AVIDXCHANGE PAYMENT NETWORK (APN) TERMS AND CONDITIONS, LAST UPDATED MARCH 14, 2023
Customer and AvidXchange, Inc. (“AvidXchange”) acknowledge that Customer has purchased the MVP Service powered by AvidXchange (the “Service”) from MRI Software LLC (“MRI”) pursuant to an order and/or agreement between Customer and MRI (the “MRI Agreement”) which agreement incorporates by reference these AvidXchange Payment Network Terms and Conditions (the “APN Terms”). Customer and AvidXchange agree that these APN Terms comprise the entire agreement and understanding between Customer and AvidXchange with respect to Customer’s use, and AvidXchange’s performance, of the Service. These APN Terms shall remain in effect between Customer and AvidXchange for so long as Customer uses, and AvidXchange provides, the Service. From time to time, AvidXchange may update these APN Terms to comply with Applicable Law, industry standards or rules or to reflect then current business practices or terms applicable to the Service. Such changes will be effective as of the most recent “Last Updated” date shown above.
1. Relationship Among Customer, MRI and AvidXchange
AvidXchange provides SaaS applications through its proprietary platform and ancillary services that enable businesses to automate certain accounts payable functions. MRI is an authorized reseller of the AvidXchange Payment Network (“APN”) Service that enables MRI’s customers to automate the approval and authorization of payments to their suppliers, vendors, and service providers (each, a “payee”). AvidXchange is solely responsible for the delivery of the Service to Customer in accordance with these APN Terms; but MRI may manage and facilitate Customer’s interactions with AvidXchange, as agreed upon between MRI and AvidXchange.
2. The Service
The Service enables Customer to deliver an electronic file of payments approved by Customer from Customer’s accounts payable system to the APN. Upon receipt by the APN, the payments contained in the payment file will be separated by payment method (i.e., ACH credit entries, credit card and paper checks) and payments will be remitted in accordance with Customer’s payees’ preferences using each payment method. Customer must provide approved payment files prior to 3:00 pm EST for any payments to be initiated and debited from Customer’s accounts by the next Business Day. Checks will be printed and mailed the following Business Day. Payments may be expedited for the additional expedite charge set forth in Customer’s agreement with the MRI. Any payment exception or expedite request must be received by 5:00 pm EST on the same day the payment transmission was initiated.
AvidXchange grants to Customer a non-exclusive, non-transferable (except to permitted successors and assigns in accordance with Section 14 below), limited right and license to use the Service, AvidXchange Technology and AvidXchange Content solely for Customer’s own internal business purposes during the term of the Agreement, subject to Customer’s compliance with these APN Terms. AvidXchange continuously modifies the Service to provide additional or improved functionality and corrections. Customer agrees to accept all modifications that AvidXchange in its sole discretion may make to the Service. Customer shall not (i) license, sublicense, sell, resell, rent, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, AvidXchange Technology or AvidXchange Content in any way; (ii) modify, or create derivative works based upon, the Service, AvidXchange Technology or AvidXchange Content; (iii) create internet links to the Service or frame or mirror any AvidXchange Content on any other server or wireless or internet-based device; (iv) reverse engineer the Service, AvidXchange Technology or AvidXchange Content; or (v) access the Service, AvidXchange Technology or AvidXchange Content in order to (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics; (c) monitor its availability, performance or functionality or for any other benchmarking or competitive purposes; or (d) copy any ideas, features, functions or graphics of the Service, AvidXchange Technology or AvidXchange Content.
Customer will have access to and use of the Service via a browser interface. Customer is responsible for any and all activities that occur through Customer’s user account(s) and shall ensure that its use of the Service complies with Applicable Law. Customer shall (i) keep all passwords and user ID’s confidential and promptly notify AvidXchange after discovery of any unauthorized use of any password or user account or any other known or suspected breach of security and (ii) not knowingly impersonate another user of the Service or provide false information to gain access to or use of the Service. AvidXchange may suspend or deactivate the Service as reasonably required to investigate or stop illegal, fraudulent or suspicious activities, provided that AvidXchange or MRI will give Customer 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 when the reasons for the suspension are cured.
