Terms and Conditions
FUSEBILL SERVICES AGREEMENT
Last Revised – August 11, 2021
THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICE SO SUBSCRIBER SHOULD READ CAREFULLY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AN AGENT OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT: THEY ARE DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT; IN WHICH CASE THE TERM “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THE TERMS HEREIN, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
THIS AGREEMENT IS ACCEPTED BY SUBSCRIBER: (1) USING A FREE TRIAL; OR (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE OF SUBSCRIBER’S ACCEPTANCE (THE “EFFECTIVE DATE”).
AS USED IN THIS AGREEMENT:
“AFFILIATE” MEANS, WITH RESPECT TO A LEGAL ENTITY, ANY ENTITY THAT DIRECTLY OR INDIRECTLY CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH SUCH ENTITY, WHERE CONTROL MEANS DIRECT OR INDIRECT OWNERSHIP OR CONTROL OF MORE THAN 50% OF THE VOTING INTERESTS OF THE SUBJECT ENTITY.
“END USER” MEANS IN THE CASE OF AN INDIVIDUAL ACCEPTING THESE TERMS ON HIS OR HER OWN BEHALF, SUCH INDIVIDUAL, OR IN THE CASE OF AN INDIVIDUAL ACEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, AN INDIVIDUAL WHO IS AUTHORIZED BY SUBSCRIBER TO USE THE SERVICE. END USERS MAY INCLUDE, FOR EXAMPLE, EMPLOYEES CONSULTANTS, CONTRACTORS AND AGENTS OF SUBSCRIBER.
“FUSEBILL RELATED PARTIES” MEANS, FUSEBILL’S AFFILIATE(S), OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS AND/OR SUBCONTRACTORS.
“FUSEBILL PAYMENTS” MEANS FUSEBILL’S PAYMENT PROCESSING SERVICE PROVIDED BY FUSEBILL’S THIRD-PARTY PAYMENT PLATFORM PARTNER.
“ORDER FORM” MEANS AN ORDERING DOCUMENT SPECIFYING THE DETAILS OF THE SERVICE TO BE PROVIDED TO SUBSCRIBER THAT IS SUBJECT TO THE TERMS HEREIN AND IS ENTERED INTO BETWEEN SUBSCRIBER AND FUSEBILL OR ANY OF THEIR AFFILIATES, INCLUDING ANY ADDENDA AND SUPPLEMENTS THERETO.
“SUBSCRIBER” MEANS IN THE CASE OF AN INDIVIDUAL ACCEPTING THIS AGREEMENT ON HIS OR HER OWN BEHALF, SUCH INDIVIDUAL, OR IN THE CASE OF AN INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE COMPANY OR OTHER LEGAL ENTITY FOR WHICH SUCH INDIVIDUAL IS ACCEPTING THIS AGREEMENT, AND AFFILIATES OF THAT COMPANY OR ENTITY (SO LONG AS THEY REMAIN AFFILIATES), WHICH HAVE ENTERED INTO ORDER FORMS.
“SUBSCRIBER DATA” MEANS THE DATA AND INFORMATION SUBSCRIBER UPLOADS AND/OR CREATES WHILE USING THE SERVICE.
- SCOPE OF AGREEMENT
The Service that Fusebill provides to Subscriber is subject to this Agreement. Fusebill may modify this Agreement at any time by publishing a revised Agreement on www.fusebill.com (the “Website”) and/or sending information regarding the revised Agreement to the last email address of Subscriber on file with Fusebill.
The revised Agreement will become effective on the tenth (10th) day following such publication or provision to Subscriber. Subscriber’s express acceptance or continued use of the Service after the expiry of the ten (10) day notice period will constitute Subscriber’s acceptance to be bound by the revised Agreement. The latest version of this Agreement will be available on the Website at https://www.fusebill.com/terms-and-conditions-fusebill.
SUBSCRIBER IS RESPONSIBLE FOR REGULARLY REVIEWING THE WEBSITE TO OBTAIN TIMELY NOTICE OF ANY REVISED AGREEMENTS.
- THE FUSEBILL SERVICE
2.1 How it Works.
Fusebill facilitates invoicing and transaction payments by directing customers of Subscriber to the payment method chosen by Subscriber through Fusebill’s user interface or APIs. Subscriber is responsible for keeping Subscriber Data up to date and Fusebill will have no liability to Subscriber or customers of Subscriber for any issues arising as a result of Subscriber’s failure to do so.
For greater certainty, Subscriber acknowledges and agrees that Fusebill is neither a payment gateway provider nor a bank, and Fusebill will not hold any funds on behalf of Subscriber or Subscriber’s customers. FUSEBILL AND THE FUSEBILL RELATED PARTIES ARE NOT LIABLE TO SUBSCRIBER FOR ANY AMOUNTS DUE TO SUBSCRIBER IN RELATION TO ANY TRANSACTION SUBSCRIBER CONDUCTS THROUGH THE PAYMENT GATEWAY.
