AGREEMENT BETWEEN USER AND ABELLA

Master Service Agreement (MSA)

These Abella Services Terms and Conditions govern access to and use of Abella Services (as defined in Section 1) by you the Customer, as well as any individual or entity (including employees, agents, customers and contractors) you allow to access and use the Abella Services. These Terms and Conditions, your Subscription Plan and any applicable Service Schedules and attachments form your agreement (collectively the “Agreement”) with Abella and govern the use of Abella Services. As a condition of accessing the Abella Services, you accept this Agreement.  Specific services terms, product details and any applicable license and/or subscription terms will be set forth below in the applicable Service Schedule(s), which will apply to use of the Abella Services subject to this Agreement. 

This Agreement constitutes a binding legal agreement between you and Abella, a brand of Comprehensive Finance, Inc. (“Abella,” “we,” “us,” and “our”). Please read these terms carefully and print a copy for reference.  BY ACCESSING OR OTHERWISE USING THE ABELLA SERVICES OR SYSTEM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE ABELLA SYSTEM OR ABELLA SERVICES.  THIS AGREEMENT IS A LEGAL AGREEMENT CONCERNING THE ABELLA SERVICES BETWEEN YOU AND ABELLA. THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH ABELLA RELATING TO THE ABELLA SERVICES.  IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT PERMITTED OR AUTHORIZED TO USE THE ABELLA SERVICES. 

If you are a direct competitor to Abella, you may not access or use the Abella Services without Abella’s explicit, advance, written consent, and then only for the purposes authorized in writing.

You agree to receive electronically all communications, agreements, and notices that we provide in connection with any Abella Services (“Communications”), including by e-mail, text, in-app notifications, or by posting them on the Abella web site or through any Abella Services. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such Communications be in writing.

We may modify this Agreement or any additional terms, which are relevant to a particular Abella service, to reflect changes in the law or to the Abella Services.  We will post the revised Agreement on the Site (as defined in Section 1, below) and alert you of such updated Terms via the Site.  IF YOU CONTINUE TO USE THE ABELLA SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED AGREEMENT.  You agree that we shall not be liable to you or to any third party for any modification of the Agreement. 

1.     DEFINITIONS

1.1.    “Abella AutoPay” means the Abella Service’s process for collecting payments against Abella e-Invoices in accordance with the Abella AutoPay Terms and Conditions.

1.2.    “Abella e-Invoice” means the on-demand electronic invoice Abella Service, which generates custom branded e-forms for billing purposes.

1.3.     “Abella Messenger” means the electronic communications performed by the Abella System.

1.4.    “Abella Payouts” means the Abella Service’s process for disbursing funds to Abella Customer that were collected on behalf of the Abella Customer.

1.5.    “Abella Pricing” means all pricing and fees related to Abella Services.

1.6.    “Abella Services” means the electronic invoicing and billing services that can be accessed on the Site by Customer pursuant to the Agreement.

1.7.     “Account” means a unique account established by Customer to enable its Authorized Users to access and use the Abella Services.

1.8.    “Authorized User” means one individual natural person, whether an employee, business partner, contractor or agent of Customer who is registered by Customer to use the Abella Services. An Authorized User must be identified by a unique email address and user name and two or more persons may not use the Abella Services as the same Authorized User. If the Authorized User is not an employee of Customer, use of the Abella Services will be allowed only if the user is under confidentiality and other obligations with Customer at least as restrictive as those in this Agreement, and is accessing or using the Abella Services solely to support Customer’s internal business purposes.

1.9.    “Customer” means the individual or entity that purchases a Subscription Plan, creates an Account, accepts this Agreement (whether on behalf of itself or a legal entity) and is responsible for ensuring that Authorized Users comply with this Agreement.  Customer may be referred to in this Agreement as “you” and “your.”

1.10. “Customer Data” means any data, content, code, video, images or other materials of any type that you input into the Abella system. You will retain all right, title and interest in and to Your Data in the form provided to Abella. Subject to the terms of this Agreement, you hereby grant to Abella a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of your Data. Abella may also access your account or instance in order to respond to your support requests.

1.11. “Documentation” means Abella’s then-current technical and functional documentation for the Abella Services as made generally available by Abella.

1.12.  “eDocument” refers to a contract, notice, disclosure, or other record or document deposited into the Abella Services by Customer for processing.

