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Recurly Terms of Service

By signing an order form (“Order Form”) entered into between the entity specified on such Order Form (“Merchant”) and Recurly, Inc. (“Recurly”) which references these Terms of Service (together with any applicable Order Form(s), the “Agreement”), or by clicking a box on the Recurly website indicating acceptance of these Terms of Service, or by otherwise using or accessing the Recurly Service (defined below), Recurly and Merchant each signifies that it has read, understands, and agrees to be bound by the terms and conditions hereof. Recurly and Merchant may be referred to individually as a “Party” and collectively as the “Parties.” For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to these Terms of Service through their undersigned authorized representatives. The persons signing or accepting this Agreement on behalf of a Party each represents that they have the authority to bind such Party to this Agreement.

I. Recurly Service

  1. Subject to the terms described herein, Merchant is hereby granted a nonexclusive right during the Term (as defined below) to use Recurly’s online products and/or services, as well as any add-on services and professional services (together, the “Service” or “Services”), each as set forth on the attached Order Form and any other Order Form subsequently executed by the Parties.
  2. Recurly will provide the Service in accordance with the Service Level Agreement available at https://recurly.com/legal/sla/.
  3. 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.
  4. Recurly may make changes to the Service in order to (i) update, maintain, or improve the delivery, performance, market competitiveness, or cost efficiency of the Service, or (ii) to comply with applicable law. Recurly shall provide Merchant with at least sixty (60) days advance written notice in the event of any material degradation of the Service. Merchant acknowledges that the operation of the Service may from time to time encounter technical or other problems and may not continue uninterrupted or without technical or other errors and, subject to the Service Level Agreement, Recurly will not be responsible to Merchant or others for any such interruptions, errors or problems or a discontinuance of the Service. Recurly has no obligation to continue producing or releasing new versions of the Service.

II. Term and Termination

This Agreement will commence on the Effective Date and will continue through the initial term set forth in the Order Form or any order for Services between the Parties (“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 Party 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.

III. Service Implementation and Registration

  1. 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 rate limit the Service in accordance with Recurly’s documentation. Such suspension or limitation will remain in effect until Merchant corrects any issues specified by Recurly and a rate limitation will not relieve Merchant of Merchant’s payment obligations under the Agreement.
  2. 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 ACH transfers, Merchant must set up an account relationship with Recurly’s approved ACH processor(s). In using the Service, the 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.
  3. 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.
  4. 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 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.

IV. 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. 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 except as otherwise provided in this Agreement, all payment obligations are non-cancelable and nonrefundable. 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 are also separate and not included in Recurly’s fees.

V. Confidentiality

  1. "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.
  2. 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.

VI. Service Use and Limitations

  1. Recurly is a subscription management and billing software 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.
  2. The rights granted herein are subject to the following restrictions (the "License Restrictions"). Merchant will not directly or indirectly:
    • reverse engineer, decompile, disassemble, copy, modify, sublicense, assign, 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.
  3. 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 collected through the Service (“Customer Data”), including, but not limited to, credit card numbers and/or checking account information (“Payment Information”). Recurly will access and use Customer Data solely as reasonably necessary to provide the Service (including facilitating any Third Party Products (as defined below) to Merchant and will keep Customer Data confidential and secure in accordance with general industry standards. Recurly is and will continue to be PCI compliant and 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 Payment Information on Merchant’s behalf. 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 or where Recurly is in compliance with the Agreement at the time of such loss or damage. 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 Products.
  4. The Service may provide Merchant with access to, be integrated with, or contain links or references to, products, services (including add-on Services), 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 ("Third Party Terms") and Merchant will comply with all Third Party Terms. Merchant will indemnify and hold Recurly harmless from all damages, costs, settlements, attorneys’ fees and expenses arising from or related to any claims related to Merchant’s use of Third Party Products or Merchant’s breach of any Third Party Terms. Any facilitation 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). In the event Merchant purchases or uses any such Third Party Products, Merchant acknowledges and agrees that Recurly may provide Customer Data to the applicable Third Party Product provider in order to enable Merchant’s use of such service.
  5. Merchant represents, warrants and agrees that Merchant will only use the Service in compliance with all applicable laws and regulations, and that Merchant will not use the Service 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 Service, Merchant will at all times comply with Recurly’s then-current Acceptable Use Policy for the Service set forth at https://recurly.com/legal/acceptable-use (the “AUP”), which is hereby incorporated into this Agreement by this reference.
  6. Following any termination or expiration of this Agreement or Merchant’s Recurly account, Recurly will retain a copy of Merchant’s Customer Data for a period of thirty (30) days and will delete Customer Data promptly thereafter. Merchant acknowledges and agrees that (i) Merchant is solely responsible for exporting a copy of Merchant’s Customer Data prior to any such termination or expiration and (ii) if Merchant requires access to such data during the thirty (30) day period following the Agreement’s termination, Merchant must notify Recurly in advance and in writing of such requirement and Merchant may be required to pay professional service fees to Recurly to retrieve such data subject to a separately executed Statement of Work. In addition, Recurly will not be obligated to release any Payment Information 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 providing their PCI Attestation of Compliance.

