text: BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE MASTER TERMS AND CONDITIONS (THIS "AGREEMENT") OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY OTHERWISE USING OR ACCESSING THE COMPANY PLATFORM (AS DEFINED BELOW) (THE "ACCEPTANCE"), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM "MERCHANT" WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE COMPANY PLATFORM.
  This Agreement, by and between Merchant and Recurly, Inc. ("Recurly"), is effective as of the date of Acceptance (the "Effective Date") and governs Merchant’s use of Recurly’s online recurring billing software-as-a-service platform, including any software, documentation or data related thereto (the "Services"). Each of Recurly and Merchant may be referred to herein individually as a "Party" or collectively as "Parties".
  1. Recurly Service
  - Subject to the terms of this Agreement, Merchant is hereby granted a nonexclusive right during the Term (as defined below) to use the Services, as well as any Add-On Services (as defined in the Order Form) and Professional Services (together with the Service, the "Ordered Services"), each as set forth on the attached order form and any other order form subsequently executed by the parties (each, an "Order Form").
  - Recurly will use commercially reasonable efforts to provide Customer the Services.
  - Subject to the terms of this Agreement, Recurly will perform the Professional Services as set forth on (a) the Order Form, or (b) a separate, mutually executed Statement of Work ("SOW"), as applicable.
  - Recurly may reasonably suspend Merchant’s access to the Services at any time in its reasonable discretion if it possesses a good faith belief that Merchant’s (or any of its users) use of the Service is in violation of Sections 3(b), 3(e), or 5(b) of this Agreement. Merchant acknowledges that the operation of the Service may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Recurly will not be responsible to Merchant or others for any such interruptions, errors or problems or an outright discontinuance of the Service. Recurly has no obligation to continue producing or releasing new versions of the Service.
  - Recurly is and will continue to be PCI compliant. Recurly keeps a protected copy of the credit card numbers and/or checking account information of Merchant’s customers ("Payment Information"). This Payment Information belongs to Merchant (and Merchant’s customers). By utilizing the Service, Merchant grants Recurly a license to use this Payment Information for the purposes of fulfilling our Service obligations to Merchant and Recurly will otherwise use commercially reasonable efforts to keep such information confidential and secure in accordance with general industry standards.
  - Recurly agrees to comply with all applicable state and federal laws and regulations (including those relating to privacy and data security), with regards to its use, access and storage of billing data on Merchant’s behalf.
  2. Service Implementation and Registration
  - Merchant agrees to use the Service only through Merchant’s website or software application that Merchant owns and controls (the "Site"), and to implement the Service on the Site in accordance with Recurly’s documentation. Recurly may suspend or rate limit the Service in the event Recurly finds any implementation issues with the Site. Such suspension or limitation will remain in effect until Merchant corrects any issues specified by Recurly and a suspension or rate limitation will not relieve Merchant of Merchant’s payment obligations under the Agreement.
  - Merchant agrees to provide Recurly with current, complete and accurate registration information as prompted by the Service registration process and to maintain and properly update such information ("Registration Data"). If Merchant is using the Service to conduct credit card transactions through the Recurly Payment Gateway, Merchant will set up and maintain an account that is capable of receiving funds through a merchant bank account ("Merchant Bank Account"). Merchant authorizes Recurly to confirm that the Merchant Bank Account is and remains in good standing with a financial institution as long as Merchant is using the Service. If Merchant is using the Service to conduct ACH transfers, Merchant must set up an account relationship with Recurly’s ACH processor(s).
  - Merchant further agrees that, in providing Registration Data, Merchant will not knowingly omit or misrepresent any material facts or information and that Merchant will promptly enter corrected or updated Registration Data via the Service, or otherwise advise Recurly promptly in writing of any such changes or updates. Merchant further consents and authorizes Recurly to verify Merchant’s Registration Data as required for Merchant’s use of and access to the Service. Once Merchant subscribes to the Service, Merchant will receive a unique user ID and password in connection with Merchant’s account (collectively referred to herein as "IDs"). Merchant agrees that it will not allow another person to use its IDs to access and use the Service under any circumstances. Merchant is solely and entirely responsible for maintaining the confidentiality of Merchant’s IDs and for any charges, damages, liabilities or losses incurred or suffered as a result of Merchant’s failure to do so. Recurly are not liable for any harm caused by or related to the theft of Merchant’s IDs, Merchant’s disclosure of its IDs or Merchant’s authorization to allow another person to access and use the Service using its IDs. Furthermore, Merchant is solely and entirely responsible for any and all activities that occur under Merchant’s account including any charges incurred relating to the Service. Merchant agrees to immediately notify Recurly of any unauthorized use of its account or any other breach of security known to Merchant. Merchant acknowledges that the complete privacy of its data and messages transmitted while using the Service cannot be guaranteed.
