If there is a conflict or discrepancy between the ToS and this Agreement, this Agreement shall control (but only to the extent of any conflict or discrepancy). Avnovo Payments is currently only available to entities operating a business in the United States with a United States bank account.
Table of Contents
“Avnovo Account” means the account you established to use Avnovo’s Subscription Services (as defined in the ToS).
“Avnovo Payments Account” means your Avnovo Payments account, which you have set up via Avnovo Payments and is part of your Avnovo Account.
“Payment Network(s)” means a card network, clearinghouse, or other payment systems through which payment transactions process, clear, or settle. Examples of Payment Networks include Visa Europe Ltd., Visa U.S.A., Inc., Visa Canada Inc. and Visa International (collectively, “Visa”), MasterCard International Incorporated (“MasterCard”), American Express, and the ACH transaction clearinghouses.
“Payment Processor” has the meaning given in Section 1.c below.
“Transactions” means credit, debit, ACH, and other types of payments to you with respect to sales of your products or services initiated by your customers via the Avnovo Payments platform. “Transactions” includes transactions to facilitate a reversal or chargeback of a Transaction.
Capitalized terms used in this Agreement but not otherwise defined in this Agreement shall have the definition provided in our ToS.
1. Avnovo Payments
1. Avnovo’s Role
Avnovo Payments is a service we provide that allows for payment onboarding and payment underwriting and allows you to receive card and ACH payments (and certain other types of electronic payments that we might make available from time to time) from your customers for your products and services through your Avnovo Payments Account. Avnovo provides the technology and user portal for Avnovo Payments, but payments are processed by our Payment Processor. Avnovo is not a bank, payment institution, money service business, or payment processor; instead, we supply Avnovo’s products and services, including Avnovo Payments.
We reserve the right to limit, cap, or refuse to make or complete any payment Transaction requested or initiated through Avnovo Payments, for any reason, in our sole discretion, without any liability or obligation to you. By using Avnovo Payments, you grant to us, and we reserve the right to suspend or cancel any Transactions requested or initiated by you or your customers.
If payment is suspended, reversed, charged back, or canceled (either by us or by another party, such as a card issuer), we reserve the right to offset those amount(s) by (a) withholding proceeds received from your Transactions, or (b) directly debiting the bank account associated with your Avnovo Payments Account. We also reserve the right to withhold or collect any fees owed to us by either withholding proceeds or directly debiting the bank account associated with your Avnovo Payments Account. In our sole discretion, you authorize us to withhold and/or collect from any such account(s) any fees or other amounts owed by you to Avnovo.
We will use commercially reasonable efforts to support you to help resolve issues relating to Avnovo Payments (which will be consistent with our support obligations in our ToS). The Payment Processor has the sole and exclusive responsibility for processing Transactions (as described below), including the settlement of funds; however, we will provide reasonable assistance in liaising between you and the Payment Processor. You are solely and exclusively responsible for providing support to your customers for all issues related to your products and services, including, but not limited to, issues arising from the processing of Transactions through Avnovo Payments.
3. The Payment Processor
The Payment Processor’s role is to enable you to i) accept payments by, among other things, facilitating the clearing and settlement of Transactions, and ii) process payments, including credit card, debit card, and ACH payments, with respect to sales of your products and services through your Avnovo Payments Account.
The Payment Processor is currently Stripe, Inc., a separate entity not affiliated with Avnovo, which provides the technical services and processing of payments for Avnovo Payments. By using Avnovo Payments to process and settle Transactions, you agree to the Stripe Connected Account Agreement, including the United States Stripe Services Agreement and the applicable Financial Services Terms, and to the extent you use a payment method that is subject to additional terms, the Payment Terms (collectively, the “Processor Terms”). By accepting this Agreement and creating an Avnovo Payments Account, you agree to be bound by the Processor Terms, a legal agreement between you and the Payment Processor. The Payment Processor’s obligations to you are governed by the Processor Terms, not this Agreement. We are not a party to the Processor Terms and have no obligations to you under them. In particular, Avnovo is not responsible for ensuring that funds for Transactions are transmitted to you in accordance with the Processor Terms. Avnovo does not receive funds in connection with the settlement of Transactions and is not liable to you for settlements. We reserve the right to change the Payment Processor or add additional Payment Processors at any time. By continuing to use Avnovo Payments after we change or add a Payment Processor, you agree to be bound by the terms applicable to the new Payment Processor’s services.
4. Your Role
You assume all responsibility for your and your authorized agents’ and employees’ use of Avnovo Payments, including any additional responsibilities as described in the Processor Terms. You are solely responsible for verifying the identity of your customers and the eligibility of payment methods used to pay for your products and services. Avnovo does not guarantee or assume any liability for any Transactions authorized and completed that may later be reversed or charged back (as described below). You are solely responsible for all reversed or charged back Transactions regardless of the reason or timing of the reversal or chargeback. The Payment Processor or we may add or remove one or more types of Payment Networks or payment types, at our or the Payment Processor’s sole discretion, at any time, without prior notice to you.
