operational equipment, software and connection specified by AURFY; 4.2 Not alter, copy, modify or tamper with any software provided by AURFY; 4.3 Employ such measures as may be necessary to protect the security and integrity of related hardware or software of the Systems; 4.4 Where required, comply with all security or encryption standards, rules procedures imposed by AURFY;
4.5 Prior to providing the Services, open and maintain at all times during the term of this Agreement, an account in its name with one of the participating banks which shall be designated for purposes of clearing and settling Transactions handled by the Merchant;
4.6 Will prominently display any AURFY Trademarks in all of its electronic media in a manner satisfactory to the AURFY;
4.7 Keep accurate records and accounts in accordance with generally accepted accounting principles for a period of at least three years after termination or expiration of this Agreement. Merchant shall provide AURFY with a statement certified to be true, complete and accurate by an office of Merchant, information regarding its operations and financial condition and sales, return and customer information regarding its sales (“Merchant Information”);
4.8 Merchant shall provide AURFY with immediate notice of intent to:
(a) comply with the Rules of UnionPay International and all other such associations and all applicable laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Services. Merchant agrees to comply with any Automated Clearing House rules applicable to automatic and electronic transfer of funds including without limitation, laws, regulations, and rules governing correct authorizations by consumers and businesses, disclosures and notices required in connection with electronic funds transfer, and all necessary waivers and releases. Merchant shall be solely responsible for credits, returns, disputes, chargebacks and all costs associated with data transmissions. Merchant will be solely responsible to obtain accurate credit card and ACH information and authorization from its customers, and will transmit said information to AURFY via the internet or service originally agreed upon by all parties. (b) transfer, sell or liquidate any substantial part of its assets; (c) change the basic nature of its business, including selling any Products not related to its current business; (d) change ownership or transfer control of business; or (e) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to this Agreement assumes more than a ten percent (10%) interest in Merchant’s business.
Merchant shall also provide AURFY with prompt written notice of any material changes regarding any information provided in the Merchant Application, including Merchant’s address, ticket size or monthly volume. AURFY determination of material breach of this Agreement shall be grounds for termination. If any of the changes listed above should occur, AURFY shall have the option to amend the terms of this Agreement or to immediately terminate this Agreement based upon the nature of the changes reported by Merchant. Merchant and principle owner(s) identified on an approved Application and any new owner of Merchant or successor. Merchant shall be jointly and severally liable to AURFY and remain liable for any AURFY in accordance herewith, unless the original Merchant or successor thereof is released in writing by AURFY.
4.9 Merchant agrees to pay AURFY the face amount of any Transaction processed by AURFY pursuant to this Agreement whenever a Card Transaction is reserved in accordance with the Rules, any state or federal statue, regulation, court or administrative order, or terms of this Agreement. By way of example but not limitation, the following will result in Chargebacks: (a) goods are returned or an order for goods is cancelled whether or not a Credit Voucher is delivered to AURFY; (b) the sale Transaction was not specified authorized; (c) any Transaction is alleged by the Cardholder to have been executed improperly or without authority; (d) the documentation prepared by Merchant evidencing the Transaction is illegible or incomplete; (e) the disputes the sale, quality or delivery of goods or the quality of performance of services covered by the Sales Draft; (f) the Cardholder asserts against AURFY any claim, dispute, defense, offset or counterclaim that the Cardholder may have against Merchant (and AURFY shall not have any obligation to inquire into or determine the validity of any such claim, dispute, defense, offset or counter‐claim);
(g) the extension of credit for goods sold or services performed was in violation of law, Rules or regulations of any federal, state or local government agency or in violation of this Agreement; (h) the card had expired before the Transaction date or the Transaction arises from the use of counterfeit or otherwise ineffective Card; (i) the Cardholder claims the dollar amount was altered after the Sales Drafts was completed; (j) two or more Sales Draft were prepared by Merchant for the same Transaction except as otherwise permitted; (k) the Card had expired before the Transaction date or the Transaction arises from the use of counterfeit or otherwise ineffective card; 5. FEES. 5.1 As consideration for the services to be provided by AURFY, Merchant shall pay AURFY fees in the manner and pursuant to the Fees schedule set forth herein and in the Merchant Application.
