Services
Avalon Solutions Group ("ASG") will provide the Payably™ Services selected by Merchant, as further described at https://getpayably.com/pricing, by ASG or an authorized ASG Reseller to, and accepted by, Merchant, and in any Change Order thereto. ASG’s provision of the Services is subject to changes in laws or other governmental regulations affecting the Services and rules and regulations of credit cardholder, issuers, account providers, as well as payment card and other payment associations.

It is Merchant’s responsibility to establish a relationship with account providers and financial institutions; to establish, host and maintain Merchant’s website and Internet connection; and to conduct all other commercial activities except for the Services.


Fees and Payment
Merchant will purchase the Services from ASG, or from an authorized ASG Reseller, for the amounts (the "Fees") set forth within the applicable Services and Fees Schedule described at https://getpayably.com/pricing.

ASG, or ASG's authorized Reseller, either of which may be the Billing Agent hereunder, is hereby authorized to withdraw from Merchant’s specified depository account on the Merchant’s monthly anniversary date of each month any and all amounts owing under the Services and Fees Schedule. This Agreement is the Merchant’s authorization to the Billing Agent to request and receive payment of invoiced amounts from the account by drafts. Merchant agrees to execute any other documents or agreements that the depository institution requires to authorize payment by drafts from the account. This authority is to remain in full force and effect until the Billing Agent has received written notification from Merchant of its request for termination of such authority in such time as to afford the Billing Agent and Merchant's depository institution a commercially reasonable opportunity to acknowledge and respond to the request. Merchant will maintain on deposit in the depository account enough funds to pay the Billing Agent's drafts.

Fees may be revised at the Billing Agent's discretion upon no less than thirty (30) days written notice to Merchant from the Billing Agent, and shall take effect upon the first day of the next renewal term. Any such revised Fees will be considered as an amendment to the Fees and Services Schedule. If the Billing Agent does not provide notice of revised Fees, the then-current Fees shall continue to apply for the subsequent annual term. Except for any taxes based on the Billing Agent's net income, Merchant is responsible for and agrees to pay all taxes, fees, charges, and assessments levied by any governmental authority with respect to its purchase of the Services.


Term and Termination
The term of this Agreement will commence on the Effective Date, which shall be the date of acceptance by Merchant of these Terms and Conditions and the Services and Fees Schedule, and, unless terminated earlier in accordance with this paragraph, will continue for a period of one (1) month. This Agreement will renew thereafter automatically on the same terms and conditions, subject to the Billing agent's right to revise the Services and Fees Schedule on thirty (30) days prior written notice, for additional successive periods of one (1) month.

Notwithstanding anything to the contrary herein, a party will be in default of this Agreement if it fails to perform any of its material duties or obligations under this Agreement and does not cure such default within ten (10) days after written notice is given to it by the non-defaulting party. Any uncured default is grounds for immediate termination by the non-defaulting party. Upon termination all remaining fees will become immediately payable. All rights and obligations hereunder that have accrued before expiration or termination of this Agreement or are of a continuing nature will survive any expiration or termination of this Agreement for any reason. The Billing Agent will consider accounts terminated only after receipt of an ASG CANCELLATION FORM, signed by the Merchant. Merchant shall, if desired, request from the Billing Agent such CANCELLATION FORM, which the Billing Agent shall provide to Merchant within one (1) business day.


Proprietary Rights and Information
ASG owns or has under license all proprietary rights, including, but not limited to, copyrights, patents, trademarks, trade dress, and trade secrets relating to the Services, and this Agreement does not transfer any interest in any of those rights to Merchant.

The Payably™ Services are provided to and may be used only by the Merchant, and may not be transferred, assigned, sublet, shared or otherwise made available for use by any party other than the Merchant.

Merchant shall not, and shall not authorize any third party to directly or indirectly reverse engineer, disassemble, decompile, translate, alter, duplicate, make copies of or create derivative works from the Services or any part of them, or otherwise attempt to derive the source code of the Services, whether by use of computer software or otherwise, including but not limited to the “look and feel” of the Services.