You have sole and exclusive responsibility to determine what, if any, taxes apply to the sale of your goods and services and/or the payments you receive in connection with your use of Avnovo Payments (“Taxes”). It is solely your responsibility to assess, collect, report, or remit the correct Taxes to the proper tax authority in the applicable jurisdiction(s). We are not obligated to, nor will we, determine whether Taxes apply, calculate, collect, report, or remit any Taxes to any tax authority arising from any Transaction. You will indemnify and hold us harmless from and against any and all liability related to Taxes, except for any taxes based on our net income. You agree that we may send you any Tax-related information electronically. If you are tax-exempt, you must provide us with an appropriate certificate or other evidence of tax exemption satisfactory to us on our request.
2. Using Avnovo Payments
a. Transaction and Activity Limits; Application and License
You may only use Avnovo Payments for business purposes in connection with the business identified by you in your Avnovo Payments application. You may not use it for personal, family, or household purposes or in connection with any other business.
We reserve the right to establish limits on the number or dollar volume of Transactions you may submit and impose other Avnovo Payments Account activity limits. These may be aggregate limits (e.g., a limit on the number or dollar volume of Transactions permissible at any given time) or velocity limits (e.g., a limit on the number or dollar volume of Transactions in a given day or other period). We will make reasonable efforts to notify you by email or other reasonable means (determined by us at our discretion) if your limits decrease, but you agree that we may impose and adjust these limits at our discretion and are not required to notify you of limits we have established.
To use Avnovo Payments, you must apply to use Avnovo Payments via your Avnovo Account. We will review all applications to determine your eligibility to use Avnovo Payments. The Payment Processor and we may reject or approve your application to use Avnovo Payments at any time, for any reason, or for no reason, at our sole and absolute discretion.
You may request or may be approved for certain Transaction volume and activity limits. If you attempt to initiate Transactions outside your approved limits we reserve the right to reject the Transaction(s) and/or instruct the Payment Processor to hold the payout of such Transaction(s) for up to one-hundred and eighty (180) days from the date of the last Transaction processed under your terms with your customer, plus the period of any warranty, guarantee, and/or return policy on goods and/or services sold. We may request that you provide us with additional information (including but not limited to financial or business information) regarding your business. Failure to provide such information may result in us suspending or terminating your ability to use Avnovo Payments, changes to your Transaction limits, or changes to your Payout Schedule (as defined in the Processor Terms).
Upon approval of your application to use Avnovo Payments, we grant you a non-exclusive, non-transferable, non-sublicensable, limited, revocable right to use the Avnovo Payments. This license shall terminate upon the earliest of (i) the termination of your use of Avnovo Payments; (ii) termination of this Agreement, (iii) termination of the Processor Terms; or (iv) termination of your Avnovo Account as per the ToS. Neither this license nor any other part of this Agreement shall grant you any rights in Avnovo Payments or any other intellectual property rights, except for the limited license described herein.
You are required to comply with all applicable laws, rules, and regulations in connection with your use of Avnovo Payments (including but not limited to those governing financial services, consumer protections, unfair competition, anti-discrimination, or false advertising). Additionally, in conjunction with the requirements and restrictions of the ToS and our Avnovo Acceptable Use Policy (“AUP”) you shall not: (i) permit any third party to access to the Avnovo Payments Product the except as permitted in this Agreement or by the ToS; (ii) create derivative works based on Avnovo Payments or the Avnovo Subscription Service; (iii) copy, frame or mirror any part of the content of the Avnovo Payments other than copying or framing for your internal business purposes; (iv) reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code or trade secrets for any part of Avnovo Payments; (v) use Avnovo Payments in a manner which violates applicable laws or regulations; (vi) circumvent or exceed the Transaction and activity limits we set, including but not limited to those listed in our Service catalog (vii) allow a customer to use a credit card directly or indirectly to obtain cash advances (including, e.g., by providing cash refunds for purchases paid by credit card, except to the extent permitted by applicable Payment Network Rules); (viii) submit any Transaction for processing that does not arise from sale of your goods or services to a customer; (ix) act as a payment intermediary or aggregator or otherwise resell Avnovo Payments to or on behalf of any third party; (x) send what you believe to be potentially fraudulent authorizations or fraudulent Transactions; or (xi) use Avnovo Payments in a manner that a Payment Network reasonably believes to be an abuse of the Payment Network or a violation of the Payment Network Rules.