3 5.5 The Fees described above are exclusive of all taxes. Merchant agrees to pay all applicable taxes (other than taxes on AURFY’s net income). If Merchant is required to withhold any taxes, Merchant bears the ultimate responsibility for the proper payment of taxes applicable to its Products. 6. CHARGEBACKS AND REFUNDS 6.1 Requests for Chargebacks should be submitted by Cardholders to UnionPay International. 6.2 Merchant agrees to pay AURFY any fees or fines imposed on AURFY by UnionPay International, if any, resulting from Chargebacks and any other fees or fines imposed by a UnionPay International with respect to or resulting from acts or omissions of Merchant.
6.3 AURFY agrees to mail or electronically transmit all Chargeback documentation to Merchant promptly at Merchant’s address shown in the Merchant Application Form; however, AURFY at any time without prior notice may debit Merchant’s account for Chargebacks. Merchant is responsible for verifying its monthly statement and its deposit for Chargebacks, Chargeback handling fees, Transaction Fee and other charges pursuant to this Agreement. Merchant shall notify AURFY in writing within fifteen (15) days after any debit or credit is or should have been affected. If Merchant notifies AURFY after such time, AURFY any, in its discretion, assist Merchant, at Merchant’s expense, in investigating whether any adjustments are appropriate and whether any amounts are due to or from other parties, but AURFY shall not have any obligation to investigate or effect any such adjustments. Any voluntary efforts by AURFY to assistant Merchant in investigating such matters shall not create an obligation to continue such investigation or any future investigation. Merchant agrees to pay AURFY a processing fee for Sales Draft retrieval requests at AURFY’s discretion.
6.4 The right of investigation and the approval of Chargeback belong solely to UnionPay International. If UnionPay International approves the Chargeback request, AURFY will assist the process of issuing the Chargeback fund with the applicable Chargeback fee payable to AURFY in addition to the regular transaction fee.
6.5 Requests for Refund should be submitted by Merchant to AURFY through the merchant transaction management system (TMS). Merchant should assure that it has enough collected payments in the Reserve Account; the refunded fund should be deducted from the collected payments to be transferred. Merchant must transfer the amount of fund as requested to Reserve Account; AURFY will proceed with the refund request. AURFY will not charge additional transaction fee for the refund transaction. However, if the bank or other third party requests other fees, the fee should be assumed by the Merchant. If the refund request was submitted after the successful transaction was made, the transaction fee charged will not be refunded to Merchant. The refund will be returned to the Cardholder’s Card. 6.6 Both chargeback and refund requests should be made within 180 days from the transaction occurring date. 7. SETTLEMENT METHOD. 7.1 AURFY shall transfer the collected payments with the transaction fee deducted. If the Merchant, for any reason, needs to change the bank information, the Merchant shall notify AURFY in writing with authorized signature on the notice. If any loss assumed by AURFY due to the late or wrong notice of the Merchant, and the loss should be assumed by the Merchant, the Merchant shall reimburse AURFY for any loss. Settlement period subject to the terms set in the Merchant Application. If the fund in Reserve Account is less than the minimum settlement amount, AURFY will make the settlement in the next settlement period.
7.2 The Merchant should check the transaction record in the transaction management system and report AURFY if there is any question. If the Merchant did not make a timely objection, Merchant recognizes the transaction.
8. REPRESENTATIONS AND WARRANTIES. Merchant represents and warrants that during the term of this Agreement:
(a) Merchant is duly incorporated, organized and validly existing under the laws of jurisdiction of its incorporation, has all requisite powers, licenses and permits and has undertaken all actions and have fulfilled all conditions to enter into, to perform under and to comply with its obligations under this Agreement and has the authority to enter into this Agreement;
(b) the business carried on by Merchant is a legitimate, lawful business and it is not engaged in any conduct or transactions which may be considered unlawful in any jurisdiction in which it conducts business; and (c) Merchant complies and shall comply with all laws, regulations and requirements applicable to its business and to the payments; (d) Merchant shall notify AURFY when there is an entity ownership change. 9. INDEMNIFICATION. The Merchant shall defend, indemnify and hold harmless AURFY and its parents, subsidiaries, affiliates, officers, directors, representatives, agents, and employees from and against any and all claims, losses, liabilities, costs, and other expenses incurred as a result of or arising directly or indirectly out of or in connection with: 9.1 any misrepresentation, breach of warranty or non‐fulfillment of any undertaking by Merchant under this Agreement; 9.2 any claims, demands, awards, judgments, actions and proceedings by whomsoever made, including, but not limited to Cardholders, arising out of or in any way connected with Merchant’s performance under this Agreement; and
9.3 any claims, demands, awards, judgments, actions and proceedings made by third party included, but not limited to, penalties imposed by banks for any reason, arising out of or in any way connected with the transactions between the Merchant and the Cardholder.
10. INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY.
law or judicial order. Merchant shall defend, indemnify and hold AURFY and UnionPay International harmless in the event of any claim (direct or indirect) arising from a violation of this Section 10.3.
10.4 AURFY shall be entitled to disclose information about the Merchant and this Agreement to any agents (including without limitation any collection agencies), contractors or advisers who provide a service to AURFY in relation to the performance or enforcement of this Agreement. 10.5 Merchants must inform AURFY immediately should any Cardholder data, including, but not limited to, credit card data, be compromised, stolen or disclosed in any way. Merchant will provide all reasonable cooperation to AURFY in the event of any such compromise, theft, or disclosure.
11. LIMITATIONS OF LIABILITY AND DISCLAIMERS.
11.1 Exclusion of Damages. UNDER NO CIRCUMSTANCES WILL AURFY OR ANY OF ITS AFFILIATES, SUBSIDIARIES, VENDORS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO MERCHANT OR CARDHOLDERFOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (HOWEVER OR WHENEVER ARISING), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AURFY’S TOTAL LIABILITY TO MERCHANT OR CARDHOLDER, IF ANY, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY SERVICES, SHALL NOT EXCEED THE GREATER OF THE AGGREGATE FEES AURFY RECEIVED FOR PROVIDING THE SERVICES TO MERCHANT DURING THE SIX MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,000. IN NO EVENT SHALL AURFY BE LIABLE TO MERCHANT OR ANY CARDHOLDERFOR ANY DAMAGES OR CLAIMS RESULTING OR ARISING BETWEEN THE CARDHOLDERAND THE MERCHANT.
11.2 Waiver of Liabilities. MERCHANT EXPRESSLY AGREES THAT AURFY SHALL NOT BE LIABLE FOR ANY LOSS (HOWEVER OCCURRING, INCLUDING NEGLIGENCE), ARISING FROM OR RELATED TO: (A) MERCHANT’S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE MERCHANT ACCOUNT; (B) FRAUDULENT TRANSACTIONS PROCESSED THROUGH MERCHANT’S PAYMENT GATEWAY ACCOUNT(S); (C) DISRUPTION OF AURFY SERVICES, SYSTEMS, SERVER OR WEBSITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (D) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A MERCHANT SERVICE PROVIDER, PAYMENT PROCESSOR OR BANK; OR (E) THE FUNCTION OF ANY MERCHANT SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH.
11.3 No Warranties. AURFY SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. AURFY DOES NOT REPRESENT OR WARRANT THAT THE AURFY SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR‐FREE. MERCHANT MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS. AURFY SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON‐INFRINGEMENT, OR TITLE WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT. MERCHANT UNDERSTANDS AND AGREES THAT AURFY SHALL BEAR NO RISK WITH RESPECT TO MERCHANT’S SALE OF SERVICES, INCLUDING, WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD OR BANK FRAUD OR CHARGEBACKS.
11.4 Third Party Products. AURFY MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD PARTY PRODUCTS OR SERVICES. MERCHANT’S USE OF THIRD PARTY PRODUCTS AND SERVICES IS AT MERCHANT’S OWN RISK. AURFY ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD PARTY PRODUCT OR SERVICE, REGARDLESS OF WHETHER OR NOT AURFY IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE.