2.2 Subscription Types.
2.2.1 Trial Subscription. Fusebill offers a free trial of the Service for initial assessment for a time-limited period (typically 7 days unless otherwise agreed by Fusebill). Subscriber agrees that at the end of the trial subscription period, Subscriber will no longer be able to use the Service unless Subscriber purchases a paid subscription. During any such trial period, the Service (i) is provided “as is” (with no warranty or Support Services, as described below); and (ii) may be subject to limits on use, including, API requests. Unless Subscriber purchases a paid subscription to the Service by the end of the trial period, Subscriber will not be able to access the Subscriber Data stored using the Service during the trial period.
2.2.2 Annual Subscription. Unless otherwise specified on Subscriber’s Order Form, the Service can only be purchased as an annual subscription, as further described below.
- SERVICE TERMS
3.1 Service: Grant of Access and Use Guidelines.
Subject to Subscriber’s compliance with its obligations under the Agreement, Fusebill grants Subscriber a limited, non-exclusive, non-transferrable (except as permitted under Section 12.6 (Assignment)), right to access and use the Service during the subscription term applicable to Subscriber in accordance with the resources and support pages made available to Subscriber, solely for the internal business purposes of Subscriber (the “Permitted Purpose”). Subscriber may permit its End Users to access and use the Service for the Permitted Purpose in accordance with the Agreement.
Fusebill will provide Subscriber with login details enabling access to the Service back-end which includes information, statistics and materials relating to Subscriber’s use of the Service and enabling Subscriber to monitor and print reports including billing statistics for customers of Subscriber.
3.2 Subscriber’s Responsibilities.
Subscriber shall: (a) ensure that any and all use of the Services is in compliance with the resources and support pages made available to Subscriber, the Agreement, and all laws, regulations and governmental or other regulatory bodies’ rules and policies applicable to Subscriber; (b) be responsible for use of the Service by Subscriber and End Users, as applicable, which includes obtaining, maintaining and supporting all Internet access, computer hardware and other services needed for Subscriber to access the Service; (c) provide the information and assistance (if any) specified in the applicable Order Form and/or Statement of Work to enable Fusebill to provide the Service to Subscriber; and (d) be responsible for the use and termination of, and for maintaining the access controls and confidentiality of Subscriber and End User account and log-in credentials and passwords (collectively, “IDs”) and immediately notify Fusebill of any unauthorized use of IDs or any other breach of security relating to the Service known to Subscriber. It is Subscriber’s responsibility to ensure that IDs are not shared or used by more than one End User and Fusebill will not be liable for any activities undertaken by anyone using an End User’s ID. Fusebill reserves the right (in its sole discretion) to change or disable any of the IDs used in connection with the Service where Fusebill suspects (acting reasonably) there has been an attempted or actual security breach or to ensure the security of the Service. In no event will Fusebill be liable to Subscriber or to any third-party (including End Users) for unauthorized use or access to Subscriber Data through Subscriber’s account.
3.3 Professional Services.
Fusebill offers a variety of professional services, including implementation, integration and customization (collectively, the “Professional Services”). Fusebill’s Professional Services obligations to Subscriber are as described in Subscriber’s Order Form and/or Statement of Work, as applicable.
Subscriber may not: (a) modify, translate, reverse engineer, decompile, disassemble or create derivative works based on the Service (or any components of it including Fusebill IP (defined below)); (b) circumvent any user limits or other use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service or its components; or (d) access the Service in order to: (i) build a competitive product or service; (ii) copy any ideas, features, functions or graphics of the Service; or (iii) use the Service for service bureau purposes or otherwise to provide services to any third party. Further, Subscriber shall not, without limitation: (i) use the Service for unlawful purposes or to manage any illegal operations; (ii) use any type of spider, virus, worm, trojan horse, time bomb, trap door or any other harmful or malicious code, file script, agent, program or instruction designed to permit unauthorized access to or to distort, delete or otherwise damage Fusebill’s software, hardware, systems or data; (iii) send any unsolicited commercial communication not permitted by applicable law; (iv) endanger any part of any system (including the Fusebill system) or Internet connection of Fusebill or any third party; (v) load or penetration test the Service; or (vi) attempt to circumvent any security device or feature of the Service.