1.13. “Service Schedule” means the service-specific terms and conditions applicable to a particular Abella service, including Abella’s exhibits and attachments accompanying such schedule.    

1.14. “Site” means the web site of Abella located at Abellaar.com, and other select domains owned by Abella.

1.15. “Subscription Plan” means a paid plan offered on the Site that enables registration of an Account for the use of an Abella Service.  Each discrete Subscription Plan includes restrictions and requirements that outline the features that Customer will be able to access.

1.16. “Subscription Term” means the period of effectiveness of the Subscription Plan, as specified in Section 7 below.

1.17. “System” refers to the software systems and programs, the communication and network facilities, and the hardware and equipment used by Abella or its agents to provide the Abella services.

1.18. “Term” means the period of effectiveness of this Agreement, as specified in Section 6 below.

1.19. “Third Party Offerings” means certain software or services delivered or performed by third parties that are required for the operation of the System, or other online, web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, that interoperate with the System.

2.     USAGE AND ACCESS RIGHTS

2.1.    Right to Use.  Subject to the terms and conditions of this Agreement, Abella will provide the Abella Services in accordance with your Subscription Plan and Abella grants to you a limited non-exclusive, non-transferrable, revocable right during the Term, solely for your internal business purposes and in accordance with the Documentation, to: (a) use the Abella Services and allow your Authorized Users to use the Abella Services; and (b) access and use the Documentation.

2.2.    Restrictions.  You shall not, and shall not permit others, to do the following with respect to the Abella Services:

a.      use the Abella Services or allow access to it in a manner that circumvents contractual usage restrictions or that exceeds your authorized use or usage metrics set forth in this Agreement or your Subscription Plan;

b.     license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the Abella Services or Documentation available for access by third parties except as otherwise expressly provided in this Agreement;

c.      access or use the Abella Services or Documentation for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Abella Services or allow access by a direct competitor of Abella;

d.     reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the Abella Services or technologies except as expressly permitted elsewhere in this agreement or by law, unless and then only to the extent permitted by applicable law without consent;

e.     use the Abella Services or Documentation in a way that (i) violates or infringes upon the rights of a third party, including those pertaining to contract, intellectual property, privacy or publicity; or (ii) effects or facilitates the storage or transmission of libelous, tortious or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene; or 

f.      interfere with or disrupt the integrity, operation or performance of the Abella Services or interfere with the use or enjoyment of it by others by, among other things, using it to create, use, send, store or run viruses or other harmful computer code, files, scripts, agents or other programs or circumvent or disclose the user authentication or security of the Abella Services or any host, network, or account related thereto or use any aspect of the Abella Services other than those specifically identified on the Site for a Subscription Plan.

2.3.    Suspension of Access.  Abella may temporarily suspend the Customer’s, or its Authorized Users’ access to the Services in the event that either the Customer or any of its Authorized Users is engaged in, or Abella in good faith suspects the Customer or any of its Authorized Users is engaged in, any unauthorized conduct (including, but not limited to any violation of this Agreement). Abella will attempt to contact the Customer prior to or contemporaneously with such suspension; provided, however, that Abella’s exercise of the suspension rights herein shall not be conditioned upon the Customer’s receipt of any notification. A suspension may take effect for the Customer’s entire account and the Customer understands that such suspension would therefore include its Authorized User sub-accounts. The Customer agrees that Abella shall not be liable to the Customer, any of its Authorized Users, or any other third party if Abella exercises its suspension rights as permitted by this Section.  Upon determining that the Customer has ceased the unauthorized conduct leading to the temporary suspension to Abella’s reasonable satisfaction, Abella shall reinstate the Customer’s and its Authorized Users’ access and use of the Abella Services.  Notwithstanding anything in this Section to the contrary, Abella’s suspension of Abella Services is in addition to any other remedies that Abella have under this Agreement or otherwise, including but not limited to termination of this Agreement for cause.  Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Abella may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.