ASG has implemented and will maintain security systems for transmitting transactional information that are understood in the industry to provide adequate security for such transmissions over the Internet. ASG does not guarantee the security of the Services or such information, and ASG will not be responsible in the event of any infiltration of its security systems, provided that ASG has used commercially reasonable efforts to prevent such infiltration.

Merchant acknowledges that the methods, techniques, programs, devices, operations, pricing, fees, and the terms of this Agreement (“Confidential Information”) constitute valuable assets of, and are proprietary to, ASG. Accordingly, Merchant agrees not to disclose (whether directly or indirectly) or use any Confidential Information except as required to carry out its duties or receive its contractual benefits under this Agreement or as required by law. Merchant agrees to establish and maintain procedures reasonably designed to assure the security of all Confidential Information. Merchant acknowledges that ASG, through its agents, auditors and examiners, reserves the right to conduct or review the results of audits, security reviews or tests, or other similar evaluations, in order to confirm that appropriate confidentiality and security measures are maintained relative to the Confidential Information. Upon the expiration and/or termination of this Agreement, Merchant shall promptly return to ASG all materials that contain Confidential Information, or certify in writing that all such information has been destroyed. ASG may use or share any information provided by Merchant and/or relevant to the Services received by Merchant, including Merchant’s transaction information: (a) in response to subpoenas, court orders or other legal processes; (b) in response to requests from law enforcement agencies or government entities; (c) to comply with applicable laws or regulations; (d) to resolve disputes and/or (e) as necessary to provide the Services contemplated herein. This confidentiality provision shall survive termination of this Agreement.


Merchant’s Warranties and Responsibilities
Merchant represents and warrants that it has the right to enter into this Agreement and entering into it will not result in a breach of any other agreement to which Merchant is a party. Merchant further represents and warrants that it will abide by all applicable rules and regulations of its depository account provider and of all credit cardholder associations. Merchant agrees that it will not use, export or re-export the Services in violation of any laws or regulations of any applicable jurisdiction. Merchant shall promptly report to ASG any suspected defects, unauthorized access, use or reverse engineering relating to the Services and shall promptly inform ASG of any complaints received by Merchant regarding the Services. ASG shall use commercially reasonable efforts to promptly remedy any non-conformity of the Services to their published specifications. In the event that ASG is unable to remedy any material non- conformity, Merchant may, at its option and as its sole remedy, give written notice to ASG and thereby terminate the current term.

Merchant shall be solely responsible for any and all actions and/or inactions of Merchant and/or any third parties used by Merchant in connection with the Services received hereunder, including but not limited to, any software providers, equipment providers, merchant account providers, financial institutions, third party processors, data transmission or storage facilities, customers or prospective customers, or any payment card or payment association and Merchant hereby expressly assumes all such liability related to any such parties.


Independent Contractors
ASG and Merchant are independent contractors, and nothing herein shall be construed as creating an employment, agency, franchise, joint venture or partnership relationship between them. Neither party shall have any right, power or authority to enter any agreement for or on behalf of, or incur any obligation or liability, or to otherwise bind, the other party.


Disclaimer of Warranties
ALL GOODS AND SERVICES PROVIDED BY ASG UNDER THIS AGREEMENT ARE PROVIDED AS IS AND AS AVAILABLE. BILLING AGENT MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING ANY GOODS OR SERVICES, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, CONDUCT, OR INDUSTRY PRACTICE. EXCEPT AS EXPRESSLY INDICATED HEREIN, NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, ANY STATEMENT REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF ANY GOODS OR SERVICES, WHETHER MADE BY ASG’S OR AUTHORIZED RESELLER'S EMPLOYEES, BILLING AGENTS OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY BY ASG OR AUTHORIZED RESELLER FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF ASG OR AUTHORIZED RESELLER. Merchant acknowledges that ASG or its authorized Reseller has not represented or warranted that the Services will be uninterrupted, error free, or without delay or some inaccuracies. Except for the obligation to pay, neither party will be liable to the other for a delay in the performance of any obligation under this Agreement that is caused by any cause beyond the control of the party whose performance is delayed.


