AvidXchange Payment Network Terms and Conditions, LAST UPDATED DECEMBER 10, 2020
These AvidXchange Payment Network Terms and Conditions (“APN Terms”) apply each time you request a payment to another Crowdz user through the Crowdz platform. These APN Terms may be updated by AvidXchange from time to time. Any such updates will be effective as of the most recent “Last Updated” date shown above and apply to any payments you request after that date. You are encouraged to review these APN Terms each time you make a payment request. Words in these APN Terms that are capitalized and not defined in the Agreement or by the surrounding text have the meanings given to them in Section 1.
“ACH” means the Automated Clearing House network operated by the National Automated Clearing House Association (“NACHA”) that coordinates automated money transfers from one bank account to another in the United States;
“Agreement” means the Crowdz User Agreement with AvidXchange that incorporates the most current version of these APN Terms by reference;
“Applicable Law” means United States federal, state or local law (including without limitation, statutes, regulations, judicial or administrative decisions, executive orders or rules) applicable to the parties’ respective rights and obligations under the Agreement;
“Applicable Rules” means collectively, the NACHA Rules and the Card Company Rules;
“Business Day” means any calendar day, excluding Saturdays, Sundays and United States federal government holidays;
“Card Company Rules” means the rules established by Mastercard for Mastercard branded, single transaction virtual credit cards (each, a “VCC”) which may be used by AvidXchange to make a payment to any Crowdz user;
“Change in Control” means a change in the direct or indirect possession of power to direct or cause the direction of your management or policies, whether through ownership of stock or other securities, by contract or otherwise. Ownership of more than fifty percent (50%) of your beneficial interest shall be conclusive evidence that control exists.
“Crowdz” means Agora Intelligence, Inc. d/b/a Crowdz;
“You,” “you” or “your” are references to the legal entity that has contracted with AvidXchange for the Service;
“days” means calendar days unless otherwise specified;
“include” or “including” means including without limitation;
“NACHA Rules” means the then current operating rules and guidelines promulgated by the NACHA that define the roles and responsibilities for the processing of ACH transactions;
“OFAC” means the United States Department of Treasury Office of Foreign Assets Control; and
“Payee” means a legal entity physically located in the United States that uses the Crowdz platform and to whom you have requested a payment be made through the Service; and
“Service” means the processing by AvidXchange of payments you request through the Crowdz platform to Payees only. Service does not include any services, solutions or products provided to you by Co
2. Relationship Among You, Crowdz and AvidXchange
The contractual obligations between you and AvidXchange for the Service consists of (a) the Agreement; (b) the AvidXchange Customer Compliance Form; and (c) the ACH Debit Authorization form, as required for the purpose of providing the Service to you. All terms and conditions that govern your use of the Crowdz platform and with respect to amounts payable by you with respect to your use of the Crowdz platform (including fees and charges with respect to the Service), are directly between you and Crowdz.
Crowdz will manage and facilitate any interactions between you and AvidXchange and you hereby authorize Crowdz to do so, including without limitation (i) the acceptance and execution of applicable contractual documentation and (ii) the exchange of necessary information between you and AvidXchange, for example, know your customer information, payment instructions and bank account information.
3. The Service
Subject to the terms and conditions of the Agreement, AvidXchange will process payment transactions to Payees that you request through the Crowdz platform in accordance with your instructions and information that AvidXchange receives from Crowdz. Such payments will be made by VCC, ACH or check in accordance with AvidXchange then current processes and procedures. Typically, funding for payment requests received by AvidXchange from Crowdz prior to 3:00 pm EST each Business Day will be debited from your designated bank account on the same day; and payments will be initiated the following day with respect to VCC and ACH payment transactions and by the second day with respect to check payments. You agree to provide information AvidXchange requests for compliance with Applicable Law or Applicable Rules. AvidXchange shall have no obligation to provide the Service or process any payment request if insufficient information is received or doing so would cause AvidXchange to be in violation of Applicable Law or Applicable Rules.
AvidXchange may use third parties in the performance of its obligations under the Agreement but is responsible for the performance of such third parties under the Agreement. You acknowledge that for quality control, training and record-keeping purposes, AvidXchange may monitor and/or record telephone calls and you hereby consent to such monitoring and recording. You further acknowledge that not all calls may be monitored or recorded and not all calls may be retained or capable of being retrieved.
Customer expressly agrees that AvidXchange shall not be liable for any losses incurred by Customer arising out of any delay in any wire transfer or processing of ACH debits or credits or any delay of the United States Postal Service or other mail carrier, except to the extent any such delay is caused by AvidXchange.