Customer agrees it will not use the Service, AvidXchange Technology or AvidXchange Content to (i) send spam or otherwise duplicative or unsolicited messages in violation of Applicable Law; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service, AvidXchange Technology, AvidXchange Content or any related systems or networks.
Except for the limited license granted to Customer in this Section, AvidXchange and any third party licensors retain all right, title and interest, including all Intellectual Property Rights, relating to or embodied in the Service, AvidXchange Technology and AvidXchange Content and any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating thereto offered by Customer or any other party, including without limitation, clickstream data generated by users that provides information about the specific Service features or functions utilized and the sequence and frequency of use thereof, but contains no Customer data. These APN Terms are not a sale of, and do not convey to Customer, any rights of ownership in or related to the Service, AvidXchange Technology, AvidXchange Content or Intellectual Property Rights of AvidXchange. AvidXchange’s name, logos and the product names associated with the Service are trademarks of AvidXchange or third parties, and no right or license is granted for Customer to use them. Customer agrees that all aggregated user data available from the Service, AvidXchange Technology and AvidXchange Content that is not specific to and does not identify Customer is owned exclusively by AvidXchange. Customer further agrees that AvidXchange may use Customer data to improve the Service and to develop new product or service offerings.
To the extent that any Service or AvidXchange Technology enables Customer to access any third-party website, database, network, application, product or service (each, a “Third-Party Service”), such access is provided by AvidXchange solely as a convenience. No Third-Party Service is a Service or product provided by AvidXchange hereunder; and AvidXchange does not make any representations or warranties, and hereby disclaims all liability for damages of any kind, direct and indirect, with respect to any such Third-Party Service. Customer’s ability to use such Third-Party Service may be subject to additional terms and conditions required by the Third-Party Service provider. Customer acknowledges and agrees that AvidXchange shall have no obligation or liability with respect to the quality, performance or non-performance of the Third-Party Service, or Customer’s use of, or inability to use, such Third-Party Service. Customer hereby irrevocably releases AvidXchange and its Affiliates, successors and assigns from any and all claims of any kind that Customer, its Affiliates or their respective clients may have arising from, or related to, any such Third-Party Service.
3. Fees, Payment Terms and Incentives
All fees and charges for the Service and applicable payment terms are set forth in the Agreement. MRI is solely responsible for billing and collecting from Customer all fees and charges for the Service and any related taxes.
4. Implementation of the Service
Customer agrees MRI may, if and as agreed upon separately between MRI and AvidXchange, facilitate the performance of certain tasks provided by AvidXchange to activate the Service, as may be applicable, such as the following: (a) Project Management: assign resources, make status calls, coordinate with Customer’s project lead; (b) Data Migration: manage one-time import of certain information in AvidXchange’s specified format, e.g., accounting codes, bank account, vendor, user, property, location; (c) Workflow Configuration: manage the identification of custom workflows, roles, associations and permissions to Customer’s written requirements; (d) Accounting System Integration: create integration map(s) that will produce invoice and/or payment data, as applicable, in a format compatible with available web services and the native import or export of utilities provided by Customer’s accounting system; (e) Sync Configuration: create integration maps to accept data from Customer’s accounting system in AvidXchange’s native formats; and/or (f) Training: train Customer’s designated users on the Service. Customer agrees to cooperate as necessary to fully implement the Service, including coordination with all payees and any other parties.
5. Customer’s Obligations
Customer, at its sole expense, agrees to provide and maintain all Customer Systems and is responsible for upgrading and configuring Customer Systems to be and remain compatible with the Service and AvidXchange Technology. Customer is also responsible for (a) ensuring that all invoice approval and payment authorization rights are correctly configured and updated as needed with respect to the Service and (b) providing AvidXchange with correct and complete information necessary for AvidXchange to set up the Service to enable Customer’s use, including information required to comply with Applicable Law and AvidXchange policies and promptly informing AvidXchange of any subsequent changes to such information.