You further agree not to permit any unauthorized third party to do any of the following: (i) access or attempt to access our systems, programs, or data that are not made available for public use; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute, in any way, material from us; (iii) permit any third party to use and benefit from Avnovo Payments via a rental, lease, timesharing, service bureau, or other arrangements; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of Avnovo Payments; or (vi) use any tool to enable features or functionalities that are otherwise disabled in Avnovo Payments.
Additionally, you shall not submit directly or indirectly any Transaction that: (i) you know or should know is fraudulent, illegal, or not authorized; (ii) is outside the normal course of your business (as described in the Avnovo Payments application you submitted to us); or (iii) may be self-serving and/or not related to your business.
c. Your Customers
You will not impose any fee or surcharge on a customer for using a particular payment method if such fee or surcharge is prohibited by applicable law, Payment Network Rules, or the Processor Terms. Avnovo Payments will automatically render a customer receipt for each Transaction; however, it is up to you to ensure that you provide an informational slip, invoice, or receipt to your customer at the conclusion of the Transaction that includes all information required under Payment Network Rules and applicable law or regulation.
It is your responsibility to obtain your customers’ consent and authorization to be billed for each Transaction (or, as the case may be, on a recurring basis) in compliance with applicable law and the applicable Payment Network Rules. You will also comply with all rules, regulations, and industry best practice guides (including but not limited to NACHA best practices) regarding recurring payments. You will provide your customers with cancellation rights for authorized Transactions (including but not limited to recurring Transactions) to the extent required by applicable law, Payment Network Rules, or the Processor Terms.
d. Data Security and Privacy
i) Data privacy
You also acknowledge that the Payment Processor is required to report your business name and the name of your principals to the Member Alert to Control High-Risk merchants list of MasterCard (“MATCH List”) maintained by MasterCard and accessed and updated by American Express, to the VMAS database upheld by Visa Europe, and/or to the Consortium Merchant Negative File maintained by Discover, if applicable, pursuant to the requirements of the Payment Network Rules.
We collect information about your Transactions, including:
- Your customer’s name and company name
- Email address of your customers
- Card details such as tokenized card number, expiration date, name on card, country, and zip code
- Bank account details- tokenized account number and routing number
- Billing address and shipping address
By using Avnovo Payments, you agree that Avnovo may use information about your Transactions for its own internal purposes, including but not limited to product improvement and product development. The Payment Processor collects information about your Transactions as well. For more information about the Payment Processor’s data practices, please see the Processor Terms.
You are solely responsible for disclosing to your customers that we will collect and process their data by providing Avnovo Payments to you, and that we may transmit or possess it outside of your or their jurisdiction, and that it may be subject to disclosure as required by applicable law.
If you receive information about others through the use of Avnovo Payments, you must keep such information secure and only use it in connection with your use of Avnovo Payments.
ii) Avnovo Data Protection
Please see Avnovo Data Policy for information on how we protect and secure your data.
iii) Your Data Security
You agree to comply with all applicable laws, regulations, and rules in connection with your use of Avnovo Payments. Without limiting the generality of the foregoing, you agree that at all times, you shall be compliant with applicable Payment Card Industry Data Security Standards (“PCI-DSS”) and, as applicable, the Payment Application Data Security Standards (“PA-DSS”). You agree to immediately provide us with documentation evidencing your compliance with PCI-DSS and/or PA-DSS upon request and as applicable. You also agree that you will use only PCI-DSS and PA-DSS-compliant service providers to store or transmit card information, including a cardholder’s account number, expiration date, and CVV2. You must not store CVV2 data at any time. Information on PCI-DSS can be found on the PCI Council’s website. Your responsibility is to comply with these standards and all the Payment Network Rules.
e. Suspicion of Unauthorized or Illegal Use
We reserve the right not to proceed with any Transaction you submit that we believe violates this Agreement or that may expose you, us, the Payment Processor, or any other third party to actual or potential risk or harm, including, but not limited to, fraud or other criminal or prohibited acts. By using Avnovo Payments you are hereby granting us authorization to share information with law enforcement or regulatory authorities about you, your Transactions, or your Avnovo Payments Account.
f. Payment Network Rules
The Payment Networks have established guidelines, bylaws, rules, and regulations referred to as the “Payment Network Rules”. You are required to comply with all applicable Payment Network Rules. The Payment Network Rules for Visa, MasterCard, Discover, and American Express are available on the Internet at the following links: Visa, MasterCard, Discover, and American Express. The Payment Networks may amend the Payment Network Rules at any time and without notice to you or to us. We reserve the right to change this Agreement at any time, without prior notice to you, as may be necessary to comply with the Payment Network Rules.
g. Disclosures and Notices
You agree that we can provide disclosures and notices, including tax forms, regarding Avnovo Payments to you by (at our sole option) mailing or emailing such notices to you according to the information provided by you. Such disclosures and notices shall be considered to be received by you within twenty-four (24) hours of the time it is emailed or upon mailing unless we receive notice that the email or mailing was not delivered.
