Volance

Privacy Statement, Terms & Conditions

By using the MerchantGuard service (the “Service”), a product of Volance, LLC (“Volance”), you agree to be bound by the terms and conditions of this User Agreement (“Agreement”). Please read this Agreement carefully before using the Service, as it sets forth important obligations you must meet concerning data privacy, and also contains provisions that limit Volance’s liability in connection with your use of the Service. If you do not agree to all of the terms and conditions set forth in this Agreement, you shall not use the Service or any portion of it, and any such use shall be unlicensed and prohibited.

Volance may revise the terms of this Agreement from time to time, and the most current version will be available online at the following URL: http://www.volance.com/terms_and_conditions.php. If the revision, in Volance’s sole discretion, is material, Volance will notify you by e-mail to the email associated with your account, or through such other means as may be reasonably expected to make you aware of the revision. By continuing to use the Service after those revisions become effective, you agree to be bound by the revised Agreement.

Grant of License

For the term of this Agreement, and provided that you meet all the conditions set forth in this Agreement, Volance hereby grants to you a limited, nonexclusive, revocable, nontransferable right to use the Service, solely for your own internal business purposes and not on behalf of or for the benefit of any third party. Volance reserves all rights not expressly granted to you in this Agreement. Volance does NOT grant any license or permission for you to store, capture, cache, or otherwise record or save, either temporarily or permanently, any information provided by the Service for any purpose other than to prevent fraudulent transactions from being accepted at your business.

Upgrades to the Service

You acknowledge that Volance may from time to time, but is not obligated to, provide upgrades to the Service. You consent to such automatic upgrading, and agree that the terms and conditions of this Agreement (as amended from time) will apply to all such upgraded versions.

Pricing and Payment

You agree to pay for the Service in advance, in the amounts and pursuant to the terms provided to you during your registration for the service or as otherwise provided to you by Volance. The license and all other rights granted to you in this Agreement are conditioned upon your account being up to date. Nonpayment of fees when due shall be considered a breach of this Agreement giving rise to a right of Volance to suspend or terminate your use of the Service as provided in this Agreement.

Pricing is based on a sliding scale posted at Volance.com, or as agreed to in writing by Volance. Pricing is based on the following: You will be charged a one time setup fee when you open your account. This fee is non-refundable under any circumstances. In addition, you will be charged a monthly access fee that will be presented on Volance.com and which is subject to adjustment from time to time. Volance reserves the right to change or increase this access fee with 30 days advance notice at Volance.com. Finally, you will be charged at the start of each billing period (the same date that you signed up, so the 25th day of each month), for the number of lookups your business performed. The fee per lookup is based on how many lookups were made during the previous 30 days. Volance reserves the right to discontinue service immediately should payment be declined.

You shall remain responsible for any amounts still owed to Volance at the time of your termination or cancellation. Volance will take any and all reasonable measures, including the use of collection agencies and attorneys, to collect amounts due. You agree to pay any reasonable costs associated with such collection. Returned payments are subject to a $50 service fee.

Restrictions on Use

You may use the Service only to assist you in evaluating whether a prospective online purchaser of your goods or services (an “End User”) is attempting to make such purchase using fraudulent credit card or other banking credentials. You shall not, either directly or indirectly, (i) modify, adapt, alter, translate, copy, perform and display (publicly or otherwise) or create derivative works based on the Service, (ii) merge or bundle the Service with other software or services, (iii) sublicense, lease, rent, or loan the access to the Service, (iv) except as expressly permitted under Section 14 below, transfer your right to use the Service, (v) provide the use of the Service in any service bureau, rental or time-sharing arrangement,(vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Service, or (vii) remove, modify or obscure any identification or proprietary or restrictive rights markings or notices (including notices relating to patent rights or claims of copyright) used in connection with the Service.

Except by means of your authorized use of the Service, you shall not compile, assemble, organize or collect any information pertaining to End Users for use either for your own internal business purposes or for the benefit of any third party.

You represent and warrant that you will use the Service only in connection with the offer to sell goods or services in jurisdictions in which your use of the Service is in compliance with all applicable laws and regulations, including laws and regulations pertaining to data privacy and information security.

Data Privacy

You acknowledge that when activated in connection with your account, the Service collects and compiles extensive data about each End User. Such information includes but is not limited to: name, location, IP address, credit card information, time of access, and information concerning the End User’s browser configuration. During the time period that you use the Service, you shall conspicuously include in every agreement with every End User a disclosure that such information may be collected from the End User. Such disclosure shall include at least as much detail concerning the information collected as is found in this Agreement, but in no event shall provide sufficient information that would constitute a breach of your obligation of confidentiality found in Section 13 below. You shall ensure that all End Users consent to such data collection, and shall, upon Volance’s reasonable request, permit Volance to inspect your business records to ensure that such consent has been obtained from each End User.

You understand that if you terminate services with Volance, your user data will still be stored and used to score future transactions for other merchants. Volance may offer enhanced services to which you must subscribe in order to opt out of sharing of data. In all circumstances, however, Volance shall retain ownership of all data and information generated by your use of the Service.