AvidXchange shall not be liable under these APN Terms with respect to Customer Systems and Materials, including the failure by Customer to timely provide Customer Systems and Materials. Customer owns, or has all necessary legal rights to use, Customer Systems and Materials and shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and Intellectual Property Rights to use, and the provision and maintenance of, all Customer Systems and Materials in connection with the Service. The Service is designed to facilitate the processing and transmission of business-to-business information. The parties acknowledge that other than the names and contact information for Customer’s and its payees’ personnel, information required to process payments to Customer’s payees or beneficial owner information required for MRI or AvidXchange to conduct OFAC screenings (described below in Section 6) or otherwise comply with Applicable Law, no personal or consumer information is required by AvidXchange to provide the Service. To the extent that personal or consumer information is included within Customer Materials, Customer, and not AvidXchange, shall be solely responsible for such information and compliance with Applicable Law relating thereto, including any notices or remedies that may be required to be provided to any party, and Customer shall indemnify and hold AvidXchange harmless against any liability that may arise in connection with such information. Notwithstanding the foregoing, AvidXchange remains responsible for compliance with the confidentiality obligations in Section 8 below.
Customer represents and warrants that Customer does not operate as any of the following types of business and that the Services will not be used in connection with any of the following types of business: (i) gambling (e.g., casinos, internet sites); (ii) adult (e.g., pornography or other illicit adult entertainment products or services); (iii) marijuana related (e.g., medical, recreational, or other use); (iv) cryptocurrency or bitcoin related (e.g., cryptocurrency vending or automatic teller machines); or (v) any other business that AvidXchange identifies to Customer as a prohibited industry on written notice.
6. Customer’s Authorizations
Customer authorizes AvidXchange and MRI (i) to use and disclose Customer Materials and other information of Customer to provide the Service; (ii) to conduct OFAC screenings (as more particularly described in the paragraph immediately below) prior to and during Customer’s use of the Service; (iii) as may be applicable, to act on behalf of Customer to facilitate electronic invoice receipt when available from Customer-selected, electronic submission-ready payees, including the facilitation of email and data only submissions; (iv) to enroll Customer’s payees in the AvidXchange supplier network; and (v) to use and provide invoice information and payment status to Customer’s payees, including with respect to Invoice Accelerator and the supplier portal.
Customer shall give AvidXchange and MRI, on behalf of AvidXchange, such identifying information as may be reasonably necessary for AvidXchange to comply with Applicable Law, including to conduct OFAC screenings, to comply with the Bank Secrecy Act or Anti-Money Laundering regulations or 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 the beneficial owners of Customer, its Affiliates or any other users of the Service under Customer’s account and the identification numbers of the parties being paid by Customer. MRI and AvidXchange shall have no liability for the disclosure of such information to a government agency. In the event any such screening reveals, or AvidXchange becomes aware of, a violation or suspected violation of Applicable Law, or if the continuation of Service to Customer would cause AvidXchange to be out of compliance with Applicable Law, then AvidXchange or MRI on behalf of AvidXchange, shall have the right to immediately suspend the Service and/or terminate the Agreement and these APN Terms without penalty on written notice to Customer.
Customer acknowledges that for quality control, training and record-keeping purposes, AvidXchange may monitor and/or record telephone calls and Customer hereby consents to such monitoring and recording. Customer further acknowledges that not all calls may be monitored or recorded and not all calls may be retained or capable of being retrieved.
Customer agrees as follows with respect to the Service:
- Customer will provide AvidXchange with then current contact information for payees; and, as part of the Service, AvidXchange may contact such payees to enroll them in the AvidXchange supplier network. Customer acknowledges that its payees may also supply goods and services to other AvidXchange customers and may therefore already be enrolled in the AvidXchange supplier network in which case AvidXchange will make payments to such payees in accordance with their already established payment preferences. Once any given payee is enrolled in the AvidXchange supplier network, such payee remains enrolled until it decides to terminate its enrollment or AvidXchange terminates its enrollment.