h. Audit Rights
Suppose we believe that you have had a security breach, personal data breach, or other compromises of data may have occurred. In that case, we may require you to have a third-party auditor that is approved by us conduct a security audit of your systems and facilities and issue a report to be provided to us and, at our discretion and applicability, to the Payment Processor, its Financial Services Provider, the Payment Networks, and law enforcement, at your sole cost and expense.
i. Restricted Industries
In addition to those restricted industries contained in our AUP and any other industry, our providers or we may choose to restrict from time to time. We do not allow certain industries to use Avnovo Payments due to restrictions by Payment Networks and the Payment Processor’s requirements. This list (as maintained by the Payment Processor) represents (but is not exhaustive) businesses and business practices that are prohibited from using Avnovo Payments. If you have any questions as to whether this list applies to you, please contact us.
3. Getting an Avnovo Payments Account
1. Eligibility and Application
You must have an Avnovo Account and be in good standing with Avnovo to be eligible to apply to use Avnovo Payments. To apply to use Avnovo Payments for your business, you are required to register for both an Avnovo Account and an Avnovo Payments Account. When you register for an Avnovo Payments Account, you are applying to use Avnovo Payments. At a minimum, you must provide us with your name (if you are a sole proprietor), your business or trade name, your address, email, phone number, business identification or registration number, and any other information that we require. We may also collect personal information (including name, birth date, and government-issued identification number) about your beneficial owners or principals. As described below, we reserve the right to request additional information before reviewing your application. We and the Payment Processor reserve the sole and exclusive right to reject or approve your application to use Avnovo Payments.
2. Company Descriptions and Site URL
As part of your registration, you must provide the name under which you do business (which may be the business’ legal name or a “doing business name”) (e.g., ABC Online Store) and a billing descriptor. These two fields and your site URL may appear in your customers’ credit or debit card statements. To avoid customer confusion and Transaction disputes, you must enter a description that clearly identifies your business. You hereby agree to indemnify us for any costs, liabilities, losses, or expenses from disputes due to your failure to do so.
3. Verification and Underwriting
To verify your identity and assess your business risk, we may require you to provide information in addition to the information you provided when you applied for an Avnovo Payments Account. The additional information may include, among other things, financial statements, business invoices, reseller authorization or distributor information, a driver’s license or other government-issued identification, or business license for you or for any of the owners or principals of your business. We may also request your permission to do a physical inspection at your place of business and to examine books and records that pertain to your compliance with this Agreement. We may request the information required to verify your identity and assess your business risk at any time after approving your use of Avnovo Payments.
Your failure to comply with any request for additional information, inspection or examination within five (5) days may result in denial of your application to use Avnovo Payments or suspension or termination of your Avnovo Payments Account.
We reserve the right to hold funds and/or disable payouts in your Avnovo Payments Account while awaiting the information requested above. Avnovo may use your information to apply for card merchant acquiring accounts on your behalf with certain Payment Networks (such as American Express).
After we have collected and verified all your information, we will review your application and make a determination if you are eligible to use Avnovo Payments. We will notify you once your Avnovo Payments Account has been either approved or deemed ineligible.
By accepting the terms of this Agreement, you are providing us with authorization to retrieve information about you by using third parties, including credit bureaus and other information providers. You acknowledge that such information may include your name, address history, credit history, and other data about you. We may periodically update this information to determine whether you continue to meet the eligibility requirements for an Avnovo Payments Account.
You agree that we are permitted to contact and share information about you, and your application (including whether you are approved or declined) and your Avnovo Payments Account with the Payment Processor and other third parties in order to perform Avnovo Payments. This includes sharing information: (i) about Transactions for regulatory or compliance purposes; (ii) for use in connection with the management and maintenance of Avnovo Payments; (iii) to create and update our and their customer records about you, and to assist us and them in better serving you; and (iv) to conduct our and their risk management process.
4. Designated Country
By registering for an Avnovo Payments Account, you are obligated to identify the location from where you are operating the business that will use Avnovo Payments in the United States. By registering for an Avnovo Payments Account, you are confirming that you are either a legal resident of the United States or you are duly established and, if necessary, registered or licensed as a business entity authorized to conduct business in the United States. Avnovo Payments may only be used in the United States.
4. Processing Transactions and Receiving Your Funds
a. Avnovo Payments Fees
You agree to pay the fees for processing that are set out in your Avnovo Payments Account, Avnovo’s Products and Services Catalog, or another current payment schedule we provide to you, which are incorporated herein by reference (the “Processing Fees”). Processing Fees shall be collected from you by us in accordance with the available documentation.