2.4.    Beta Services.

a.      From time to time, Abella may offer services identified as beta, pilot, developer preview, non-production, evaluation or by a description of similar import (“Beta Services”). Beta Services: (a) are provided only for evaluation purposes; (b) may not be relied on by Customer for production use; (c) may not be supported; and (d) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available.  Customer understands that the key objective for the beta program is for Abella to obtain feedback on the performance of the Beta Services. Customer will utilize the Beta Services in its day to day business environment and will provide clear and substantive feedback to Abella’s designated representative relating to the performance, features, functions and availability of the Beta Services, errors, problems or difficulties, suggestions for improvement and Customer’s overall experience with the Beta Services.  Abella may discontinue Beta Services at any time in its sole discretion and may never make Beta Services generally available.

b.     ALL BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. BETA SERVICES MAY BE TERMINATED AT ANY TIME. CUSTOMER DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO CUSTOMER DATA. ANY CONFIGURATIONS OR CUSTOMER DATA ENTERED INTO BETA SERVICES, AND ANY CUSTOMIZATIONS MADE TO BETA SERVICES BY OR FOR USERS, MAY BE PERMANENTLY LOST IF THE BETA SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED. 

2.5.    Authorized Users.  Subject to the terms and conditions herein, Customer may permit any Authorized Users to access and use the features and functions of the Abella System or Abella Services.  Customer will ensure that any such Authorized User will be bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for Abella’s Confidential Information and the System as are provided by the terms hereof.

2.6.    Use of Third Party Offerings.  Abella or third parties may from time to time make Third Party Offerings available to Customer.  Any acquisition by Customer of any such Third Party Offerings, and any exchange of data between Customer and any provider of a Third Party Offering, is solely between Customer and the applicable provider of the Third Party Offering.  Customer does not warrant or support any Third Party Offering, whether or not they are designated by Abella as “certified” or otherwise.  If the Customer installs or enables any Third Party Offering for use with the Abella Services, Customer acknowledges that Abella may allow providers of that Third Party Offering to access Customer Data as required for the interoperation and support of such Third Party Offering with the Abella Services.  Abella shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by the providers of Third Party Offerings. 

2.7.    Integration with Third Party Offerings.  The Abella Services may contain features designed to interoperate with Third Party Offerings. To use such features, the Customer may be required to obtain access to such Third Party Offering from their providers.  If the provider of any Third Party Offering ceases to make the Third Party Offering available for interoperation with the corresponding Abella Service features on reasonable terms, Abella may cease providing such features without entitling the Customer to any refund, credit, or other compensation.

2.8.    Third Party Hosting.  Abella may use the services of one or more third parties to deliver any part of the Abella Services.  Abella will pass-through any warranties to the extent that Abella receives any from its then current third-party service provider that it can provide to the Customer.  The Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to the Customer from time to time.

2.9.    Third Party Content.  We may provide, or third parties may provide, links to other third-party web sites or resources that are beyond our control.  We make no representations as to the quality, suitability, functionality, or legality of any sites to which links may be provided, and you hereby waive any claim you might have against us with respect to such sites.  ABELLA IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE.  Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner.  You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party web sites or resources on the Site.

3.     OWNERSHIP

3.1.    Customer Data.  As between Abella and Customer, all right, title and interest in (a) the Customer Data, (b) other information input into the Abella Services by Customer (collectively, “Other Information”) and (c) all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Customer.  Customer hereby grants to Abella a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Abella to provide the Abella Services to Customer, and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Customer Data and Other Information as a part of the Aggregated Statistics (as defined in Section 3.3 below).  To the extent that receipt of the Customer Data requires Abella to utilize any account information from a third party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and Abella hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in this Agreement. As between Customer and Abella, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.

3.2.    Abella Services.  As between Abella and Customer, all right, title and interest in the Abella Services, including without limitation the System, and any other Abella materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding Abella, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Abella or Abella’s licensors and providers, as applicable.  Customer hereby does and will irrevocably assign to Abella all evaluations, ideas, feedback and suggestions made by Customer to Abella regarding the Abella Services (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.

3.3.    Aggregated Statistics.  Notwithstanding anything else in this Agreement or otherwise, Abella may monitor Customer’s use of the Abella Services and use data and information related to such use, Customer Data, and Other Information in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Abella Services (“Aggregated Statistics”).  As between Customer and Abella all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Abella.  Customer acknowledges that Abella will be compiling Aggregated Statistics based on Customer Data, Other Information, and information input by other customers into the Services and Customer agrees that Abella may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information. 

4.     PASSWORDS, PERSONAL DATA AND DATA PROTECTION

4.1.    Passwords.  Abella will issue to the Customer user logins and passwords for each of their Authorized Users authorized to access and use the Abella Services.  Customer shall be, and shall ensure that each of their Authorized Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued.  The Customer is solely responsible for any and all access and use of the Abella Services that occurs using logins and passwords Abella issues to the Customer and its Authorized Users.  Customer shall restrict its Users from sharing passwords.  Customer agrees to immediately notify Abella of any unauthorized use of any account or login and password issued to the Customer or to its Authorized Users, or any other breach of security known to the Customer.  Abella shall have no liability for any loss or damage arising from the Customer’s failure to comply with the terms set forth in this Section.