- Customer authorizes AvidXchange to (i) act as Customer’s agent for the purpose of making payments to payees authorized by Customer by VCC, ACH, paper check or other commercially accepted payment method; (ii) debit the bank account(s) designated by Customer in the amount of funds required to make payments authorized by Customer and credit such funds in custodial account(s) established for the benefit of customers; and (iii) with respect to any ACH payment, to create an ACH debit from the bank account from which the payment transaction will Customer agrees to provide a reasonable and customary ACH authorization that has been executed by an authorized representative for each of the designated bank accounts. Customer understands and acknowledges that MRI does not own or otherwise have actual or constructive control of Customer funds or accounts.
- Customer represents and warrants that (i) Customer has full authority to authorize all payments requested through the Service; (ii) Customer has authorized applicable financial institution(s) to withdraw, debit or charge the necessary funds from the bank account(s) from which payments will be made via the Service; (iii) Customer will request that AvidXchange make a payment only when a sufficient collected balance is or will be available in the respective bank account at the anticipated time of withdrawal; (iv) Customer’s payment and remittance instructions are complete and accurate in all respects and in compliance with Applicable Law, including any requirements of OFAC; and (v) Customer’s instructions, requests or other communications given to AvidXchange through the Service shall be regarded as legal endorsements and shall be deemed to have the same legal authority as a written authorization signed by an authorized representative. AvidXchange shall have no liability resulting from following Customer’s instructions, including payment instructions; the refusal of any payee to accept payment through the Service (in which case Customer agrees to accept the return of such payment funds); the failure of Customer to provide timely or accurate information to AvidXchange (including invoices and payment instructions); or a breach by Customer of its representations and warranties. If AvidXchange is unable to make any payment requested by Customer through the Service to any payee for any reason, Customer agrees to accept the return of the corresponding payment funds. If Customer does not accept the return of such funds, Customer acknowledges that AvidXchange is required by Applicable Law to escheat those funds within the applicable time periods to Customer’s state of residency, which will be determined by the last known address provided by Customer to AvidXchange, and Customer agrees that AvidXchange shall have no liability arising from its compliance with such escheatment.
- Customer acknowledges that the Service provided by AvidXchange is for the purpose of facilitating business to business (not consumer) payments in the United States and that AvidXchange does not provide multi-currency functionality. Customer agrees to defend, indemnify, and hold AvidXchange harmless from and against all liability, costs, expenses, losses, fines, or damages incurred by AvidXchange arising from any payments that Customer authorizes outside of the United States or to consumers through its use of the Service. If the Service enables Customer to access a cross- border payments service provided by a third party, Customer acknowledges that such service is a Third-Party Service subject to such terms and conditions as such third-party provider may require and is not a Service performed by AvidXchange hereunder.
- If Customer requests AvidXchange to stop any payment already approved by Customer, AvidXchange will use reasonable efforts to do so, but cannot guarantee that such payment can be Customer acknowledges and agrees that (a) each stop payment requested by Customer must have been received by AvidXchange in time to allow AvidXchange and the financial institution or card provider an opportunity to act on it; (b) Customer will be responsible for the AvidXchange stop payment authorization fee plus any charges incurred by AvidXchange from the financial institution or card provider in connection with the stop payment request; and (c) if AvidXchange initiates the stop payment and returns Customer’s funds and subsequently the Customer’s payee is nonetheless able to negotiate any check or force post any virtual credit card for which funds were withdrawn, thereby creating a liability for AvidXchange, then Customer agrees to reimburse AvidXchange in the amount of such payment and any service fees or other charges payable to any check cashing company or other holder in due course. Customer will reimburse AvidXchange within five (5) Business Days. If such reimbursement is not received in five (5) Business Days, then Customer agrees that AvidXchange may offset any amounts payable to Customer under any agreements by such reimbursable amounts, charge interest at the rate of eighteen percent (18%) per annum or the maximum rate permitted by law on any unpaid reimbursable amount and suspend services until Customer reimburses AvidXchange in full.