3.5 Unsolicited Information & Opt-Outs.
The Service may include the provision of communications on behalf of Subscriber to End Users. It is Subscriber’s responsibility to provide End Users with the ability to opt-out of communications provided by Fusebill on Subscriber’s behalf. It is also Subscriber’s responsibility to inform Fusebill promptly if any End Users opt-out of receiving communications. Subscriber’s failure to comply with these responsibilities is prohibited and constitutes a material breach of this Agreement. Fusebill and the Fusebill Related Parties will have no liability whatsoever for any breach of this obligation by Subscriber.
- PROPRIETARY RIGHTS
4.1 Exclusive Ownership.
Any and all intellectual property rights to or arising from the software and technology underlying the Service, the resources and support pages made available to Subscriber, and any concepts, methodology, project briefs, designs or other materials developed or created by Fusebill, including any code, copies, corrections, bug fixes, enhancements, modifications, new versions and derivative works howsoever created (collectively, “Fusebill IP”) are and will remain the exclusive property of Fusebill and its licensors. Nothing in this Agreement intends to transfer any such intellectual property rights to, or to vest any such intellectual property rights in Subscriber. Subscriber is solely entitled to the limited use of the intellectual property rights expressly granted to Subscriber in this Agreement. Any unauthorized use of Fusebill IP is a material breach of this Agreement as well as a violation of intellectual property laws and treaties including, copyright laws and trademark laws. All title and intellectual property rights in and to any third party content that is not contained in the Service, but may be accessed through use of the Service, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. Subscriber acknowledges and agrees that only Fusebill will have the right to maintain, enhance or otherwise modify the Service.
For clarity, Subscriber shall own all right, title and interest in the Subscriber Data, Custom Reports and other materials developed or created by Fusebill specifically for Subscriber as a result of the Professional Services for which Subscriber has received full payment (the “Deliverables”). Fusebill retains all rights, title and interest in and to the Fusebill IP, including any know-how used in or developed as a result of the provision of any Professional Services. Fusebill grants Subscriber a worldwide, perpetual, non-exclusive, non-transferable, royalty-free right to use the Fusebill IP incorporated into any Deliverables for the Permitted Purpose. Except for the limited license provided herein to Subscriber, Subscriber shall have no rights in or to the Fusebill IP.
4.2 Usage Data.
Fusebill monitors and collects data about the use of the Service by all of its subscribers. Fusebill uses this data for its own business purposes (such as improving, testing and maintaining the Service and developing additional products and services). This data does not include or contain any Subscriber Data. Fusebill owns all rights in such data and any algorithm, computational or cumulative results of such data. Fusebill may use such data for any purpose (including, but not limited to, providing the Service, and auditing and improving the Service).
4.3 Privacy; Confidentiality.
4.3.2 Confidentiality. In addition to the confidential treatment of Subscriber Data pursuant to the terms of Section 5, in connection with the use of the Service, including the performance of Professional Services, each party may need to provide the other with certain Confidential Information. For the purposes of this Agreement, “Confidential Information” means any data, documentation, information, property or knowledge of any kind that is marked or identified as confidential or proprietary, or disclosed in circumstances that would lead a reasonable person to believe such information is confidential, including trade secrets, intellectual and industrial property, technology, inventions, business and financial information, source codes, materials, documents, business practices, methods, procedures and processes, strategies, devices, ideas, know-how, concepts, proposals or development, projects, software, computer systems, documentation, data, designs or standards, whether owned or licensed. The receiving party may only use this Confidential Information for the purpose for which it was provided and may only share this Confidential Information with its employees, agents, and representatives who need to know it, provided they are subject to similar confidentiality obligations. The receiving party will use a reasonable degree of care (in a similar way it protects its own confidential information) to protect this Confidential Information and to prevent any unauthorized use or disclosure of this Confidential Information.
4.3.3 Exceptions. Notwithstanding the foregoing, Confidential Information does not include any information that (1) was known by the receiving party (without any confidentiality obligations) prior to disclosure by the disclosing party, (2) is publicly available (through no fault of the receiving party), (3) is rightfully received by the receiving party from a third party (without a duty of confidentiality), or (4) is independently developed by the receiving party (without access to or use of the disclosing party’s Confidential Information). The receiving party may disclose the Confidential Information when compelled to do so by law, so long as the receiving party provides the disclosing party with prior written notice of the disclosure (if legally permitted) to allow the disclosing party the opportunity to seek protection or confidential treatment or to limit or prevent such disclosure. The receiving party also agrees to cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed.
Subscriber agrees that Fusebill has a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into the Service (or other product offerings) any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber relating to the Service.
- SUBSCRIBER DATA
5.1 Subscriber Data.
As between Subscriber and Fusebill, Subscriber owns and is responsible for the accuracy, quality, integrity and legality of the Subscriber Data but access to and retrieval of Subscriber Data is subject to the express terms set out in this Agreement. Subscriber hereby grants (and warrants that Subscriber has the right to grant) to Fusebill and the Fusebill Related Parties and the providers of Third-Party Offerings, as applicable, the right and license to access and use the Subscriber Data to the extent necessary to perform the Service as contemplated by this Agreement.