4.2.    Personal Data.  You warrant that your collection and use of any personal data contained in Customer Data complies with all applicable data privacy and protection laws, rules, and regulations.  You authorize Abella to process such personal data in accordance with the applicable data protection laws, rules, and regulations.

4.3.    Privacy.  You consent to Abella’s collection, use and disclosure of Customer Data (including without limitation personal data pertaining to You or that you provide, such as regarding signers or room participants) as described in the Abella Privacy Policy which describes, among other things, the use of Customer Data to monitor and enforce compliance with Subscription Plans and this Agreement.

4.4.    No Circumvention of Security.  Neither the Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the Abella Services.  The Customer will immediately notify Abella of any breach, or attempted breach, of security known to the Customer. 

4.5.    Security. Abella will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data.  Notwithstanding the foregoing, the Customer acknowledges that, notwithstanding any security precautions deployed by Abella, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Abella Services and the Customer Data.  Abella cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.   

5.     CUSTOMER OBLIGATIONS

5.1.    System.  Customer is responsible for (a) obtaining, deploying and maintaining the System, and all computer hardware, software, modems, routers and other communications equipment necessary for the Customer and its Authorized Users to access and use the Abella Services via the Internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Services via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing.  Except as specifically set forth in this Agreement, Abella shall not be responsible for supplying any hardware, software or other equipment to the Customer.

5.2.    Acceptable Use Policy.  The Customer shall be solely responsible for its actions and the actions of its Authorized Users while using the Abella Services.  The Customer acknowledges and agrees:  (a) to abide by all local, state, national, and international laws and regulations applicable to Customers’ use of the Abella Services, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to the Abella Services which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain malicious code or data that may damage the operation of the Abella Services or another's computer or mobile device; (d) not to upload in any way any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act, or an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (e) not to use the Abella Services for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to the Abella Services or interfere with other ability to access or use the Abella Services; (g) not to distribute, promote or transmit through the Abella Services any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not to interfere with another customer’s use and enjoyment of the Abella Services or another person or entity's use and enjoyment of similar services; (j) not to use the Abella Services in any manner that impairs the Abella Services, including without limitation the servers and networks on which the Abella Services are provided; (k) to comply with all regulations, policies and procedures of networks connected to the Abella Services and Abella’s service providers; and (l) to use the Abella Services only in accordance with the Documentation.  The Customer acknowledges and agrees that Abella neither endorses the contents of any Customer communications or Customer Data nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby.  Abella may remove any violating content posted or stored using the Abella Services or transmitted through the Abella Services, without notice to the Customer.  Notwithstanding the foregoing, Abella does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Data or any other information or data input into or stored in the Abella Services for completeness, integrity, quality, accuracy or otherwise.  The Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data input into the Abella Services.  Abella reserves the right to amend, alter, or modify the Customer’s conduct requirements as set forth in this Agreement at any time.  Abella will deliver notice of such updated requirements to the Customer via e-mail or through the Abella Services.  The Customer’s continued access to and use of the Abella Services following issuance of such updated Customer requirements shall constitute the Customer’s acceptance thereof.  Abella may upon written notice to the Customer amend this Section 5.2.

5.3.    Accuracy of the Customer’s Contact Information; Email Notices; W2. The Customer agrees to provide accurate, current and complete information as necessary for Abella to communicate with the Customer from time to time regarding the Abella Services, issue invoices or accept payment, or contact the Customer for other account-related purposes. The Customer agrees to provide Abella with a W2 and to keep the same updated for the Term of this Agreement. The Customer further agrees to provide the requested payment and banking information to allow Abella to both charge the fees set forth herein and to allow Abella to provide the Abella Services. The Customer agrees to keep any online account information current and inform Abella of any changes in the Customer’s legal business name, address, email address and phone number. The Customer agrees to accept emails from Abella at the e-mail addresses specified by its Authorized Users for login purposes. In addition, the Customer agrees that Abella may rely and act on all information and instructions provided to Abella by Authorized Users from the above-specified e-mail address.