Limitations of Liability
NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR EXEMPLARY, SPECIAL, INDIRECT, REMOTE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO THE USE, OPERATION, OR SUPPORT OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY, OR DAMAGES CAUSED BY HACKERS, CODE DEVELOPED WITH MALICIOUS INTENT, INTERRUPTED COMMUNICATIONS, LOST BUSINESS, LOST DATA, OR LOST PROFITS, EVEN IF THAT PARTY HAS BEEN ADVISED OF, OR KNOWS OR SHOULD KNOW OF, THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ASG’S OR RESELLER'S AGGREGATE LIABILITY FOR DAMAGES FOR ANY CLAIM RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, STRICT LIABILITY, NEGLIGENCE OR TORT, EXCEED THE TOTAL FEES AND CHARGES PAID BY MERCHANT FOR THE APPLICABLE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING ANY SUCH CLAIM.


Indemnification
Subject to the limitations of liability provided in this Agreement, ASG shall indemnify and hold Merchant harmless from and against any and all liability, claims, damages, costs, and expenses, including reasonable attorney’s fees, arising out of any and all third-party suits or proceedings based upon any claim that the Services infringe any proprietary right of a third party. ASG, at its option, may defend or settle any such suit or proceeding. Merchant shall indemnify, defend and hold ASG, its officers, directors, employees, agents, affiliates, successors and assigns harmless from and against any and all liability, claims, damages, losses, costs, and expenses, including reasonable attorney’s fees, arising out of or relating to (i) any breach by Merchant of this Agreement, (ii) the sale or use of any products or services purchased by Merchant’s customers, or (iii) claims brought or damages suffered by any Merchant account provider, customer or prospective customer relating to Merchant’s or its agents’ operation of the Services. The indemnifying party’s obligations under this paragraph are conditioned upon its being given (i) prompt written notice by the indemnified party of each such claim, suit or proceeding and (ii) the right to control and direct the investigation, defense, and settlement of each such claim, suit or proceeding.

If ASG cannot modify the Services to avoid the alleged infringement or obtain a license from the third party to use or provide the Services on terms which ASG deems commercially reasonable, then ASG may terminate this Agreement as to the allegedly infringing Services and the parties shall equitably adjust the applicable Fees hereunder to reflect such termination.


Notices
Any notices required or permitted by this Agreement shall be sent to the addresses on the cover page by courier or registered or certified mail with return receipt requested or by confirmed electronic mail transmission. Notices shall be deemed given upon personal delivery to the addressee, or three days after the date of mailing if sent by registered or certified mail or within one (1) business day of electronic mail transmission. Either party may change its address for purposes of this Agreement by notifying the other party in accordance with the terms of this paragraph.


Name and Logo
Merchant agrees that the Billing agent may include Merchant’s name and/or logo on a list of the Billing Agent's customers, which may be made public by the Billing Agent, and on the Billing agent's website and promotional materials.


Choice of Law and Venue
This Agreement shall be construed in accordance with the laws of the State of Maryland, without regard to its conflict of laws provisions. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the state and federal courts located in Baltimore, Maryland, for any action, suit or proceeding arising out of or relating to this Agreement.


Miscellaneous
Except as described herein, this Agreement may not be modified except in a subsequent writing signed by both parties. All captions and titles in this Agreement are for convenience of reference only and are without legal significance or effect. Without the express, prior written consent of ASG, Merchant may not assign its rights or delegate its duties under this Agreement, and any such assignment or delegation shall be deemed void and of no effect. ASG may assign its rights and obligations under this Agreement to any party at any time. ASG shall promptly notify Merchant of any such assignment. The failure by either party at any time or for any period of time to enforce any provision of this Agreement shall not be construed as a waiver of that provision and shall not affect that party’s right to enforce that or any other provision at a later date. This Agreement may be executed in two or more counterparts, all of which shall constitute a single Agreement. Execution of this Agreement may take place via facsimile and/or electronically and both parties agree that any facsimile, electronic mail or other electronic copy of this Agreement evidencing the execution hereof by both parties shall be deemed an original. The fees, terms and conditions stated in this Agreement shall apply to all purchases of the Services by Merchant from ASG or an ASG Authorized Reseller, irrespective of any provisions in Merchant’s purchase orders or any other business forms or correspondence. This Agreement constitutes the entire agreement between the parties, and supersedes any prior written or oral agreement or understanding, with respect to the subject matter hereof.