Data Provided to Volance

In the course of your use of the Service, Volance will collect data about the transactions, including name, address, phone number, IP addresses, true IP addresses, browser information, cookie information, information collected on your order form, partial truncated credit card numbers, and other information necessary to place an order with the merchant. Thereafter, Volance may use this data to enhance the services provided to you and to other users of the MerchantGuard or other similar services provided by Volance. You hereby grant to Volance an irrevocable and perpetual license to undertake such data collection and use (such right to survive the termination or expiration of this Agreement).

Term and Termination

The term of this Agreement shall be that duration selected by you in the registration process for the Service and shall automatically renew for periods of the same duration unless either party provides to the other party written notice no later than 30 days prior to the expiration of the then-current term of that party’s intention that the Agreement not be renewed.

Subject to Section 17 below pertaining to force majeure, either party may terminate this Agreement for material breach, provided, however, that the nonbreaching party has given the other party at least 14 days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party’s right to exercise any other remedy for breach.

Disclaimer

THE SERVICE IS PROVIDED “AS-IS.” VOLANCE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SERVICE OR ITS OPERATION. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, VOLANCE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF NON- INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY IN FULL. YOU ACKNOWLEDGE THAT THE SERVICE MAY NOT PERFORM ALL INTENDED FUNCTIONS OR OPERATE PROPERLY, MAY INTERFERE WITH OTHER SOFTWARE APPLICATIONS, MAY CONTAIN BUGS, AND MAY CAUSE DATA LOSS OR OTHER PROBLEMS. VOLANCE DOES NOT GUARANTEE THAT ANY SPECIFIC PROBLEMS WITH THE SERVICE WILL BE CORRECTED.

Internet Delays

The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Volance shall not responsible for any delays, delivery failures, or other damages resulting from such problems.

Indemnification

You shall defend, indemnify and hold Volance, its officers, directors, agents and employees harmless against any and all claims, suits, proceedings, damages, judgments and expenses (including reasonable attorney’s fees) or settlement thereof in connection with or arising from any third party claim based upon any breach by you of any warranty or other provision in this Agreement.

Volance shall defend, indemnify and hold you harmless against any and all claims, suits, proceedings, damages, judgments and expenses (including reasonable attorney’s fees) or settlement thereof in connection with Volance’s warranty that the Service does not infringe upon the intellectual property rights of any third party. Notwithstanding the foregoing, in the event any portion of the Service becomes, or in Volance’s opinion is likely to become, the subject of a claim of infringement for which indemnity is provided above, Volance may, at its sole option, attempt to procure on reasonable terms the rights necessary for you to exercise your license rights under this Agreement with respect to the infringing items, or to modify the infringing items so that they are no longer infringing without substantially impairing the function or performance of the Service. If Volance is unable to do the foregoing after reasonable efforts and subject to the limitation of liability, then Volance may send a notice of such inability to you together with a refund of any fees received by Volance from you during the preceding 6 months, in which case Volance shall not be liable to you for any damages resulting from infringing activity with respect to the infringing items occurring after such notice and refund.

Limitation of Liability

IN NO EVENT SHALL VOLANCE BE LIABLE TO ANY PARTY FOR DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM THE USE OF THE SERVICE, ON ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE, EVEN IF VOLANCE HAS BEEN EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SOME JURISDICTIONS RESTRICT THE LIMITATION OF LIABILITY OR DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IF ANY PART OF THE LIMITATION OF DAMAGES SET FORTH ABOVE IS UNENFORCEABLE UNDER APPLICABLE LAW, VOLANCE’S AGGREGATE LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

Confidentiality

You agree to hold all information relating to Volance that is known to be confidential or proprietary in confidence, and shall not disclose or use any such information except to the extent that such disclosure or use is reasonably necessary to the performance of your duties and obligations under this Agreement.

No Assignment

Neither party may assign this Agreement without the consent of the other party and any purported assignment without consent shall be void. Notwithstanding the foregoing restriction on assignment, either party may assign this Agreement to a purchaser or other successor in interest (by merger or otherwise) to all or substantially all the assets of the assigning party.

Governing Law and Choice of Forum

This Agreement shall be interpreted and construed according to, and governed by, the laws of the State of Illinois, without regard to its conflict of law principles. The United States District Court for the Northern District of Illinois shall have exclusive jurisdiction to hear any dispute under this Agreement and venue shall be proper there or, if such court is without jurisdiction, the Circuit Court of Cook County, Illinois shall have exclusive jurisdiction, and venue shall be proper there.

No Waiver

The waiver by either party of any breach of covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed either electronically or in hard copy format by authorized representatives of the parties.

Force Majeure

Neither party shall be liable for any delay or failure in performance of any part of this Agreement to the extent such delay is caused by events or circumstances beyond the delayed party’s reasonable control.

Relation of the Parties

The performance by Volance of its duties and obligations under this Agreement shall be that of an independent contractor, and nothing herein shall create or imply an agency relationship between Volance and you, nor shall this Agreement be deemed to constitute a joint venture or partnership between the parties.

Severability

If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.

Entire Agreement

This Agreement constitutes the entire agreement between Volance and Merchant with respect to the Agreement’s subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Volance and Merchant acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated in this Agreement.