5.4.    Utilization of Credit Reporting Option and Borrower Information. The Customer acknowledges that the System provides the Customer with summarized information relative to the credit condition of a prospective patient to assist the Customer in making a decision as to whether or not the Customer wishes to extend credit to that individual. This information is an estimation of creditworthiness based upon the compilation and analysis of the patient’s current available credit history. Due to the Customer having access to this information, the Customer must agree to the following practices in order to accommodate applicable Federal Regulations in regard to obtaining consumer credit information and retaining sensitive consumer information. The Customer agrees and acknowledges that it shall :  (a) not disseminate, release or resell consumer credit information to any outside party;  (b) not use the information gathered for credit reports outside of the course of normal business and determining patient creditworthiness; (c) not request a credit report without the patient’s express written permission; (d) cooperate with any investigations performed by Abella or its designated Credit Bureau in regard to the actual or suspected misuse, misappropriation or infringement of credit or other consumer information; (e) immediately report any detected or suspected inappropriate or unauthorized use of the System and or credit reports to Abella; (f) prior to accepting an application for credit or initiating a credit report, inspect one or more forms of identification, one of which should be a government- issued photo ID, from the patient in order to insure the proper identity of the individual is that of the designated applicant; (g)immediately disable user names and passwords for any  terminated, reassigned or suspended employee with System access;  (h) ensure that any consumer information retained outside the System, either electronically or in paper copy, is stored securely; (i) instruct Authorized Users of the System that credit reports cannot be initiated under any circumstances for anyone other than a patient who has provided their permission in writing and not for themselves, or any other person or employee; (j) not accept applications for credit by mail or over the telephone; (k) read and become familiar with the terms of the Fair Credit Reporting Act, as amended by the Consumer Credit Reporting Reform Act of 1996 (FCRA), which is available on the Federal Trade Commission’s Website at www.ftc.gov/credit; (l) retain all credit applications and, if applicable, purchase and credit documents for a minimum of 25 months; (m) not use the information provided under this Agreement for an “adverse action” as defined in FCRA unless the reason codes are delivered along with any scores delivered to the patient; and (n) comply with all federal, state and local laws, including but not limited to FCRA.

6.     FEES AND PAYMENT TERMS

6.1.    The prices, features, and options of the Abella Services depend on the Subscription Plan you select as well as any changes instigated by you. Abella does not warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without notice.

6.2.    You will timely pay Abella all fees associated with your Subscription Plan, Account or use of the Abella Services, including, but without limitation, by Authorized Users.  Your payments are non-refundable except as expressly provided in this Agreement.  Charges for pre-paid Subscription Plans will be billed to you in advance.  Charges for per-use purchases and standard Subscription Plan charges will be billed in arrears.

6.3.    Recurring Charges. When you purchase a Subscription Plan, you must provide accurate and complete information for a valid payment method, such as a credit card or bank account, that you are authorized to use.  You must promptly notify us of any change in your invoicing address and must update your Account with any changes related to your payment method.  BY COMPLETING YOUR REGISTRATION FOR A SUBSCRIPTION PLAN, YOU AUTHORIZE ABELLA OR ITS AGENT TO CHARGE YOUR PAYMENT METHOD ON A RECURRING (E.G. MONTHLY OR YEARLY) BASIS (“AUTHORIZATION”) FOR (a) THE APPLICABLE SUBSCRIPTION PLAN CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH YOUR USE OF THE ABELLA SERVICES. The Authorization continues through your Subscription Term and any Renewal Term (as defined in Section 7.2, below) until you cancel as set forth in Section 7 of this Agreement.   

6.4.    Late Fees & Collection Costs.  If Abella does not receive payment from your payment method, you agree to pay all amounts due upon demand.  Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid.  You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Abella to collect any amount that is not paid when due.  Abella may accept payment in any amount without prejudice to Abella’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to Abella may not be withheld or offset by you for any reason against amounts due or asserted to be due to you from Abella.

6.5.    Invoices.  Abella will provide billing and usage information in a format we choose, which may change from time to time.  Abella reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment.  You agree to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice.  If you do not bring such problems/discrepancies to our attention within thirty (30) days, you agree to waive your right to dispute such problems or discrepancies.

6.6.    Billing Cycles.  Billing cycle end dates may change from time to time.  When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations. You agree that we may (at our option) accumulate charges incurred during a billing cycle and submit them as one or more aggregate charges during or at the end of a cycle, and that we may delay obtaining authorization or payment from your payment card issuer until submission of the accumulated charge(s). 