  - Recurly is not liable for any losses relating to chargebacks, fraudulent charges or other actions by Merchant or Merchant’s customers that are deceptive, fraudulent or otherwise invalid ("Fraudulent Actions"). By using the Service, Merchant hereby releases Recurly from any liability arising from Fraudulent Actions. Merchant will also use best efforts to promptly notify Recurly of any Fraudulent Actions which may affect the Service. Recurly reserves the right, in its sole discretion, to terminate Merchant’s account if Merchant engages in, or permits any other user or customer to engage in, Fraudulent Actions.
  3. Service Use and Limitations.
  - Recurly is a subscription management and billing software service, as well as a payment gateway service. Merchant acknowledges and agrees that: (i) Recurly is not a bank or other chartered depository institution and (ii) Recurly will not be holding any monies for Merchant or Merchant’s customers. Accordingly, Merchant agrees that Recurly will not be responsible or liable for any amounts related to any credit-card or payment transaction.
  - The rights granted herein are subject to the following restrictions (the "License Restrictions"). Merchant will not directly or indirectly:
  - reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Service;
  - attempt to probe, scan or test the vulnerability of the Service, breach the security or authentication measures of the Service without proper authorization or wilfully render any part of the Service unusable;
  - use or access the Service to develop a product or service that is competitive with Recurly’s products or services or engage in competitive analysis or benchmarking; or
  - otherwise use the Service outside the scope expressly permitted hereunder and in the applicable Order Form.
  - In order to provide the Service, Recurly is required to access, use and/or provide Merchant’s and/or Merchant’s customers’ information and data ("Customer Data”), including, but not limited to, Payment Information. Recurly will access and use Customer Data solely as reasonably necessary to provide the Ordered Services (including any Third Party Account Services (as defined below)) to Merchant. Recurly does not own the Customer Data. Merchant, not Recurly, will have sole responsibility for the accuracy, quality, integrity, legality and intellectual property ownership of all Customer Data and, except as expressly set forth in this Agreement, Recurly will not be responsible or liable for the deletion, correction, destruction, damage or loss of Customer Data not caused by Recurly. Merchant acknowledges and agrees that it is solely responsible for obtaining any and all consents necessary for Recurly to access, use and provide the Customer Data to provide the Service to Merchant, including any Third Party Account Services (as defined below).
  - The Service may provide Merchant with access to, be integrated with, or contain links or references to, products, services (including Add-On Services provided by third parties), data, information, sites or other materials which are provided or operated by third parties (collectively, "Third Party Products"). Third Party Products are not under Recurly’s control and Merchant acknowledges that Recurly is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such Third Party Products. Any purchase or use of Third Party Products by Merchant may be subject to separate or additional terms. Merchant will comply with all Third Party Terms and will indemnify and hold Recurly harmless from all damages, costs, settlements, attorneys’ fees and expenses arising from or related to Merchant’s breach of any Third Party Terms. Any provision by Recurly of Third Party Products and any exchange of data between Merchant and any third-party provider of a Third Party Product is solely between Merchant and the applicable third-party provider. Certain Third Party Products (e.g. account updater and risk management services) require the use of Customer Data (including Payment Information) ("Third Party Account Services"). In the event Merchant purchases or uses any Third Party Account Services, Merchant acknowledges and agrees that Recurly may provide Customer Data to the applicable Third Party Account Services provider in order to enable Merchant’s use of such service.
  - Merchant represents, warrants and agrees that Merchant will only use the Ordered Services in compliance with all applicable laws and regulations, and that Merchant will not use the Ordered Services to violate, infringe or misappropriate any intellectual property or other proprietary right of any third party (including, without limitation, any rights of privacy or publicity). Without limiting the foregoing, when using or otherwise accessing the Ordered Services, Merchant will at all times comply with Recurly’s then-current Acceptable Use Policy for the Service (the "AUP"), which is hereby incorporated into this Agreement by this reference.
