Terms of Service (MSA)
These Terms of Service (“Agreement”) are between you, together with any entity you are representing (collectively, “You”), and Auryc (“Auryc,” “We,” “Us,” or “Our”). By registering with Auryc, using Our website at Auryc.com or any mobile version of Our website (together, “Site”), or using any services provided through Our Site (“Services”), (1) You agree to be bound by this Agreement and (2) You represent that You are eighteen (18) years of age or older and, if You are representing an entity, You have all required authority and power to bind the entity to this Agreement. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, OR ANY OF THE ADDITIONAL TERMS THAT APPLY TO YOU, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU RE NOT AUTHORIZED TO ACCESS OR USE OUR SITE OR SERVICES.
1. Auryc Site; Site Content.
The Auryc Site is a copyrighted work belonging to Auryc. We or Our suppliers exclusively own the information and content made available on or through the Site (other than information or content You provide) and the information and content in any communications Auryc sends You (collectively, “Site Content”). You may use the Site and Site Content only in accordance with this Agreement. Subject to the terms and conditions of this Agreement (including Your compliance with this Agreement), Auryc grants You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to view and use the Auryc Site Content (other than Software (defined in Section 4 below) which is licensed only under the terms of Section 4 below) for Your personal or internal business purposes. You may not use the Auryc Site Content except as expressly authorized under this Agreement. You agree that any copy of the Auryc Site Content that You make shall retain all copyright and other proprietary notices in the same form and manner as on the original. Except as expressly authorized under this Agreement or to the extent otherwise permitted under applicable law, You may not use, download, upload, print, display, perform, reproduce, publish, license, post, transmit, modify, create derivative works of, reverse engineer, disassemble, decompile, adapt, distribute, transfer, or exploit any Auryc Site Content in whole or in part without Our prior written authorization.
2. Your Account
To access or use Our Services, You will be required to register and obtain an account on the Site. You will receive (or choose) a password upon completing the registration process. You are responsible for maintaining the confidentiality of Your password, and all activities that occur under Your account. You agree to (1) immediately notify Us of any unauthorized use of Your account or any other breach of security and (2) ensure that You fully exit from Your account at the end of each session. We will not be liable (to You or any third party) for any loss or damage arising from or related to the unauthorized use of Your account (unless such use is directly caused by Our negligence or breach of these terms or otherwise required herein).
3. Service Subscriptions
Auryc offers several subscription plans with a range of Services for purchase,(each, a “Service Subscription”). If You have purchased a Service Subscription, upon activation of Your account We will provide the Services under the Service Subscription that You elected. Subject to Your compliance with these Terms of Service and the other terms referenced herein, Auryc grants You a non-exclusive, non-transferable, revocable, limited license to remotely access and use, solely for Your internal business purposes, the Auryc software (in executable code only) (“Software”) through the Auryc Site as permitted for the Service Subscription purchased by You.
4. Fees and Payment
You shall pay the fees set forth for the Service Subscription purchased by You. Unless otherwise stated, all fees are quoted in U.S. Dollars. Auryc will bill You and You agree to pay for (i) the annual fee, as applicable, in advance for the annual Service Subscription purchased by You, and (ii) the transaction fees and all other fees and/or pursuant to work orders entered into by You and Auryc, in each case in accordance with the payment terms or such work order, as the case may be. Unless a different payment method is agreed in writing between You and Auryc, Auryc will debit all fees payable by You to Auryc directly from the credit card account designated by You in Your account information with Us to receive the Services under the Service Subscription purchased by You and to use the Software in accordance with Section 4 above. The terms applicable to the payment method shall be between You and Your credit card company. If we reasonably suspend a portion of Your Services due to an uncured violation by You of this Agreement, or any applicable laws or regulations, You will remain responsible for the payment of all applicable fees. All fees hereunder exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and You will be responsible for payment of all such taxes (other than taxes based on Auryc’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment thereof hereunder or from Your access to or receipt of the Services or Software license hereunder. Notwithstanding early termination of any given Service Subscription, You agree that You shall be responsible for paying the fees for the entire duration of the Service Subscription You ordered unless such termination is due to our breach of these terms or any work order.