- 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. Customer agrees 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. When Customer sends each approved payment file to AvidXchange, Customer shall ensure that funds for all payments it authorizes are available from the authorized bank accounts. 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 Customer agrees to reimburse AvidXchange within two Business Days for such payment amounts and any resulting penalties or other out-of- pocket costs incurred by AvidXchange. If Customer fails to reimburse AvidXchange within two Business Days, Customer shall also pay AvidXchange interest on the amount of such payment made by AvidXchange at the rate of 18% per annum or the maximum rate permitted by law until such time as AvidXchange receives from Customer the full amount of the payment and other costs incurred. Customer agrees that AvidXchange may, in addition to all other available remedies, delay payments to ensure that AvidXchange has received good funds from the Customer prior to initiating payments or immediately suspend all payment transactions until it receives reimbursement from Customer.
7. Third Party Interactions
AvidXchange shall have the right to use third parties in the performance of its obligations under these APN Terms at no additional expense to Customer, provided that AvidXchange shall be liable for the acts or omissions of such third parties in the performance of the Service. Customer agrees that no employees of AvidXchange or its contractors shall be required to individually sign any agreement with Customer in order to provide the Service, including access, security, facilities or confidentiality agreements. Notwithstanding the foregoing, these APN Terms are for the sole benefit of AvidXchange and Customer and their respective successors and permitted assigns; and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
Each party (the “Discloser”) may disclose confidential and proprietary information (“Confidential Information”) to the other party (the “Recipient”) in the performance of these APN Terms. Customer’s Confidential Information shall include, without limitation, all information relating to the trade secrets and business affairs of Customer or its Affiliates, including financial information, information about computer systems and Confidential Information contained in the Customer Materials. The Confidential Information of AvidXchange shall include information relating to the Service, AvidXchange Technology, AvidXchange Content and other information relating to the trade secrets or business affairs of AvidXchange, its Affiliates, licensors, suppliers and agents.
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 or copy, reproduce or distribute the Confidential Information except as contemplated by these APN Terms. Recipient may disclose Confidential Information to its employees, officers, directors, legal and financial advisors or other representatives (collectively, “Representatives”) who have a need to know such Confidential Information in connection with Recipient’s performance under the Agreement. A breach of this Section by a Recipient’s Representatives shall be deemed to be a breach by Recipient. 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 these APN Terms. 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 and conditions substantially similar to those set forth in this Section 8.
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 these APN Terms 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 of time specified below 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 these APN Terms 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 these APN Terms for a period of three (3) years; provided, however, with respect to (i) 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 and (ii) information constituting personally identifiable information as defined by Applicable Law, these terms and conditions shall continue for so long as required by Applicable Law.
Customer shall defend, indemnify and hold harmless AvidXchange, its Affiliates and licensors and their respective directors, officers, employees and agents against any and all third party claims, damages, losses, liabilities, costs and reasonable expenses (including reasonable attorneys’ fees) arising out of (i) any claim alleging that use of the Customer Systems and Materials in connection with the Service infringes the rights of, or has caused harm to, a third party or (ii) a breach of Customer’s representations, warranties or obligations under these APN Terms.
AvidXchange shall defend, indemnify and hold harmless Customer, its Affiliates and their respective directors, officers, employees and agents against any and all third party claims, damages, losses, liabilities, costs and reasonable expenses (including reasonable attorneys’ fees) arising out of any claim made by any third party that the Service as supplied by AvidXchange infringes a United States copyright or a United States patent. If such a claim is made or is likely to be made, AvidXchange will, at its own expense and sole discretion, exercise one or more of the following remedies: (a) obtain for Customer the right to continue to use the Service consistent with these APN Terms; (b) modify the Service so it is non- infringing and in compliance with these APN Terms; or (c) terminate the infringing portion of the Service without liability for such termination other than the ongoing indemnity obligation hereunder. AvidXchange will have no indemnity obligation or other liability hereunder arising from (i) Customer’s negligence, breach of the these APN Terms or alteration of the Service as provided by AvidXchange; (ii) the Customer Systems and Materials or information, designs, specifications, directions, instructions, software, data or materials not furnished by AvidXchange; or (iii) the combination of the Service with Customer Systems and Materials or hardware, software, materials, products or services not provided by AvidXchange. The foregoing states the entire obligation of AvidXchange and its licensors, and the exclusive remedy of Customer, with respect to infringement of proprietary rights.