VII. Proprietary Rights

  1. 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 (and all goodwill associated therewith, is and shall remain solely owned by Recurly), including but not limited to the design, artwork, logos, functionality and documentation relating thereto and any all derivative works and improvements 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.
  2. Subject to the terms and conditions hereof, Recurly hereby grants Merchant a limited, revocable, nonsublicensable, nonresellable, license to display the Recurly Property (excluding any software code) solely for its own, non-commercial use of the Service or other uses which are expressly permitted by Recurly in writing. Notwithstanding such permitted uses and license, Merchant acknowledges that all derivative designs and artwork which utilize the Service’s logo or other Recurly Property (collectively, “Derivative Works”) are the sole property of Recurly. No other rights are granted to Merchant with respect to the Recurly Property other than those rights granted explicitly herein, including with respect to any Derivative Works and any goodwill generated thereby, shall inure solely to the benefit of Recurly.
  3. Any text, images, or other audiovisual information posted on the Service by a user of the Service (collectively, “User Content”) will belong to the user that posted such User Content. Users of the Service may be Merchant, Merchant’s agents, or Merchant’s customers. Merchant may use any User Content posted by Merchant or its agents without restriction. Merchant may only use User Content posted by Merchant’s customers as part of Merchant’s use of the Service in accordance with this Agreement. When Merchant posts User Content on the Service, Merchant agrees that Recurly may use and make available such User Content solely as reasonably necessary to provide the Service to Merchant (e.g. Merchant may provide the Service with User Content to enable the Service to send communications on Merchant’s behalf to Merchant’s customers regarding their subscription billing. By posting User Content to the Service, Merchant hereby represents and warrants that Merchant has the right to post that User Content and to grant the foregoing rights to Recurly. Recurly reserves the right to remove any content (including, without limitation, User Content) from the Service if it reasonably believes such content is in violation of the Agreement or guidelines set forth in Recurly’s documentation.
  4. 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.
  5. 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.

VIII. 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, NON-INFRINGEMENT AND PROPRIETARY RIGHTS, AND WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OR TRADE; (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, SECURE 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) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT MERCHANT’S OWN DISCRETION AND RISK AND MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MERCHANT’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL; 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.

IX. Limitation of Liability

EXCEPT FOR ANY INDEMNIFICATION, PAYMENT, AND CONFIDENTIALITY OBLIGATIONS OF THE PARTIES SET OUT HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR A THIRD 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.

X. Indemnification

Recurly will indemnify, defend and hold Merchant (and Merchant’s officers, directors, consultants and employees) harmless from and against any and all costs, 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 any claim that 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) terminate this Agreement and provide Merchant with a refund of any prepaid unused fees. 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 failure to use updated or modified versions of the Service provided by Recurly to avoid a claim; (4) Recurly’s compliance with any specifications or requirements provided by Merchant; (5) Merchant’s use of the Service other than in accordance with this Agreement; (6) Merchant’s use of Third Party Products (7) Recurly’s access to and/or use of any Third Party Products as authorized or directed by Merchant; or (8) Recurly’s use of Customer Data as authorized or directed by Merchant. Merchant will indemnify and hold harmless Recurly from any Losses relating to any claim that results from the exclusions set forth in the previous sentence. The Parties’ respective indemnification obligations hereunder with respect to a particular claim will be conditioned upon (x) the Party seeking indemnification’s (“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’s having the right to assume sole control over the defense and settlement of such claim (at its cost and expense); and (z) the Indemnitee’s providing the Indemnitor with reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). 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.

XI. Governing Law and 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, and the Parties shall submit to the personal and exclusive jurisdiction of the courts located within the county of San Francisco, California. Notwithstanding the foregoing, if Merchant’s primary place of business is located in Europe, the Middle East, or Africa, then this Agreement and the relationship between Merchant and Recurly will be governed by the laws of England without regard to its conflict of law provisions, and the Parties shall submit to the personal and exclusive jurisdiction of the courts located within London, England.

XII. Miscellaneous

This Agreement (including any applicable Order Form(s)) constitutes the entire agreement between Merchant and Recurly and supersedes any and all previous agreements, written or oral, between Merchant and Recurly, including previous versions of this Agreement. This Agreement may only be modified or amended in a writing signed by authorized representatives of both Parties. Any notice required or permitted in this Agreement will be sent via email (and will be deemed to have been duly given upon receipt) (i) if to Recurly, at legal@recurly.com or (ii) if to Merchant, at the email address that Merchant provides when registering its account. Either Party may update its email address for notice purposes via a notice delivered in accordance with this paragraph. 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). Recurly may subcontract its obligations hereunder (provided that Recurly will at all times remain fully responsible for the performance of any subcontractor). 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. The Parties will be 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. 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. 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.

XIII. Certain Definitions

Effective Date: The date when the Agreement is executed and becomes binding.

Total Payment Volume (TPV): All successful, non-voided automated transaction amounts less all successful, non-voided refunds.

Total Payment Volume (TPV) Allowance: The TPV amount designated in the applicable Order Form which may be run through the Service during the designated subscription year/term before overage fees may be incurred.