5. Your Content
We agree that You retain ownership of all information and content You provide on Your website (“Your Content”) in connection with your use of the Services. During the period that Auryc provides Services to You, You hereby grant to Auryc a non-exclusive, , non-sublicensable, royalty-free, worldwide license, under all of Your applicable intellectual property rights, to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that Your Content works better with Our Services), communicate, publish, publicly perform, publicly display and distribute such Content solely for the sole purpose of providing the Services during the term of the Service Subscription .
Auryc shall observe complete confidentiality with respect to all information furnished or otherwise made available to Auryc that is not generally known outside of You or Your affiliates (“Confidential Information”). Auryc shall restrict disclosure of such Confidential Information to its employees, agents, and subcontractors on a need-to-know basis for the purpose of discharging its obligations to you hereunder, and Auryc shall ensure that such employees, agents, and subcontractors are subject to substantially similar obligations of confidentiality as set forth herein, provided that Auryc will be responsible and liable for any breach of this Section by such persons. The foregoing obligations of confidentiality do not apply to the extent such information is (a) or becomes publicly available through no breach of this Agreement by the recipient; (b) rightfully in the recipient’s possession without obligation of confidence prior to receipt from the disclosing party; (c) rightfully obtained from a third party having the right to disclose such information without restriction as to use or disclosure; (d) information that the recipient can document was independently developed by the recipient without reference to or use of the Confidential Information; or (e) required to be disclosed by law, a court of competent jurisdiction, or regulatory body; provided that immediately upon receiving any such request, and to the extent that it may legally do so, Auryc promptly notifies you in writing of such requirement to enable you to seek a protective order to protect the confidentiality of such information, take action to assure confidential handling of the Confidential Information, or take such other action as you deem appropriate to protect the Confidential Information. To the extent that the receiving Party must disclose Confidential Information pursuant to this Section, any such disclosure shall be limited to only that Confidential Information required to be disclosed to comply with the order of the relevant court or regulatory body In the event of any unauthorized use, disclosure, loss of, or inability to account for any Confidential Information, Auryc shall promptly notify you upon becoming aware thereof and shall (i) assist in remedying each unauthorized use or disclosure, and (ii) will cooperate with you in any litigation brought by you against third parties to protect its rights in the Confidential Information. Auryc acknowledges that any unauthorized disclosure or use of the Confidential Information shall be considered a material breach of this Agreement and would result in irreparable harm and significant injury to you, the degree of which may be difficult to ascertain. Therefore, it is agreed that, in addition to any other remedies that may be available to you upon any such violation or threatened violation hereof, you shall have the right to enforce this Agreement by seeking specific performance, injunctive relief, or by any other means available to you at law or in equity, and Auryc hereby waives any requirement for the security or posting of any bond in connection with such enforcement.
Auryc hereby acknowledges that, during the performance of this Agreement, Auryc may have access to or receive personal information relating to you or your clients’ current or prospective customers, consumers, or personnel (or representatives of the foregoing) that may include information that identifies or could identify a customer, consumer, or person working for you, including, without limitation, name, address, email address, phone number, date of birth, job title, driver’s license or credit card information (all hereinafter referred to as “Personal Information”). Auryc hereby agrees that Personal Information may only be used for the purpose of providing Services and will be treated as Confidential Information as stated herein. Without limiting the foregoing or any of its other obligations under this Agreement, Auryc will protect and keep all Personal Information confidential, and handle in accordance with all applicable laws. Auryc further agrees that it will: (a) maintain adequate administrative, technical, organizational, and physical safeguards to ensure the security and confidentiality of Personal Information, protect against any anticipated threats or hazards to the security or integrity of Personal Information, and protect against unauthorized access, use, or alteration of Personal Information; (b) not disclose any Personal Information to any person unless you have given prior written consent to such disclosure; (c) promptly, but in no event more than two (2) business days, notify you if Auryc becomes aware of any accidental or unauthorized disclosure, access, or use of any Personal Information, and reasonably cooperate with you in the event of any accidental or unauthorized disclosure, use, loss, damage, or destruction of Personal Information; and (d) oversee any third-party service providers (if so permitted hereunder) by taking steps to ensure that any such third-party service provider implements and maintains appropriate security measures for Personal Information in accordance with the requirements of this Agreement, and Auryc shall remain responsible and liable for any unauthorized disclosure of Personal Information by such third parties. Auryc’s notice under subsection (c) must identify: (i) the nature of the unauthorized use or disclosure; (ii) the Personal Information used or disclosed; (iii) who made the unauthorized use or received the unauthorized disclosure; (iv) what Auryc has done or will do to mitigate any deleterious effect of the unauthorized use or disclosure; and (v) what corrective action Auryc has taken or will take to prevent future similar unauthorized use or disclosure. Auryc will be liable for costs associated with a data breach caused by Auryc, including the actual costs incurred with notification and mitigation. Upon termination of this Agreement for any reason and upon written request by you, or upon written request by you at any time, Auryc shall promptly return to you all Personal Information.