  - Following any termination or expiration of this Agreement or Merchant’s Recurly account, Recurly will retain a copy of Merchant’s billing data for a period of thirty (30) days. Merchant acknowledges and agrees that (i) Merchant is solely responsible for exporting a copy of Merchant’s billing data prior to any such termination or expiration and (ii) if Merchant requires access to such data following any such termination or expiration, Merchant may be required to pay professional service fees to Recurly to retrieve such data. In addition, Recurly will not be obligated to release any such billing data or to allow the export thereof if Merchant (or Merchant’s third party designee to receive such data, as applicable) do not demonstrate PCI compliance to Recurly’s reasonable satisfaction (including, without limitation, certifying such compliance in writing in a form acceptable to Recurly).
  4. Fees and Payment
  Unless otherwise set forth on the Order Form, Merchant agrees to pay the fees as set forth on the applicable Order Form and all SOWs (the "Fees") within thirty (30) days of the invoice date.
  Except as otherwise provided in this Agreement, all payment obligations are non-cancelable and nonrefundable.
  Any past-due amounts payable by Merchant hereunder will bear interest at a rate of 1.5% per month (or the maximum amount permitted by applicable law, whichever is less). Without limiting any remedy available to Recurly, if Merchant fails to pay any fees due hereunder, Recurly may suspend Merchant’s access to the Service.
  All Fees are exclusive of taxes and other fees which may be imposed on Recurly or Merchant for the provision or use of the Service. Merchant will be responsible for such taxes and other fees. Tax exempt status will be granted to Merchant upon presentation of a satisfactory certificate of exemption.
  Merchant is responsible for its own Merchant Bank Account fees in addition to the Fees set forth hereunder. Recurly may help Merchant apply for a Merchant Bank Account, or Merchant may bring an existing Merchant Bank Account, but any fees associated with such Merchant Bank Account are Merchant’s responsibility and are not included in Recurly’s fees. All fees associated with Merchant’s chosen payment gateway (with the exception of the Recurly Payment Gateway (offered to U.S. customers only)) are also separate and not included in the Fees.
  "Confidential Information" means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, "Confidential Information" will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
  Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
  6. Proprietary Rights
  The Service contains content and technology of Recurly that is protected by copyright, trademark, patent, trade secret and other laws. As between the parties, Recurly owns all intellectual property and other proprietary rights to the Service, including but not limited to the design, artwork, logos, functionality and documentation relating thereto (collectively, the "Recurly Property"). Merchant may not: (i) copy, modify, or reverse engineer any part of the Service or any Recurly Property (except to the extent such restriction is prohibited by applicable law); (ii) rent, sell, lease, distribute, provide on a service bureau basis or otherwise use the Service for the benefit of any third party; or (iii) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof. The names, logos or trademarks of any third party companies and products mentioned on the Service (including, without limitation, Recurly Partners and partner sites) may be the trademarks of their respective owners.
  Any text, images or other audiovisual information posted on the Service by a Merchant (collectively, "Merchant Content") will belong to the user that posted such Merchant Content. Merchant may use any Merchant Content posted by Merchant in any other way without restriction. Merchant may only use Merchant Content posted by others in the ways described in this Agreement.
  In order to operate the Service, Recurly needs the right to make certain uses of Merchant’s publicly posted Merchant Content (for example, Merchant may provide Recurly with Merchant Content to enable Recurly to send communications on Merchant’s behalf to Merchant’s customers regarding their subscription billing).Therefore, when Merchant posts Merchant Content on the Service, Merchant agrees that Recurly may use and make available such Merchant Content solely as reasonably necessary to provide the Service to Merchant. By posting Merchant Content to the Service, Merchant hereby represents and warrants that Merchant has the right to post that Merchant Content and to grant the foregoing rights to Recurly.
  In addition, Merchant acknowledges that Recurly may (i) internally use (but not disclose) information and data collected by Recurly regarding Merchant’s use of the Service to create Aggregated Anonymous Data (as defined below) and (ii) may freely use and make available Aggregated Anonymous Data. "Aggregated Anonymous Data" means merchant-level information and data that is in an aggregated, anonymized form and which can in no way be specifically linked to Merchant or to any of Merchant’s customers.