4. Your Obligations, Authorizations, Representations and Warranties
You represent and warrant that (i) you have full authority to authorize all payments requested through the Service; (ii) you have authorized applicable financial institution(s) to withdraw, debit or charge the necessary funds from the bank account(s) from which payments will be made; (iii) you will request that AvidXchange make a payment for you only when a sufficient collected balance is or will be available in the respective bank account at the anticipated time of withdrawal; (iv) your payment and remittance instructions are complete and accurate in all respects and in compliance with Applicable Law, including any requirements of OFAC; and (v) your instructions, requests or other communications given to AvidXchange through the Service or by Crowdz shall be regarded as legal endorsements and shall be deemed to have the same legal authority as a written authorization signed by your authorized representative. AvidXchange shall have no liability resulting from following your instructions, including payment instructions; the refusal of any Payee to accept payment through the Service (in which case you agree to accept the return of such payment funds); the failure of you or Crowdz to provide timely or accurate information to AvidXchange (including payment instructions); or a breach of your representations and warranties.
AvidXchange reserves the right to correct payment transactions that were incorrectly executed, regardless of the nature and cause of the error, and in connection with exceptions handling. You agree to use commercially reasonable efforts to assist AvidXchange with returns and exceptions handling, including the recovery of funds in the event of erroneous credit entries. In the event funds are not available at the time any payment is made by AvidXchange or any ACH debit is subsequently reversed or rejected, then you agree to pay Crowdz for any reimbursement owing to AvidXchange within two Business Days for such payment amounts and any resulting penalties or other out-of-pocket costs incurred by AvidXchange. If AvidXchange does not receive such reimbursement within two Business Days, you agree to pay Crowdz interest on the amount of such payment at the higher rate of 18% per annum and the maximum rate permitted by law until such time as AvidXchange receives the full amount of the payment and other costs incurred. You agree that AvidXchange may, in addition to all other available remedies, delay payments to ensure that AvidXchange has received good funds from you prior to initiating payments or immediately suspend all payment transactions until it receives any outstanding reimbursement, interests and costs from Crowdz.
You agree to provide such identifying information as may be reasonably necessary for AvidXchange to comply with Applicable Law and Applicable Rules, including the Bank Secrecy Act, Anti-Money Laundering regulations and for OFAC screenings, or to enable AvidXchange to respond to any subpoena, demand or request from OFAC or any other government agency, as the same may be requested from time to time. Such identifying information may include, but is not limited to, the names, dates of birth, addresses and identification numbers of your beneficial owners or that of your Affiliates or any other users of the Service under your account and the identification numbers of Payees or their Affiliates or other users. AvidXchange shall have no liability for the disclosure of such information to a government agency. In the event any such diligence reveals a violation or suspected violation of Applicable Law or Applicable Rules or results in an unacceptable risk rating, AvidXchange shall have the right to refuse to provide the Service in whole or in part and to terminate the Agreement on written notice without liability. To the extent permitted by Applicable Law, AvidXchange will notify you and/or Crowdz, of any such result.
AvidXchange may suspend or deactivate the Service as reasonably required to investigate or stop illegal, fraudulent or suspicious activities, provided that AvidXchange or Crowdz will give you notice of any such suspension or deactivation as soon as practicable if such notice is permitted by law enforcement or regulatory agencies, and reinstate the suspended Service promptly if and when the reasons for the suspension are cured.
Each party may disclose (the “Discloser”) confidential and proprietary information (“Confidential Information”) to the other party (the “Recipient”) in the performance of the Agreement. The Recipient shall hold such Confidential Information in confidence and shall not disclose it except to its employees, agents or other representatives who have a need to know such Confidential Information in connection with Recipient’s performance under the Agreement.
Recipient shall protect and safeguard the Confidential Information of the Discloser and shall not, in whole or in part, sell, lease, license, assign, transfer or disclose such Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as contemplated by the Agreement. Recipient shall take reasonable precautions, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure and unauthorized copying, reproduction or distribution of the Discloser’s Confidential Information. Recipient shall promptly notify Discloser if Recipient has a reasonable belief that Discloser’s Confidential Information has been disclosed other than as permitted by the Agreement. The parties acknowledge and agree that AvidXchange may disclose Confidential Information on a confidential basis to a third party in connection with any work that the third party is performing on behalf of AvidXchange, subject to a written agreement containing terms substantially similar to those set forth in this Section 6.