7. Representations and Warranties.
You represent and warrant with respect to Your Content that: (i) You have all the rights necessary to grant the licenses granted herein to Auryc in and to Your Content; (ii) Your Content will not infringe or misappropriate any third party’s intellectual property or proprietary rights; (iii) violate any law, statute, ordinance or regulation; (iv) be defamatory, trade libelous, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities; (v) be obscene or contain child pornography; or (vi) You will use commercially reasonable endeavors to ensure Content does not contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. In addition, You represent and warrant that Your use of the Services to collect or attempt to collect personally identifiable information of any person does not violate or breach any implicit or explicit agreement between You and such person or any implicit or explicit representation or warranty made by You to such person. You further represent and warrant that You will not use the Services to collect Personal Information from anyone You know or have reason to believe is under the age of 13. You shall not sublease Your account or other access to Your account to third parties; or engage in activities that may create liability for Auryc, or its affiliates or service providers, or expose them to undue risk. Your failure to comply with the covenants set forth in this section will amount to a breach of this Agreement and is cause for immediate suspension and/or termination by Auryc of the Services with or without notice to You.
Auryc represents and warrants to you the following: (a) it has full authority and sufficient rights to grant and convey the rights granted to USAP under this Agreement; (b) it is skilled and experienced in providing the Services and shall perform the Services in a good and workmanlike manner using qualified personnel having a level of skill necessary to meet the requirements of the work orders; (c) the Services or Service Subscription will not infringe or misappropriate any third party’s intellectual property or proprietary rights; (d) Auryc shall perform the Services in compliance with all applicable international, federal, state, and local laws and regulations. Auryc shall be responsible for any and all fees, penalties and interest, which result from Auryc’s failure to comply with such laws and regulations; and (e) Auryc shall maintain industry standard security on its systems, and any technology used by Auryc in connection with the Services and/or the Subscription Service shall not contain (i) any disabling mechanisms, i.e. features that would impair in any way its operation in the manner for which it was designed including but not limited to time bombs (where “time-bombs” are defined as a routine, code or instruction that is designed to disable, delete, repossess, modify, damage, erase or otherwise cause the technology or service to not perform in accordance with the documentation or agreed upon specifications), access restrictions, deactivating code, locks or drop dead devices; (ii) any back-doors, (iii) unidentified content, scripts, programs or metatags; and (iv) any viruses, including but not limited to trojan horses or worms. Auryc shall use commercially standard anti-virus protection and promptly remedy any viruses detected on its system
You agree to indemnify and hold Auryc and each of their respective officers, directors, agents, and employees (“Indemnified Parties”), harmless from any and all losses, costs, liabilities, damages or expenses (including attorneys’ and expert witnesses’ fees) incurred by any third party in connection with or arising from: (a) any breach of the representations or warranties in Section 8 of this Agreement, (b) Your Content, (c) Your use of the Services, or (d) claims made by any party based on Your breach of this Agreement or the Additional Terms.
Auryc agrees to indemnify and hold You, and each of your respective officers, directors, agents, and employees (“Indemnified Parties”), harmless from any and all losses, costs, liabilities, damages or expenses (including attorneys’ and expert witnesses’ fees) incurred by any third party in connection with or arising from: (a) any breach of the representations or warranties in Section 8 of this Agreement, (b) Your provision of the Services or Subscription Services, (c) claims made by any third party based on Your breach of this Agreement; or (d) Auryc’s gross negligence or willful misconduct.