  Recurly reserves the right to remove any content (including, without limitation, Merchant Content) from the Service, at its sole discretion.
  Recurly may include Merchant’s name along with Merchant’s properly formatted logo, solely in accordance with Merchant’s then-existing trademark usage guidelines, to identify Merchant as a Recurly customer on its website and in presentation, sales or marketing materials which identify and/or list names of Recurly customers. For the sake of clarity, in no event will Recurly use Merchant’s name or logo without Merchant’s prior written approval in any marketing or promotional material to specifically and individually highlight Merchant as a customer of Recurly.
  Merchant may from time to time provide Recurly suggestions or comments for enhancements or improvements, new features or functionality or other feedback ("Feedback") with respect to the Service. Recurly will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Recurly will have the full, unencumbered right, without any obligation to compensate or reimburse Merchant, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
  7. Disclaimer of Warranties
  MERCHANT EXPRESSLY UNDERSTANDS AND AGREES THAT (I) MERCHANT’S USE OF THE SERVICE (INCLUDING THIRD PARTY PRODUCTS) IS AT MERCHANT’S SOLE RISK AND EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THE AGREEMENT (A) THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND (B) RECURLY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  (II) RECURLY MAKES NO WARRANTY (A) THAT THE SERVICE WILL MEET MERCHANT’S REQUIREMENTS OR EXPECTATIONS; (B) THAT MERCHANT’S ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE; (C) THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED; (D) THAT THE SERVICE OR ANY SERVER THROUGH WHICH MERCHANT ACCESSES THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR (E) WITH RESPECT TO ANY THIRD PARTY PRODUCTS.
  (III) IN USING THE SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER RECURLY’S CONTROL (SUCH AS A THIRD PARTY SERVERS) AND RECURLY MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.
  (IV) THAT ANY GOVERNMENTAL INFORMATION (INCLUDING, BUT NOT LIMITED TO, INFORMATION REGARDING TAX RATES OR THE APPLICABILITY OF CERTAIN TAXES) ARE ACCURATE, CURRENT, OR APPLICABLE TO MERCHANT OR MERCHANT’S BUSINESS, AND MERCHANT ACKNOWLEDGES AND AGREES THAT MERCHANT (AND NOT RECURLY) IS SOLELY RESPONSIBLE AND ASSUMES ALL RISK WITH RESPECT TO MERCHANT’S OWN TAX POLICIES, TAX REPORTING POSITIONS AND MAKING ALL APPLICABLE TAX PAYMENTS, AND FOR CONDUCTING MERCHANT’S OWN DUE DILIGENCE.
  AND (V) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MERCHANT FROM RECURLY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT
  Recurly will indemnify, defend and hold Merchant (and Merchant’s officers, directors, consultants and employees) harmless from and against any and all liabilities, damages or other amounts actually paid or payable to unaffiliated third parties (including but not limited to, reasonable attorneys’ fees) in connection with any third party claim (collectively, "Losses") relating to (i) Recurly’s actual breach of Section 1(e) (PCI Compliance) of this Agreement, or (ii) the Service, as provided by Recurly to Merchant under this Agreement and used within the scope of this Agreement, infringes or misappropriates any known U.S. patent or copyright of any third party (a "Claim"). In the event of any Claim, Recurly may, at its option: (a) obtain a license to permit Merchant the ability to continue using the Service; (b) modify or replace the relevant portion(s) of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time; or (c) if the options in clauses (a) or (b) are not reasonably practicable, terminate this Agreement and provide Merchant with a pro rata refund of any prepaid unused fees corresponding to the terminated portion of the applicable Term. The indemnification obligations set forth in this paragraph are Recurly’s sole and exclusive obligations and Merchant’s sole and exclusive remedies with respect to infringement or misappropriation of intellectual property rights of any kind.
  Notwithstanding the foregoing, Recurly will have no liability for any claim of any kind to the extent that it results from: (1) modifications to the Service made by a party other than Recurly or its agents; (2) the combination, operation or use of the Service with equipment, devices, data or software not provided or approved by Recurly; (3) Merchant’s use of the Service other than in accordance with this Agreement; (4) Third Party Products; or (5) Customer Data (clauses (1) through (5), "Excluded Claims"). Merchant will indemnify and hold harmless Recurly from any Losses relating to any Excluded Claims.