Neither party shall have any rights in the other party’s Confidential Information and shall return or destroy all such Confidential Information upon the termination or expiration of the Agreement or upon receipt of written notice from the Discloser. Notwithstanding the foregoing, the parties agree that the Recipient shall not be required to return to the Discloser or destroy those copies of Confidential Information which are required to be retained by Applicable Law or residing on Recipient’s backup, disaster recovery, or business continuity systems and that the obligations hereunder with respect to such Confidential Information shall survive until it is destroyed from such systems by the Recipient and for such additional period specified in this Section.
Recipient acknowledges that Discloser shall have the right to take all reasonable steps to protect its Confidential Information including, but not limited to, injunctive relief and any other remedies as may be available at law or in equity in the event the Recipient does not fulfill its obligations under this Section.
Confidential Information shall not include information that (a) was already in the lawful possession of the Recipient prior to receipt thereof, directly or indirectly, from the Discloser; (b) becomes available to Recipient on a non-confidential basis from a source other than Discloser that is not under an obligation to keep such information confidential; (c) is generally available to the public other than as a result of a breach of the Agreement by Recipient or its representative(s); or (d) is independently developed by or for Recipient without reference to the Confidential Information. In addition, a party shall not be considered to have breached its obligations by disclosing Confidential Information of the other party as required to satisfy any request of a competent governmental body, provided that promptly upon receiving any such request, and to the extent that it may legally do so, such party advises the other party of the request prior to making such disclosure so that the other party may object to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.
The terms and conditions of this Section shall survive termination or expiration of the Agreement for a period of three (3) years; provided, however, with respect to any information provided by the Discloser and identified as a trade secret or concerning the infrastructure or security of its computing networks, these terms and conditions shall continue until such information is no longer protected as Confidential Information by the Discloser.
You agree to defend, indemnify and hold harmless AvidXchange, its Affiliates and licensors and their respective directors, officers, employees and agents against any and all claims, damages, losses, liabilities, costs and reasonable expenses (including reasonable attorneys’ fees) arising out of a breach of your representations, warranties, authorizations or obligations under the Agreement, expressly including any fines, liability or costs of investigation in connection with any regulatory investigation arising from your breach of the Agreement (e.g., any failure to provide accurate and complete information or any transmissions or activity with respect to your account that result in a violation of Applicable Law or Applicable Rules).
8. Warranty Disclaimers
AvidXchange will perform the Service in a workmanlike manner consistent with industry standards. If you notify AvidXchange of a breach of this warranty, upon confirmation by AvidXchange, AvidXchange will use commercially reasonable efforts to correct the reported breach. The foregoing remedy and your right to terminate the Agreement and this Service for breach in accordance with Section 12 are your sole and exclusive remedies. AvidXchange and its licensors make no other representation, warranty, or guarantee as to the suitability, quality, reliability, timeliness, availability, accuracy or completeness of the Service. EXCEPT FOR THE EXPRESS WARRANTY GIVEN IN THIS SECTION, THE SERVICE IS PROVIDED STRICTLY ON AN “AS IS, AS AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Service errors, defects, failures or other non-compliance caused, in whole or in part, by (a) your failure to comply with the Agreement; (b) the acts or omissions of any person other than AvidXchange or its agents; (c) your modification of the Service or any part thereof; (d) your use of the Service or any part thereof in combination with systems or materials not furnished by AvidXchange; or (e) any other cause beyond AvidXchange’s reasonable control (e.g., computer viruses, hackers, failure of electric power, internet downtime) are excluded from AvidXchange’s warranty.
Neither party shall be liable for any delay or failure to perform (excluding, however, Customer’s obligations to pay for Services provided) due to causes beyond its reasonable control, including without limitation, acts of God; fires; explosions; floods; unavailability or instability of the internet; telecommunication failures; war; technology attacks; epidemics; acts of terrorism; riots; embargoes; quarantines; viruses; strikes; lockouts; disputes with workmen or other labor disturbances; total or partial failure of transportation, utilities, delivery facilities or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control whether or not similar to the foregoing.
9. Limitation of Liability
IN NO EVENT WILL A PARTY, ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY PUNITIVE, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING FOR EXAMPLE, LOSS OF GOODWILL, DATA, REVENUE, PROFITS, SAVINGS, USE OR ECONOMIC ADVANTAGE) ARISING OUT OF, OR RELATING TO, THE SERVICE OR THESE APN TERMS, EVEN IF A PARTY, ITS AFFILIATES OR LICENSORS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. THE CUMULATIVE LIABILITY OF AVIDXCHANGE WITH RESPECT TO THE SERVICE OR THE AGREEMENT, HOWSOEVER ARISING AND IRRESPECTIVE OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO CROWDZ FOR THE SERVICE WITHIN THE MOST RECENT SIX-MONTH PERIOD UNDER THE AGREEMENT. NO CLAIM ARISING OUT OF THE AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO THE CLAIM.
THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THE AGREEMENT SHALL SURVIVE EXPIRATION OR TERMINATION OF THE AGREEMENT, WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND FORM AN ESSENTIAL PART OF THE CONSIDERATION FOR THE PARTIES’ PERFORMANCE.
Any notice required or permitted to be given concerning a party’s obligations or rights under the Agreement shall be sent in writing by first class mail (postage prepaid with return receipt requested), nationally recognized overnight delivery service or email and shall be deemed given upon receipt. AvidXchange will use your then current contact information on record with Crowdz or AvidXchange for all notices. You agree to send notices to AvidXchange at the following address or email: AvidXchange, Inc., Attention: Legal Department, 1210 AvidXchange Lane, Charlotte, NC 28206, or email to [email protected]
Since AvidXchange is required to conduct due diligence on each customer for whom it processes payments, you may not assign the Agreement without the prior written consent of AvidXchange.
12. General and Termination
The Agreement (a) is the entire understanding and agreement between you and AvidXchange with respect to the AvidXchange Payment Network and the Service and supersedes all prior and contemporaneous representations, warranties or agreements with respect thereto; (b) may be signed and transmitted electronically and in counterparts; and each such counterpart, whether manually or electronically executed, and howsoever transmitted, shall be deemed an original and altogether shall constitute one and the same document and (c) shall be deemed made in, and governed by the laws of, the state of Delaware without regard to any conflicts of law provisions of any jurisdiction. Any claims will be resolved on an individual basis without resort to any form of class action and will not be consolidated with the claims of any other parties. Each of us hereby waives our right to a jury trial with respect to any dispute or claim of any nature arising from the Agreement. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be modified to reflect the intent of the invalid or unenforceable provision to the greatest possible extent, with all other provisions remaining in full force and effect. We acknowledge and agree that we are independent contractors and that no joint venture, partnership, franchise, employment relationship exists between us as a result of the Agreement or use or provision of the Service. If either of us fails to enforce any right or provision in the Agreement, such failure does not constitute a waiver of such right or provision unless it is waived in writing. No waiver will be deemed a continuing waiver or a waiver of any subsequent breach or default, whether of similar or different nature, unless expressly stated in writing.
If either of us breaches any material obligation under the Agreement and fails to cure it within 30 days following receipt of written notice of such breach from the other party, then the other party may terminate the Agreement without penalty on written notice. All provisions of the Agreement which by their nature may require performance after expiration or termination of the Agreement shall survive such expiration or termination, including appropriate obligations of confidentiality, indemnity, limitations and disclaimers of liability and this Section.
13. Legal and Regulatory Compliance
Each party shall comply with, and will not use or provide the Service in violation of, Applicable Law or Applicable Rules. AvidXchange has the right to refuse, suspend or terminate the Service or to terminate the Agreement at any time with or without notice to comply with Applicable Law or Applicable Rules. Each party is solely responsible for any violation of Applicable Law or Applicable Rules by its representatives, agents or contractors, which violation is deemed to be a material breach o the Agreement.
For each ACH payment, you (a) agree to be bound by all applicable NACHA Rules and assume the responsibilities of an Originator thereunder; (b) authorize AvidXchange and its Originating Depository Financial Institution (ODFI) to originate ACH entries on your behalf to Payees’ accounts; (c) agree not to originate entries that violate the laws of the United States or any state; (d) agree to comply with file limits and controls, credit limits and controls and security procedures for handling ACH entries, as may be required by AvidXchange or the bank used by AvidXchange to provide ACH services; (e) will retain evidence of authorization for ACH entries for a minimum of two years from the date of authorization; (f) understand and agree that AvidXchange will not process or originate any ACH transactions in violation of the NACHA Rules or Applicable Law, international ACH transactions or other transaction types as may be identified by AvidXchange in the future; (g) agree AvidXchange and its ODFI have the right to terminate or suspend the Agreement for any breach of the NACHA Rules, so that AvidXchange and the ODFI can comply with the NACHA Rules; (h) warrant that you have no actual knowledge of any revocation of a Receiver’s authorization or termination of the arrangement between the Receiver and the Receiving Depository Financial Institution (RDFI); and (i) grant AvidXchange and the ODFI the right to audit your compliance with the Agreement and the NACHA Rules.