A party claiming indemnification under this Section (the “Indemnified Party”) shall give the other party prompt written notice of such claim for indemnification, reasonable assistance in the defense of the claim and exclusive authority to defend, compromise or settle the claim, so long as no such settlement or compromise places any obligations on, or waives any rights of, the Indemnified Party without its prior written consent. Neither party shall have any obligation to indemnify the other party for the other party’s acts or omissions.
10. Warranty and Disclaimer
AvidXchange warrants to Customer that the Service will conform in all material respects with these APN Terms and any product documentation published by AvidXchange. If Customer notifies AvidXchange of a breach of warranty, upon confirmation by AvidXchange, AvidXchange will use commercially reasonable efforts to correct the defect, which may include providing a work-around, patch or replacement technology of functional equivalence. Customer agrees to provide relevant information and to use reasonable efforts to assist AvidXchange in diagnosing, replicating and correcting defects or other issues concerning the Service. The foregoing remedy is sole and exclusive for any breach of warranty claim. 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 or any content. EXCEPT FOR THE EXPRESS WARRANTY GIVEN IN THIS SECTION, THE SERVICES, THE AVIDXCHANGE TECHNOLOGY AND ALL CONTENT AND MATERIALS ARE PROVIDED TO CUSTOMER 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) Customer’s failure to comply with these APN Terms; (b) the acts or omissions of any person other than AvidXchange or its agents; (c) Customer’s modification of the Service or any part thereof; (d) Customer’s 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.
11. Internet and Other Delays and Failures
Neither party shall be liable for any delay or failure to perform (excluding, however, Customer’s obligations to pay amounts due and owing in connection with the Service) 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.
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.
12. Limitation of Liability
IN NO EVENT SHALL EITHER 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.
EXCEPT FOR FRAUD OR WILLFUL MISCONDUCT, THE CUMULATIVE LIABILITY OF AVIDXCHANGE UNDER THESE APN TERMS IN CONNECTION WITH THE SERVICE, 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 MRI 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 these APN Terms 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 shall use Customer’s then current contact information on record with MRI or AvidXchange for all notices. Customer shall 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]
Neither party may assign these APN Terms (by operation of law or otherwise) without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, AvidXchange may assign these APN Terms on written notice to, but without the prior written consent of, Customer (i) to an Affiliate; (ii) to any purchaser of all or substantially all of its assets or equity interests; or (iii) to any lender where such assignment serves solely as collateral for security purposes. AvidXchange’s approval of any assignment by Customer is subject to the intended assignee providing information requested by AvidXchange to enable AvidXchange to comply with Applicable Law and execution of a written assignment agreement. In the event that Customer assigns the Agreement or these APN Terms without the prior written consent of AvidXchange, AvidXchange reserves the right to suspend or terminate the Service and these APN Terms. All of the terms of these APN Terms shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns.
15. General; Breach
These APN Terms 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. The parties agree that 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 party hereby waives its right to a jury trial with respect to any dispute or claim of any nature arising from these APN Terms. If any provision of these APN Terms is held by a court of competent jurisdiction to be invalid or unenforceable, the parties agree to amend these APN Terms 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. The parties are independent contractors and no joint venture, partnership, franchise, employment or agency relationship exists between Customer and AvidXchange as a result of these APN Terms or Customer’s use of the Service. The failure of a party to enforce any right or provision in these APN Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing by such party. No waiver shall be deemed a continuing waiver or waiver in respect of any subsequent breach or default, whether of similar or different nature, unless expressly stated in writing. The Agreement, these APN Terms and any Customer approvals or authorizations that may be required in connection with the Service may be signed and transmitted electronically and in counterparts; and each such counterpart, whether executed manually or with an electronic signature, and howsoever transmitted, shall be deemed an original and altogether shall constitute one and the same document.