We reserve the right to change the Processing Fees at any time and will provide you with at least thirty (30) days prior notice, which may be given by email, in your Avnovo Payments Account, or through any other means we reasonably determine. If you continue to use Avnovo Payments and the Payment Processor services after thirty (30) days, you are deemed to have accepted the change in Processing Fees as notified.
b. Security Interest
As security for performance of your obligations under this Agreement, you grant us a first priority lien and security interest on (i) all funds processed and deposited into all Payout Accounts (as defined in the Processor Terms) and any other bank accounts associated with your Avnovo Payments Account, (ii) your Reserve (as defined below), and (iii) any funds processed using the Avnovo Payments. These security interests and liens will secure payment and performance of all of your obligations under this Agreement and any other agreements now existing or later entered into between us and you, including, without limitation, your obligation to pay any amounts due and owing to us. You will execute, deliver and pay the fees for any documents we request to create, perfect, maintain, and enforce this security interest.
c. Our Collection Rights
To the extent permitted by law, we may collect any obligations you owe us under this Agreement, including overdue fees owed to us for your use of our products and services, by deducting the corresponding amounts from your Reserve (as that term is defined below) or from funds payable to you arising from the settlement of Transactions. Processing Fees will be assessed at the time a Transaction is processed and will be first deducted from the funds you will receive for such Transaction. If these amounts are not sufficient to meet your obligations to us, we may charge the payment method associated with your Avnovo Payments Account for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with the collection of your delinquent Avnovo Payments Account and related chargebacks in addition to the amount owed, including, without limitation, attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
Additionally, we may require a personal guarantee from a principal of your business for funds owed under this Agreement. If we require a personal guarantee, we will specifically inform you in advance.
You agree that all communication in relation to delinquent accounts may be made by mail, electronic mail, or by phone, to any contact information provided to Avnovo by you.
Funds held in reserves are amounts of money set aside to cover your chargebacks, refunds, or other payment obligations under this Agreement (the “Reserve”). If a reserve is established for your Avnovo Payments Account, we will set the terms of your Reserve and notify you of such terms, which may require that a certain amount (including the full amount) of the funds received for a Transaction are held for a period of time, or that additional amounts are held in the Reserve. We, in our discretion, may elect to change the terms of the Reserve at any time, for any reason, based on your payment processing history or as requested by the Payment Processor.
We may require you to fund the Reserve by means of: (i) any funds payouts made or due to you for Transactions submitted to Avnovo Payments; (ii) amounts available in your bank account associated with your Avnovo Payments Account by means of ACH debit to your Avnovo Payments Account; or (iii) other sources of funds associated with your Avnovo Payments Account; or (iv) requesting that you provide funds to us for deposit to the Reserve.
You agree that: (i) you are not entitled to any interest or other compensation associated with the funds held in the Reserve; (ii) you have no right to direct that account; (iii) you may not assign any interest in those funds or that account; and (iv) in the event that this Agreement or your Avnovo Subscription Service is terminated, we may use the funds in the Reserve to settle any outstanding Transactions and apply any remaining amounts to any outstanding balances you may owe us for your use of Avnovo’s products and services.
e. Contesting Chargebacks and Retrievals
You or Avnovo may elect to contest chargebacks or retrievals assessed to your Avnovo Payments Account. We, at our sole discretion, may provide you with assistance, including notifications and software to help contest your chargebacks or retrievals. We do not assume any liability for our role or assistance in contesting chargebacks or retrievals.
You grant us permission to share records or other information required with the cardholder, the cardholder’s financial institution, and your financial institution to help resolve any chargeback or retrievals. You acknowledge that your failure to provide us with complete and accurate information in a timely manner may result in an irreversible chargeback being assessed, in addition to any other remedies we may have under this Agreement or applicable law.
If the cardholder’s issuing bank or the Payment Network does not resolve a dispute in your favor, we may recover the chargeback amount and any associated fees from you as described in this Agreement.
We reserve the right, upon notice to you, to charge a fee for mediating or investigating chargeback or retrievals disputes.
Submission of Valid Transactions
You must not submit any Transactions which: (a) have not been approved by the card or bank account holder or is known by you to be fraudulent; (b) are outside your normal course of business; or (c) are made by you (including but not limited to your personal accounts or credit cards), your family members, principals, or employees who are not for the purchase of goods or services or represent a credit for such purchases.
If we reasonably believe that a Transaction violates any of the provisions or terms of this Agreement or that a Transaction is fraudulent, we may at our sole discretion, and in addition to any other remedies we may have, (i) refuse to allow a Transaction to be processed; (ii) process the Transaction and retain the funds received from such processing until such time that we are able to ascertain the validity of the Transaction in accordance with applicable rules and regulations; (iii) suspend processing Transactions on your behalf and/or terminate this Agreement; or (iv) modify this Agreement.
5. Term and Termination
This Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use Avnovo Payments or until terminated by you or by Avnovo in accordance with this Agreement.