11.5 In addition to the rights of AURFY and UnionPay International herein, UnionPay International may terminate AURFY Services and services provided by UnionPay International to AURFY and the Merchant in connection with payments made to the Merchant through AURFY and enforce any of the provisions of this Agreement that relates to the credit and debit card processing services provided by UnionPay International. This Agreement replaces any other agreement, if any, the Merchant may have already agreed to with AURFY and UnionPay International. By agreeing to this Agreement, the Merchant agrees to the terms and conditions of this Agreement and any documents incorporated by reference. UnionPay International and AURFY reserve any rights not expressly granted herein.
12. RESTRICTIONS. The Merchant hereby agrees with AURFY that it shall not:
(a) impose additional charges for transactions by Cardholders where payment is to be effected through the Systems;
(b) refuse transactions by Cardholders who wishes to effect payment through the Systems regardless of the value of the transaction, except where in the reasonable opinion of the Merchant an Cardholder is suspected not to be the authorized Cardholder or legitimate owner of the card presented;
(c) favor any particular card when accepting transactions for which Payment is to be effected through the Systems notwithstanding any agreement between the Merchant and any card issuing company; or
(d) engage in activities that are illegal or prohibited or that are deemed illegal or otherwise prohibited by UnionPay International, which shall be determined in AURFY’S sole and absolute discretion.
13. SUSPENSION OR TERMINATION OF THE PROVISON OF SERVICES.
13.1 Merchant shall fulfill obligations under this Agreement and inform AURFY of any material change to Merchants’ business or payment profile. AURFY at its sole discretion, will have the right to suspend or terminate the provision of Services to the Merchant should one of the following occur:
5 (d) any change of control, including, but not limited to, by operation of law, of your business without advising AURFY;
(e) Merchant changes the name or nature of Merchant’s business without advising AURFY; (f) any change in the legal status of your business without advising AURFY;
(g) a trustee or receiver is appointed for any or all of Merchant’s property, the Merchant become insolvent or unable to pay debts as they mature, or ceases to so pay, or makes an assignment for the benefit of creditors, bankruptcy or insolvency proceedings under bankruptcy or insolvency code or similar law, whether voluntary or involuntary are properly commenced by or against you, your company is dissolved or liquidated; or
(h) any violation of this Agreement, including, but not limited to, engaging in activities that are illegal or prohibited or if it is deemed illegal or otherwise prohibited by UnionPay International, which shall be determined in AURFY’S sole and absolute discretion.
14. TERM, TERMINATION AND SURVIVAL. This Agreement will be effective as of the Effective Date and will remain in effect for two years. Unless written notice is provided to the contrary by either Party 30 days prior to expiration of the initial term of this Agreement or any extension term, this Agreement shall automatically renew for successive one‐year terms. The termination of this Agreement shall not affect any provision of this Agreement, which by its wording or nature is intended to remain effective and to continue to operate in the event of termination of this Agreement. All obligations of this Agreement shall survive termination of this Agreement.
15. SECURITY; ACCURACY OF DATA; SYSTEMS.
15.1 Merchant shall not employ any device, software or routine that will result in interference with the operation of the Services or take any action that imposes unreasonable or disproportionately large load on the Systems’ infrastructure. In the event that AURFY reasonably believes that software, technology or other technical components of Merchant’s Web Site will materially affect AURFY or its operations, Merchant will work in good faith with AURFY to remedy such problem at its own expense.
15.2 Merchant is solely responsible for the content of the Merchant Information. Merchant acknowledges that AURFY shall have no responsibility or liability regarding the contents or accuracy of Merchant Information or any other data provided to it by Merchant.
15.3 Merchant shall implement and employ any generally available data encryption tools requested by AURFY for use in the transmission of sensitive data over open networks. Such implementation and use shall be at Merchant’s sole expense and in accordance with instructions from AURFY.
15.4 Merchant will facilitate periodic reviews of Merchant’s website by AURFY or its designated contractor to evaluate the security risks of such site. Merchant will promptly remedy any security risks or breaches of security as may be identified by AURFY.