If Customer or AvidXchange breaches any material obligation under these APN Terms and fails to cure such breach within 30 days following its receipt of written notice of such breach from the other party, then the other party may terminate these APN Terms and the Service without penalty and pursue any other available remedies. All provisions of these APN Terms which by their nature may require performance after expiration or termination of the Agreement shall survive such expiration or termination, including appropriate provisions of Section 2 (The Service), Section 3 (Customer’s Obligations), Section 6 (Customer Authorizations), Section 8 (Confidentiality), Section 9 (Indemnification), Section 12 (Limitation of Liability), Section 15 (General) and Section 17 (Definitions).
16. Legal and Regulatory Compliance
Each party shall comply with, and will not use or provide the Service in violation of, Applicable Law.
For each ACH payment, Customer (a) agrees to be bound by all applicable NACHA Rules and assume the responsibilities of an Originator thereunder; (b) authorizes AvidXchange and its Originating Depository Financial Institution (ODFI) to originate ACH entries on behalf of Customer to payees’ accounts; (c) agrees not to originate entries that violate the laws of the United States or any state; (d) agrees 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) retain evidence of authorization for ACH entries for a minimum of two years from the date of authorization; (f) understands and agrees 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) agrees AvidXchange and its ODFI have the right to terminate or suspend these APN Terms for any breach of the NACHA Rules, so that AvidXchange and the ODFI can comply with the NACHA Rules; (h) warrants that it has 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) grants AvidXchange and the ODFI the right to audit Customer’s compliance with these APN Terms and the NACHA Rules.
Each party shall be solely responsible for any violation of Applicable Law or of the NACHA Rules by it or its representatives, agents or contractors. Violation of Applicable Law or the NACHA Rules is deemed to be a material breach of these APN Terms.
Capitalized terms used in these APN Terms shall have the following meanings:
“ACH” means the Automated Clearing House network operated by NACHA that coordinates automated money transfers from one bank account to another in the United States.
“Affiliate” means any party that directly or indirectly controls, is controlled by, or is under common control with, either of the parties to the Agreement. For this purpose, “control” means the direct or indirect possession of power to direct or cause the direction of the management or policies of a party, whether through ownership of stock or other securities, by contract or otherwise. Ownership of more than fifty percent (50%) of the beneficial interest of an entity shall be conclusive evidence that control exists;
“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;
“AvidXchange Content” means the audio, visual and/or electronic information, data, documents or materials made available by AvidXchange to Customer in the course of using the Service;
“AvidXchange Technology” means all of AvidXchange’s proprietary and/or licensed technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, documentation and other tangible or intangible technical materials or information;
“Business Day” means any calendar day, excluding Saturdays, Sundays and United States federal government holidays;
“Customer” means the legal entity using the Service and identified in the MRI Agreement and/or information submitted by Customer to AvidXchange for legal compliance purposes, as may be subsequently updated by Customer from time to time on notice to AvidXchange;
“Customer Materials” means the electronic information, data, documents or materials provided by Customer in the course of using the Service;
“Customer Systems” means all necessary systems, facilities and resources of any kind required to be provided by Customer to effectively access and use the Service, including, as applicable, Customer or third-party communication lines, databases, software, hardware, firewalls, internet connections, routing and network addresses and configurations and key contacts for problem escalation;
“Customer Systems and Materials” means Customer Systems together with Customer Materials; “day” means a calendar day unless otherwise specified;
“Go-live Date” means the date that all implementation and set-up tasks for the Service have been completed and AvidXchange makes the Service available for Customer’s use.
“include” or “including” means including without limitation;
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, trade secrets and all other intellectual property rights, derivatives thereof and forms of protection of a similar nature;
“Invoice Accelerator” means payment advances on eligible invoices to qualifying payees;
“NACHA Rules” means the then current operating rules and guidelines promulgated by the National Automated Clearing House Association (NACHA) that define the roles and responsibilities for the processing of ACH transactions; and
“OFAC” means the United States Department of Treasury Office of Foreign Assets Control.