  The parties’ respective indemnification obligations hereunder with respect to a particular claim will be conditioned upon (x) the party seeking indemnification ("Indemnitee") giving the other party (the "Indemnitor") prompt written notice of such claim (provided that any delay in giving notice will not relieve the Indemnitor of its indemnity obligations except to the extent that it is materially prejudiced by such delay); (y) the Indemnitor having the right to assume sole control over the defense and settlement of such claim; and (z) the Indemnitee providing the Indemnitor with reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).
  9. Limitation of Liability
  EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY, OR MERCHANT’S BREACH OF THE LICENSE RESTRICTIONS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY ON ACCOUNT OF ANY CLAIM (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) FOR (I) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) ANY AMOUNTS IN EXCESS (IN THE AGGREGATE) OF THE FEES PAID (OR PAYABLE) BY MERCHANT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO MERCHANT.
  10. Term and Termination
  This Agreement will commence on the Effective Date and will continue through the initial term set forth in the Order Form ("Initial Term"), unless earlier terminated as set forth herein. Thereafter, unless otherwise set forth on the applicable Order Form, this Agreement will automatically renew for successive one-year terms (each, a "Renewal Term," and together with the Initial Term, the "Term"), unless either party gives notice of non-renewal to the other at least thirty (30) days prior to the end of the Initial Term or the then-current Renewal Term, as applicable.
  Either party may terminate this Agreement on thirty (30) days’ notice if the other party materially breaches this Agreement and does not cure such breach within such notice period. Either party may terminate this Agreement without notice (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided that if such proceedings are involuntary, they are not dismissed within one-hundred twenty (120) days); (ii) upon the other party’s making an assignment for the benefit of creditors; or (iii) upon the other party’s dissolution or ceasing to do business without a successor.
  Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the miscellaneous provisions.
  - Publicity. Each party may refer to the other party’s name and trademarks in marketing materials and website; however, neither party will not use the other party’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without first obtaining the other party’s prior written consent (which may be by email).
  - Force Majeure. Other than Merchant’s payment obligations, neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, act of God, pandemic, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
  - Modification. This Agreement may only be modified or amended in a writing signed by authorized representatives of both parties.
  - Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to the parties must be sent to the respective address set forth in the Order Form.
  - Assignment. Neither party may assign or transfer its rights or obligations under this Agreement without the other party’s prior written consent; provided that either party may assign or transfer all of its rights and obligations under this Agreement without such consent to a successor-in-interest to all or substantially all of such party’s assets, business or equity interests relating to this Agreement (whether effected by merger, acquisition, sale of assets, change of control or otherwise).
  - Subcontracting. Recurly may subcontract its obligations hereunder (provided that Recurly will at all times remain fully responsible for the performance of any subcontractor).
  - Governing Law. Venue. This Agreement and the relationship between Merchant and Recurly will be governed by the laws of the State of California without regard to its conflict of law provisions. Merchant and Recurly agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Francisco, California.
  - No Third Party Beneficiaries. The provisions of this Agreement are intended for the benefit of and are enforceable solely by the parties hereto and nothing in this Agreement will be construed as giving any other person any right, remedy or claim under or in respect of this Agreement or any provision hereof.
  - Relationship. The parties are independent contractors under this Agreement and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
  - Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Service.
  - Waiver. Any failure of Recurly to enforce or exercise a right provided in these terms is not a waiver of that right. Should any provision of these terms be found invalid or unenforceable, such provision will be limited or deleted to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
  - Asserting Claim. Merchant and Recurly both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred.
  12. Certain Definitions
  - Effective Date: The date in which the Merchant’s subscription service begins as set forth in this Agreement between Merchant and Recurly. For example, if the “effective date” is January 1, the Recurly service platform is made available to Merchant on January 1, and the service period terminates on December 31, at which time this agreement must renew for Merchant to continue having access to the Recurly service platform.
  - Manual Invoice: An invoice generated through the Recurly services with “collection method” set to “Manual.”
  - Total Payment Volume (TPV): All successful, non-voided automated transaction amounts less all successful, non-voided refunds.
  - Total Payment Volume (TPV) Allowance: The annual TPV selected by Merchant in the Order Form.
  - Transaction: A transaction run through the Recurly services for which Recurly receives a response from a third party processor (including, without limitation, credit card, PayPal, Amazon, ACH, SEPA, BACS, and BECS Transactions).