15.5 Merchant is solely responsible for the security of data residing on servers owned or operated by Merchant, or a third party designated by Merchant (e.g., a web‐hosting company, processor or other service provider). Merchant shall comply with all applicable laws, policies and regulations governing the security, privacy, collection, retention and use by Merchant of Cardholder data, including, without limitation, financial information, card account numbers, and all other personally identifiable Cardholder information. Merchant agrees to provide notice to Cardholders on Merchant’s website that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement. 15.6 Merchant will comply with all then‐current legal obligations and security measures, as applicable, including without limitation those issued by AURFY and the Federal Trade Commission, associated with the collection, security, dissemination and destruction of Cardholder and Transaction data, and expressly including the Payment Card Industry Data Security Standard (PCI DSS). Merchant acknowledges that Merchant is responsible for the security of Cardholder data while in Merchant’s possession. 15.7 Merchant warrants that Merchant has taken such precautions as are necessary to ensure that Merchant’s server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Merchant’s system is breached and an unauthorized third party has access to or has accessed Cardholder data or Transaction data. Merchant shall notify AURFY promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future.
15.8 Merchant agrees that Cardholder will comply with all AURFY security protocols and security advisories in effect during the term of this Agreement. Merchant is solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by AURFY associated with Merchant’s account and verifying that all corresponding funds are accurately processed. Merchant acknowledges that AURFY shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Merchant’s account, Cardholder or Transaction data.
16. ASSIGNMENT, AMENDMENTS. The Merchant shall not, without the prior written consent of AURFY, assign or transfer any of its rights or obligations under this Agreement. This Agreement may be amended only by the agreement of both parties in writing provided that AURFY shall be entitled at any time to vary or supplement such terms of this Agreement which relate to matters purely of an operational nature by giving not less than 30 days’ written notice to the Merchant. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. 17. GOVERNING LAW. This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, excluding (i) that body of law known as conflicts of law and (ii) the United Nations Convention on Contracts for the International Sale of Goods. Merchant hereby irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in Santa Clara County, California with respect to any action, claim or proceeding arising out of or related to this Agreement and agree not to commence or prosecute any such action, claim or proceeding other than in such courts. No action, regardless of form, arising out of or in conjunction with the subject matter of this Agreement, except for claims involving intellectual property, claims to recover outstanding amounts due AURFY and claims for indemnification, may be brought by either party more than one year after the cause of action arose.
infiltration or disruption of the Services by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the AURFY Services, or other catastrophes or any other occurrences which are beyond such Parties’ reasonable control (each a “Force Majeure Event”), provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event. 19. NOTICES AND CONSENTS. All notices to AURFY shall be given electronically, via the electronic mail address provided by or for Merchant during registration for the AURFY Services, to support@aurfy.com. Notice to terminate Services shall also be sent to AURFY in writing and sent to AURFY Inc., 530 Lakeside Drive, Sunnyvale, CA, 94085, Attention: General Counsel. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or seven (7) days after the date of mailing if sent by certified or registered mail, postage prepaid. Electronic mail notices shall be deemed given the next business day following the date delivered. All notices to Merchant will be delivered via electronic mail or first class mail to the addresses on file with AURFY.
20. RELATIONSHIP BETWEEN THE PARTIES. No agency, partnership, joint venture or employment relationship is created between AURFY and Merchant and Cardholder by way of this Agreement. In the performance of their respective obligations hereunder, the Parties are, and will be, independent contractors. Neither Party will bind, or attempt to bind, the other Party to any contract or the performance of any obligation, and neither Party will represent to any third party that it has any right to enter into any binding obligation on the other Party’s behalf.
21. SERVERABILITY AND WAIVER. If any provision of this Agreement or its application to any party or circumstances shall be determined to be invalid and unenforceable to any extent, the remainder of this Agreement, or the application of such provision or circumstances other than those as to which it is determined to be invalid or unenforceable, shall not be affected thereby and each provision hereof shall be valid and shall be enforced to the fullest extent permitted by law.
22. NON‐DISPARAGEMENT; PUBLICITY. During the term of the Agreement, neither party will disparage the other party or the other party's trademarks, web sites, products or services, or display any such items in a derogatory or negative manner on any web site or in any public forum or press release. Unless otherwise stated herein, neither party shall issue a press release or otherwise advertise, make a public statement or disclose to any third party information pertaining to the relationship arising under this Agreement, the existence or terms of the Agreement, the underlying transactions between AURFY and Merchant, or referring to the other party in relation to the Agreement without the other party's prior written approval.