You may terminate this Agreement by closing your Avnovo Payments Account or your Avnovo Account at any time. We may terminate this Agreement and close your Avnovo Payments Account at any time, for any reason, upon notice to you. We may suspend your Avnovo Payments Account at any time for any reason, with or without prior notice to you.
We may terminate your Avnovo Payments Account and your access to Avnovo Payments and any rights in respect of your Avnovo Payments Account, or terminate this Agreement, at any time, for any reason, or for no reason, including if: (i) we determine that you may be ineligible for Avnovo Payments because of the risk associated with your Avnovo Payments Account, including, without limitation, significant credit or fraud risk, or for any other reason as determined by us; (ii) you do not comply with any of the provisions of this Agreement, the Processor Terms, or our TOS; or (iii) upon request of the Payment Network, the Payment Processor, or a card issuer. Termination of the Processor Terms may, at the discretion of Avnovo, result in a termination of this Agreement. Termination of this Agreement shall entitle Avnovo to cause the Payment Processor to terminate the Processor Terms as well.
Termination of this Agreement will not necessarily terminate your Avnovo ToS, unless we determine otherwise. However, termination of your Avnovo ToS or downgrading your subscription to free will automatically terminate your access to Avnovo Payments. We reserve the right to terminate your Avnovo ToS (subject to its terms) in conjunction with this Agreement.
3. Effects of Termination
Upon termination and closing of your Avnovo Payments Account, we will immediately discontinue your access to Avnovo Payments. You agree to complete all pending Transactions and stop accepting new Transactions through Avnovo Payments. You will not be refunded the remainder of any Processing Fees that you have paid for Avnovo Payments if your access to or use of Avnovo Payments is terminated or suspended. Any funds in the Payment Processor’s Financial Services Provider’s custody will be paid out to you subject to the terms of your Payout Schedule (as defined in the Processor Terms).
Termination does not relieve you of your obligations as defined in this Agreement, and the Payment Processor may elect to continue to hold any funds deemed necessary, pending resolution of any other terms or obligations defined in this Agreement, including, but not limited to, chargebacks, fees, refunds, or other investigations or proceedings.
Upon termination you agree: (i) to immediately cease your use of Avnovo Payments; (ii) that the license granted under this Agreement shall end; (iii) that we reserve the right (but have no obligation other than those imposed by applicable laws or regulations) to delete all of your information and account data stored on our servers; (iv) that we will not be liable to you for compensation, reimbursement, or damages in connection with your use of Avnovo Payments, or any termination or suspension of your use of Avnovo Payments, or deletion of your information or account data; and (v) that you will still be liable to us for any fees, fines, or other financial obligations you owe us related to your use of Avnovo Payments prior to termination.
6. Liabilities and Warranties
a. Your Liabilities and Indemnities
Nothing in this Agreement shall serve to diminish your liability under the Processor Terms or the Avnovo ToS. In addition to your obligations in this Agreement, you are obliged to fulfill your obligations under this Agreement and those under the Processor Terms and the Avnovo ToS.
If we become liable to the Payment Processor or any other third party for any penalties, fines, fees, or other liabilities under or in respect of the Processor Terms, Avnovo Payments, or the Payment Network Rules related to or arising from your use of Avnovo Payments, you agree to indemnify and hold us harmless from and against any and all such liabilities.
You agree to indemnify and defend Avnovo, our affiliates, and their and our respective officers, employees, agents and service providers (collectively, the “Avnovo Entities”) against any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) brought by a third party against the Avnovo Entities, and you agree to fully reimburse the Avnovo Entities for any Claims that result from: (i) your breach of any provision of this Agreement; (ii) any fees, fines, penalties, disputes, reversals, returns, chargebacks (as such terms are defined in the Processor Terms), or any other liability we incur that results from your use of Avnovo Payments; (iii) negligent or willful misconduct of your owners, employees, contractors, or agents; (iv) contractual or other relationships between you and your customers; or, (v) third-party indemnity obligations we incur as a direct or indirect result of your acts or omissions, including, but not limited to, indemnification of the Payment Processor or any Payment Network.
We will have the final decision-making authority with respect to any Claims, including, without limitation, claims for refunds for purchased items that are filed with us by you or your customers. You will be required to reimburse us for any liability incurred by the Avnovo Entities. This will include the full purchase price of the item plus the original shipping cost (and in some cases, you may not receive the item back). You will not receive a refund of any fees paid to us.