6.7.    Benefit Programs.  You may receive or be eligible for certain pricing structures, discounts, features, promotions, and other benefits (collectively, "Benefits") through a business or government agreement with us (a "Business Agreement").  Any and all such Benefits are provided to you solely as a result of the corresponding Business Agreement and such Benefits may be modified or terminated without notice.  If you use the Abella Services and a business or government entity pays your charges or is otherwise liable for the charges, you authorize us to share your account information with that entity and/or its authorized agents.  If you are enrolled in a Subscription Plan or receive certain Benefits tied to a Business Agreement with us, but you are liable for your own charges, then you authorize us to share enough account information to verify your continuing eligibility for those Benefits and the Subscription Plan.

6.8.    Tax Responsibility. All payments required by this Agreement are stated exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon, excluding taxes based on Abella’s net income (collectively, “Taxes”). You shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the Abella Services. Taxes shall not be deducted from the payments to Abella, except as required by law, in which case you shall increase the amount payable as necessary so that after making all required deductions and withholdings, Abella receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. You hereby confirm that Abella can rely on the name and address set forth in your registration for a Subscription Plan as being the place of supply for sales tax purposes. Abella’s and your obligations under this Section 6.8 (Tax Responsibility) shall survive the termination or expiration of this Agreement.

7.     TERM AND TERMINATION

7.1.    Term. The Term of this Agreement begins on the date you accept it and continues on a monthly basis for three years or until you until you terminate your Account in accordance with this Section 7.3.

7.2.    Subscription Term and Automatic Renewals. Our Subscription Plans are for three years.  If you purchase a Subscription Plan it will automatically renew, unless, prior to the end of the current Subscription Term: (a) you terminate your Account; (b) you set your Account to not auto-renew; (c) Abella declines to renew your Subscription Plan, or (d) this Agreement is otherwise properly terminated as expressly permitted herein.  Each renewal period is a “Renewal Term.”  You authorize us to collect the then-applicable fees and any taxes for a Renewal Term. Subscription Plan fees and features may change over time and we may recommend a new Subscription Plan that is comparable to your previous Subscription Plan that is ending.  If you accept the new Subscription Plan, its terms and conditions with this Agreement will apply in the Renewal Term and thereafter.

7.3.    Termination by Customer.  You may terminate your Account if Abella commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from you or such other period as the parties may agree.  If you wish to terminate, you must provide notice by email at support@Abellaar.com.  If you have active payment plan(s) in the Abella System, you will continue to pay the fees associated with your subscription plan until the there are no active payment plans. Abella has no obligation to consider refund requests related to a termination of a Subscription Plan.

7.4.    Default; Termination by Abella.  You will be in default of this Agreement if: (a) you fail to timely pay any amount owed to us or an affiliate of ours; (b) you or an Authorized User associated with your Account breach any provision of this Agreement or violate any published policy applicable to the Abella Services; (c) you are or become subject to any proceeding under the Bankruptcy Code or similar laws; or (d) if, in our sole discretion, we believe that continued use of the Abella Services by you (or your Authorized Users) creates legal risk for Abella or presents a threat to the security of the Abella Services or Abella’s customers.  If you are in default, we may, without notice to you: (a) suspend your Account and use of the Abella Services; (b) withhold refunds and terminate your Account; (c) charge reactivation fees in order to reactivate your Account; and (d) pursue any other remedy available to us. 

7.5.    Effect of Termination.  If this Agreement expires or is terminated for any reason: (a) you will pay to Abella any amounts that have accrued before, and remain unpaid, as of the date of the termination or expiration, including those for the billing cycle in which termination occurs; (b) any and all of your liabilities to Abella that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to you with respect to the Abella Services and intellectual property will immediately terminate; (d) Abella’s obligation to provide any further services to you under this Agreement will immediately terminate, except any such services that are expressly to be provided following expiration or termination of this Agreement; and (e) the provisions of Sections 2.2, 2.3, 3, 5.2, 5.4, 6.8, 7.5, 8.2, 9, 10, 11, and 12 will survive, as well as provisions designated to survive under any Service Schedules and accompanying attachments and Exhibits to the Agreement. 