You are invited to send Us any feedback or suggestions regarding the Site, Site Content, or Services (collectively, “Feedback”), provided that Auryc alone will own all right, title and interest, including all related intellectual property rights, in and to all Feedback and you hereby assign such Feedback to Auryc free of charge. In the event such assignment is deemed to be legally unenforceable, You hereby grant Auryc a worldwide, perpetual, irrevocable, exclusive, freely-transferable, fully paid, and royalty free license for Auryc to reproduce, modify, create derivative works from, distribute and otherwise use and exploit in any manner and for any purpose any and all Feedback. If You do not want Auryc to own or use Feedback, do not provide Feedback to Auryc.
10. Third Party Links.
The Site may contain links to other websites operated by third parties. Such third party websites are not under the control of Auryc and Auryc is not responsible for the content of any third party website or any link contained in a third party website. Auryc provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party websites. If You decide to access any of the third party websites linked to the Site, You do this entirely at Your own risk. Third party websites are subject to their own terms and policies, including privacy and data gathering practices. Auryc MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY THIRD PARTY WEBSITE LINKED TO THE SITE INCLUDING ANY WARRANTIES OF THE ACCURACY, OWNERSHIP, VALIDITY, OR LEGALITY OR ANY CONTENT OF A LINKED THIRD PARTY SITE.
11. Warranty Disclaimer.
EXCEPT AS OTEHRWISE SET FORTH HEREIN Auryc DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, , MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSESome jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to You.
12. Limitation of Liability
EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOST USE, LOST DATA, OR LOST PROFITS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY ADDITIONAL TERMS), THE SITE, SITE CONTENT, OR SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE SUBSCRIPTION FEE PAID OR PAYABLE BY YOU FOR SUCH SERVICES LIMITED TO THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE FIRST CLAIM GIVING RISE TO SUCH LIABILITY AROSE. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ALTER THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION. Some jurisdictions do not allow the limitation of liability, so the foregoing limitation may not apply to You.
13. Suspension and Termination
(a) Suspension. At the reasonable discretion of Auryc if Auryc determines providing Services to you presents undue risk (e.g. fraud or violations of law) to Auryc, Auryc may suspend Your account by deactivating any access by You (and if You are a Vendor, by Your customers) to any information or data contained on the Services or related to Your account while maintaining such information and data on servers operated by or on behalf of Us. In the event of any breach by you of this Agreement, You will be notified and given an opportunity to correct any breach of this Agreement. If such breach is not corrected within thirty (30) days of the receipt of such notice Your account (and if You are a Vendor, Your customers’ access to the Services provided in connection with Your account) may be terminated under Section 14(b) of this Agreement. In the event of a suspension, fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such fees during any such period of reasonable suspension.
(b) Termination. This Agreement shall remain in full force and effect until it is terminated in accordance with the terms of this Agreement. This Agreement may be terminated either by either party upon breach of the other party which remains uncured for thirty days. If You terminate the Agreement due to Auryc’s breach, you will not be required to pay any further fees under the Agreement to Auryc notwithstanding anything to the contrary set forth in this Agreement.You may terminate this Agreement within twenty-four hours’ following Your written notice to email@example.com marked as follows: “Attention: Termination of Account”.
(c) Rights upon Termination. In the event of termination for any reason, the licenses granted to You under this Agreement shall automatically and immediately cease and You shall destroy all copies of the Software in Your possession, if any. Upon termination, there will be no refund provided to You except as otherwise set forth and all outstanding fees owed by You shall become immediately due and payable except as otherwise set forth in Section 14(b). Upon termination, Auryc shall immediately return or destroy all of your Confidential Information. Termination shall not affect the rights of either party to recover losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys’ fees or expert witnesses’ cost or other costs of any kind under this Agreement. The following Sections will survive any termination of Your account or this Agreement: , 4 (with respect to any fees payable as of the date of termination), 7, 8, 9, 10, 11, 12, 13(c), and 15.
14. Force Majeure.
Neither party’s delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by any labor dispute, shortage of materials, fire, earthquake, flood, telecommunications failure, failure of Auryc’s cloud service provider, or any other similar cause beyond a party’s reasonable control.
15. General Provisions.
You and Auryc are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. No party shall assign, transfer or delegate this Agreement or any rights or obligations hereunder except in connection with a change in control transaction. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state or jurisdiction. By using the Site, Site Content or Services, You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for California for any lawsuit filed there arising from or related to this Agreement. This Agreement constitutes the entire agreement between You and Auryc regarding the use of the Site, Site Content, and Services and may not be amended without the written consent of both parties.