If you are liable for any amounts owed to us as a result of a Claim, we may immediately remove such amounts from your Reserve Account and deduct the amounts owed to us from such Reserve Account funds. If you do not have sufficient funds in your Reserve Account to cover your liability, you will be required to immediately add additional funds to your Reserve Account to cover funds owed to us. If you do not do so, we may engage in collections efforts to recover such amounts from you at your cost and expense.
b. Your Warranties
You represent and warrant to us that: (i) if you are a sole proprietor, you are at least eighteen (18) years of age or, if you are a corporation or other entity, that the person entering into this Agreement on your behalf is at least eighteen (18) years of age, is authorized to act on your behalf, and has the authority to bind you to this Agreement; (ii) you are eligible to register and use Avnovo Payments and have the right, power, and ability to enter into and perform under this Agreement; (iii) the name or domain identified by you when you registered is your name or business name under which you sell goods and services and the information that you have provided to us in your application is accurate and complete; (iv) you are not a member of an organized crime group, a party who has been a member of an organized crime group in the past five years, a quasi-member of an organized crime group, a corporate racketeer, or other similar party, nor are any of your officers or employees a member of the foregoing; and (v) you will not carry out, nor use a third party to carry out, any unlawful or illegal acts.
You hereby covenant to us that: (i) any Transactions submitted by you will represent a bona fide sale by you; (ii) any Transaction submitted by you will accurately describe the goods and/or services sold and delivered to a customer; (iii) you will fulfill all of your obligations to each customer for which you submit a Transaction and will resolve any disputes or complaints directly with your customers; (iv) you and all Transactions initiated by you will comply with all applicable laws, rules, and regulations applicable to your business, including, but not limited to, any applicable tax laws and regulations; (v) except in the ordinary course of business, no Transaction submitted by you through Avnovo Payments will represent a sale to any principal, partner, proprietor, or owner of your entity; (vi) you will not use Avnovo Payments, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use or others’ use of Avnovo Payments; and (vii) any information you provide to us will be accurate and complete.
c. Avnovo’s Warranties
AVNOVO PAYMENTS AND ALL ACCOMPANYING DOCUMENTATION AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. USE OF AVNOVO PAYMENTS IS AT YOUR OWN RISK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH AVNOVO PAYMENTS FROM: (I) AVNOVO; (II) THE PAYMENT PROCESSOR, SUPPLIERS OR LICENSORS OF AVNOVO OR THE PAYMENT PROCESSOR; OR (III) ANY OF THE RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR (II) ABOVE (COLLECTIVELY, THE “DISCLAIMING ENTITIES” AND INDIVIDUALLY, A “DISCLAIMING ENTITY”), WILL CREATE ANY WARRANTY. YOU SPECIFICALLY ACKNOWLEDGE THAT WE DO NOT HAVE ANY CONTROL OVER THE PRODUCTS OR SERVICES THAT ARE PAID FOR WITH AVNOVO PAYMENTS, AND WE CANNOT ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR ARE AUTHORIZED TO DO SO.
WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT WARRANT THAT: (I) THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH AVNOVO PAYMENTS IS ACCURATE, RELIABLE, OR CORRECT; (II) AVNOVO PAYMENTS WILL MEET YOUR REQUIREMENTS; (III) AVNOVO PAYMENTS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (IV) AVNOVO PAYMENTS WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; (V) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (VI) AVNOVO PAYMENTS IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF AVNOVO PAYMENTS IS OBTAINED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH OBTAINMENT. AVNOVO MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT HOW LONG WILL BE NEEDED TO COMPLETE THE PROCESSING OF A TRANSACTION.
THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH AVNOVO PAYMENTS, OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NEITHER AVNOVO, THE PAYMENT PROCESSOR, NOR THE FINANCIAL SERVICES PROVIDER WILL BE A PARTY TO, OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
d. Limitation of Liability and Damages
IN NO EVENT SHALL WE, A DISCLAIMING ENTITY OR OUR AFFILIATES BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THIS AGREEMENT OR AVNOVO PAYMENTS, INCLUDING, WITHOUT LIMITATION, THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF AVNOVO PAYMENTS. UNDER NO CIRCUMSTANCES WILL ANY OF THE DISCLAIMING ENTITIES BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF AVNOVO PAYMENTS OR YOUR AVNOVO PAYMENTS ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
AVNOVO, THE DISCLAIMING ENTITIES, AND OUR AFFILIATES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY: (I) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF AVNOVO PAYMENTS; (II) UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH AVNOVO PAYMENTS AND/OR ANY AND ALL INFORMATION PERTAINING TO YOU OR YOUR CUSTOMERS STORED THEREIN; (III) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM AVNOVO PAYMENTS; (IV) SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH AVNOVO PAYMENTS; (V) ERRORS, INACCURACIES OR OMISSIONS IN ANY CONTENT OR INFORMATION, FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED, STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH AVNOVO PAYMENTS; AND/OR (VI) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION 6(D), THE DISCLAIMING ENTITIES’ CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES, AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF PROCESSING FEES PAID BY YOU TO AVNOVO FOR USE OF AVNOVO PAYMENTS ONLY DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF AVNOVO OR THE PAYMENT PROCESSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE PROVISIONS OF THIS SECTION 6(D) SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
e. Functionality Limitations
Avnovo Payments is a commercial service intended to be used by business professionals. The service and outputs from the service are not a substitute for professional judgment or independent validation. You are responsible for establishing the adequacy, reliability, accuracy, completeness, and other characteristics of any output of Avnovo Payments, including, without limitation, validating the output through independent sources and obtaining legal, accounting, and other qualified professional advice regarding the use of such output.