8.     WARRANTIES AND DISCLAIMERS

8.1.    Customer Warranties.  You hereby represent and warrant to Abella that: (a) you have all requisite rights and authority to use the Abella Services under this Agreement and to grant all applicable rights herein; (b) you are responsible for all use of the Abella Services associated with your Account; (c) you are solely responsible for maintaining the confidentiality of your Account names and password(s); (d) you agree to immediately notify us of any unauthorized use of your Account of which you become aware; (e) you agree that Abella will not be liable for any losses incurred as a result of a third party's use of your Account, regardless of whether such use is with or without your knowledge and consent; (f) you will use the Abella Services for lawful purposes only and subject to this Agreement; (g) any information you submit to Abella is true, accurate, and correct; and (h) you will not attempt to gain unauthorized access to the System or the Abella Services, other accounts, computer systems, or networks under the control or responsibility of Abella through hacking, cracking, password mining, scripting or any other unauthorized means.

8.2.    Disclaimer.  THE ABELLA SERVICES, DOCUMENTATION, AND THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND ABELLA: (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NON-INFRINGMENT AND TITLE; AND (c) DOES NOT WARRANT THAT THE ABELLA SERVICES, DOCUMENTATION OR SITE ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE.  YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THE USE OF THE ABELLA SERVICES, DOCUMENTATION OR SITE.  YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF ABELLA TO ANY THIRD PARTY.  USE OF THE ABELLA SERVICES, SYSTEM, DOCUMENTATION AND SITE ARE AT YOUR SOLE RISK. Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to you.  In that event, such warranties are limited to the maximum extent permitted by, and for the minimum warranty period allowed by the mandatory applicable law. 

9.     CUSTOMER INDEMNIFICATION OBLIGATIONS

You will defend, indemnify, and hold us, our affiliates, officers, directors, employees, suppliers, consultants, and agents (“Indemnified Parties”) harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys' fees) (“Third-Party Claim”) arising from or related to: (a) use of the Abella Services or System by you or your Authorized Users; (b) violation of this Agreement by you or your Authorized Users; (c) infringement of any intellectual property or other right of any person or entity by you or your Authorized Users; or (d) the nature and content of all Customer Data processed by the Abella Services or System; or (e) a claim or threat that the Customer Data or Customer’s system (and the exercise by Abella of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights.  Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the Indemnified Parties from any such Third-Party Claim, provided that Customer will not settle any third-party claim against Abella unless such settlement completely and forever releases Abella from all liability with respect to such claim or unless Abella consents to such settlement,.  Abella may, at its own expense, engage separate counsel to advise Abella regarding a Third-Party Claim and to participate in the defense of the claim. 

10.   LIMITATIONS OF LIABILITY

10.1. Disclaimers.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ABELLA WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY LOST PROFITS, CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.  ABELLA’S LIABILITY TO CUSTOMER OR ANY THIRD PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF (i) THE AMOUNT OF FEES PAID TO ABELLA HEREUNDER BY CUSTOMER DURING THE THIRTY (30) DAYS PRECEDING THE DATE THE CLAIM ARISES OR (ii) ONE HUNDRED DOLLARS ($100). CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 10.1, (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

10.2. Independent Allocations of Risk.  Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the parties.  This allocation is reflected in the pricing offered by Abella to you and is an essential element of the basis of the bargain between the parties.  Each of these provisions is severable and independent of all other provisions of this Agreement, and each of these provisions will apply even if the warranties in this Agreement have failed of their essential purpose.

10.3. Jurisdictional Limitations. Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to you.  In that event, such exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law (and our liability shall be limited or excluded as permitted under mandatory applicable law). 

11.   CONFIDENTIALITY

11.1. “Confidential Information” means any trade secrets or other information of Abella, whether of a technical, business, or other nature (such as Abella's software), that is disclosed to the other party (the “Recipient”) and that is marked “confidential,” or, whether or not marked, that a reasonable person would understand to be confidential given the circumstances of the disclosure.  Confidential Information includes the terms and conditions of this Agreement, as well as pricing plans or discounts, and the features and functionality of the Abella Services.  Confidential Information does not include any information that: (a) was known to Recipient before receiving it from the disclosing party; (b) is independently developed by Recipient without use of or reference to any Confidential Information of the other party; (c) is acquired by Recipient from another source that did not receive it in confidence from the other party to this Agreement; or (d) is or becomes part of the public domain through no fault or action of Recipient.

11.2. Restricted Use and Nondisclosure.  During and after the Subscription Term, Recipient will: (a) use the Confidential Information of the other party only for purposes that are within the scope of this Agreement; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its attorneys, auditors, consultants and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.  Notwithstanding the foregoing, Customer expressly authorizes Abella to use and process Customer Data as described in the Abella Privacy Policy, which provides for, but is not limited to, delivering electronic documents as indicated by your use of the Abella Services.

11.3. Required Disclosure.  If Recipient is required by law to disclose Confidential Information of the other party or the terms of this Agreement, Recipient will give prompt written notice to the other party before making the disclosure, unless prohibited from doing so by the legal or administrative process and assist the disclosing party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.

11.4. Ownership.  Recipient acknowledges that, as between the parties, all Confidential Information it receives from the disclosing party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing party.  Nothing in this Agreement grants Recipient any right, title or interest in or to any of the disclosing party’s Confidential Information.  Recipient’s incorporation of the disclosing party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.

11.5. Remedies.  Recipient acknowledges that any actual or threatened breach of this Section 11 may cause irreparable, non-monetary injury to the disclosing party, the extent of which may be difficult to ascertain.  Accordingly, the disclosing party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches.  Absent written consent of the disclosing party to the disclosure, the Recipient, in the case of a breach of this Section 10, has the burden of proving that the disclosing party’s Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section 11. 

12.   GENERAL    

12.1. Relationship.  At all times, the parties are independent contractors, and are not the agents or representatives of the other.  This Agreement is not intended to create a joint venture, partnership, or franchise relationship between the parties.  Non-parties do not benefit from and cannot enforce this Agreement.  There are no third-party beneficiaries to this Agreement.  You must not represent to anyone that you are an agent of Abella or is otherwise authorized to bind or commit Abella in any way without Abella’s prior written authorization.

12.2. Assignability.  You may not assign your rights or obligations under this Agreement without Abella’s prior written consent.  If consent is given, this Agreement will bind your successors and assigns.  Any attempt by you to transfer your rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.  Abella may freely assign its rights, duties, and obligations under this Agreement.

12.3. Notices.  Except as otherwise permitted by this Agreement, any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) Abella Services; (b) by certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth in your registration information or on the Site for Abella, with a copy, in the case of Abella, to support@Abella.com.  Either party may change its address for receipt of notice by notice to the other party through a notice provided in accordance with this Section 12.  Notices are deemed given upon receipt if delivered using Abella Services, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.

12.4. Force Majeure.  Except for any payment obligations, neither party will be liable for failure to perform any obligation under this Agreement to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike and other causes beyond the party’s reasonable control).  The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable.  Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.

12.5. Waiver of Class Actions. No Class Actions.  ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND MAY NOT BE CONSOLIDATED WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY AND CANNOT BE BROUGHT AS A CLASS ACTION OR ON A REPRESENTATIVE BASIS. You acknowledge and agree that you and Abella are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and Abella otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If a court decides that this subsection is not enforceable or valid, the remainder of this Agreement will still apply.

12.6. Governing Law & Venue.  This Agreement shall be governed and construed under and in accordance with the laws of the State of Texas, and all obligations of the Parties, created in this Agreement are performable in Hood County, Texas, and the Parties agree that venue shall be exclusively in the 355th Judicial District Court in Hood County, Texas.

12.7. Waiver.  The waiver by either party of any breach of any provision of this Agreement does not waive any other breach.  The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

12.8. Severability.  If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.  If any material limitation or restriction on the grant of any license to you under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.

12.9. Entire Agreement.  This Agreement, which includes the language and paragraphs preceding Section 1, is the final, complete, and exclusive expression of the agreement between these parties regarding the Abella Service(s) provided under this Agreement.  This Agreement supersedes, and the parties disclaim any reliance on previous oral and written communications (including any confidentiality agreements pertaining to the Abella Service(s) under this Agreement) with respect to the subject matter hereof and apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Abella hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer and conditions assent solely based on the terms and conditions of this Agreement as offered by Abella. Except as explicitly permitted in this Agreement, no modification or amendment of this Agreement shall be effective unless it is in writing and signed by an authorized agent of the party against whom the modification or amendment is being asserted. In the event of an inconsistency or conflict, the order of precedence in descending order of control is as follows: (a) the Subscription Plan; (b) any attachments or appendix(ices) to the Service Schedule(s); (c) the Service Schedule; and (d) these Terms and Conditions.