7. General Legal Terms
1. Disputes and Choice of Law
You agree that any disputes arising out of or relating to this Agreement or Avnovo Payments shall be resolved in accordance with this Section 7(a).
This Agreement is governed by the laws of the Commonwealth of Massachusetts, except for any security interest created pursuant to Section 4(b), which will be governed by and construed in accordance with the laws of the applicable country, state, province, territory, or other jurisdiction in which such security interest is registered, and in each case without regard to its choice of law provisions to the contrary. The exclusive venue for any actions or claims arising under or related to this Agreement shall be a court of competent jurisdiction in Boston, Massachusetts.
Avnovo may, or may direct the Payment Processor to, respond to and comply with any subpoena, warrant, or other legal order (“Legal Process”) that we reasonably believe to be valid. The Payment Processor or any applicable Financial Services Provider may deliver or hold any funds or any data as required under such Legal Process, even if you are receiving funds or data on behalf of other parties. Where permitted by law, we will make reasonable efforts to provide you notice of such Legal Process by sending a copy to the email address we have on file for you. We are not responsible for any losses, whether direct or indirect, that you may incur as a result of our response or compliance with a Legal Process.
Headings are included for convenience only and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that we may have under trade secret, copyright, patent, or other laws. Our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
2. Right to Amend or Addend
We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, change the prices for, or impose conditions on any feature or aspect of Avnovo Payments or software with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice in your Avnovo Payments Account, or any other website maintained or owned by us for the purposes of providing services in terms of this Agreement. Any use of Avnovo Payments after our publication of any such changes shall constitute your acceptance of this Agreement as modified.
3. Assignment and Parties
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without your consent or other restriction.
This Agreement binds you and your respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition), or any permitted assignments.
4. Change of Business or Bankruptcy
You agree to give us at least thirty (30) days prior notification of your intent to change your current product or service types, your business or trade name, or the manner in which you accept payments. You agree to provide us with prompt notification within three (3) days if you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, bankruptcy, or similar action or proceeding initiated by or against you or any of your principals (any of the foregoing, a “Bankruptcy Proceeding”). You also agree to promptly notify us within three (3) days of any adverse change in your financial condition, any planned or anticipated liquidation or substantial change in the basic nature of your business, any transfer or sale of twenty-five percent (25%) or more of your total assets, or any change in the control or ownership of your or your parent entity. You will also notify us within three (3) days of any judgment, writ, warrant of attachment or execution, or levy against twenty-five percent (25%) or more of your total assets.
You will include us on the list and matrix of creditors as filed with any bankruptcy, commercial or civil court in connection with any Bankruptcy Proceeding, whether or not a claim may exist at the time of filing. Failure to do so will be cause for immediate termination of this Agreement and shall allow the pursuit of any other action available to us under the applicable Payment Network Rules, equity, or law.
Sections 2, 4, 5, 6, and 7 of this Agreement shall survive termination of this Agreement.
6. Third-Party Services and Links to Other Web Sites
7. Force Majeure
No party will be liable for delays in processing or other non-performance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, non-performance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this section will affect or excuse your liabilities and obligations under this Agreement, including, without limitation, for reversals, chargebacks, claims, fines, fees, refunds or unfulfilled products and services.
8. Entire Agreement and Remedies
These terms and conditions, and all policies and procedures that are incorporated herein by reference, constitute the entire agreement between you and Avnovo with respect to the provision of Avnovo Payments. Except as otherwise set out herein, in the event of a conflict between this Agreement and any other Avnovo or Payment Processor agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. Except as expressly provided in this Agreement, these terms describe the entire liability of Avnovo and our vendors and suppliers and sets forth your exclusive remedies with respect to Avnovo Payments and your access and use of Avnovo Payments. If any provision of this Agreement (or portion thereof) is held to be invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
This Agreement has been reviewed by you with the benefit of independent legal counsel to the extent you consider necessary, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the construction or interpretation of this Agreement. The rights conferred upon us in this Agreement are not intended to be exclusive of each other or of any other rights and remedies we may have at law or in equity. Rather, each and every right we may have under this Agreement, at law or in equity, is cumulative and concurrent, and in addition to every other right.
This Agreement may be available in languages other than English. To the extent of any inconsistencies or conflicts between the English version of this Agreement and the version of this Agreement available in another language, the most current English version of this Agreement will prevail.