5.2 Data Security.
Subscriber is responsible for (i) properly configuring the access rights for End Users; and (ii) all access to and use of the Service by End Users. During the term of this Agreement, Fusebill will maintain (i) its PCI Level 1 Certification; and (ii) administrative, technical and physical safeguards that are consistent with industry standards, designed to protect the security, confidentiality and integrity of the Subscriber Data within Subscriber’s Fusebill account; however, Fusebill and the Fusebill Related Parties have no responsibility or liability whatsoever for the deletion, loss, accidental disclosure of, or failure to store, the Subscriber Data, documents and/or other communications maintained or transmitted by the Service. Subscriber acknowledges that Fusebill may change its practices and limitations concerning storage of the Subscriber Data at any time, provided that such changes do not diminish Fusebill’s current Subscriber Data obligations to Subscriber. Fusebill will promptly notify Subscriber of any actual or suspected breaches of security that may result in the unauthorized access, use or disclosure of the Subscriber Data and will cooperate with Subscriber in the investigation and remediation of any such breach of security.
5.3 Data Access and Controls.
Subscriber manages and controls access to the Service by its End Users as well as the use and processing of the Subscriber Data by the Service. Subscriber Data will not be accessed by Fusebill except as necessary (and if necessary, then only by authorized Fusebill personnel) to identify, investigate or resolve technical problems with the Service or to verify Subscriber’s compliance with the terms of this Agreement. Subscriber Data that is accessed by Fusebill will be kept confidential, handled in accordance with the terms of this Agreement, applicable laws and regulations and not shared with any unauthorized personnel or comingled with other data.
5.4 Data Disclosure.
Fusebill may disclose Subscriber Data if the disclosure is necessary to comply with a valid court order or subpoena or to comply with applicable law. Fusebill will promptly notify Subscriber of the request for such disclosure (unless prohibited by such process) and will cooperate with Subscriber if Subscriber chooses to contest the disclosure, seek confidential treatment of the Subscriber Data to be disclosed or limit the nature or scope of the Subscriber Data to be disclosed.
6.1.1 Fee Description. Subject to Section 6.4 (Changes to the Service and Charges),the subscription fee for Subscriber’s access to and use of the Service is based on:
(a) Subscriber’s Revenue Band or
(b) a percentage of the actual net invoiced amounts that Subscriber uses the Service to process (plus a fixed monthly platform fee).
As used in this Agreement, “Revenue Band” refers to the maximum net invoiced amount that Subscriber either (i) self-reports to Fusebill (as of the Effective Date, in respect of the first year of Subscriber’s use of the Service or such other time period as agreed in the applicable Order Form); or (ii) uses the Service to process (in respect of any renewal term(s), as of the anniversary of the Effective Date). If Subscriber’s subscription fee is based on (ii) above, the applicable Revenue Band for each renewal term will be calculated based on the maximum net invoiced amount that Subscriber uses the Service to process during the three (3) month period immediately prior to the anniversary of the Effective Date, times four (4). Should the three (3) month period immediately prior to the anniversary of the Effective Date not accurately reflect Subscriber’s projected net invoiced revenue (due to the number and timing of quarterly and/or annual billings), Fusebill reserves the right to adjust Subscriber’s applicable Revenue Band. For clarity, all Revenue Bands and/or net invoiced amounts are based on Subscriber’s gross billings (i.e. inclusive of any sales or similar taxes applicable to such billings and irrespective of any write-offs or credits that Subscriber may apply).
If Subscriber’s subscription fee is based on (b) above and Subscriber self-reports and/or uses the Service to process net invoiced amount(s) in a currency other than USD, Fusebill will treat all non-USD currencies as USD. For example, if Subscriber uses the Service to process $1M CDN, $1M USD and €1M in a given month, Subscriber’s subscription fee for that month will be based on $3M USD (plus Subscriber’s fixed monthly platform fee).
Subscriber agrees to pay all subscription fees, transaction fees, administrative charges (see Section 6.2), professional services fees and, as applicable, taxes (collectively, “Charges”) for use of the Service in the currency in which Subscriber is billed and according to the applicable payment plan in effect for Subscriber’s country of residence, as specified on the applicable Order Form.
6.1.2 Access. Access to and use of the Service, including all related Professional Services, is subject to Subscriber’s payment of the Charges set out on the applicable Order Form.
6.1.3 Payment Terms. Unless otherwise stated on the applicable Order Form or in this Agreement, (i) subscription fees, professional services fees and taxes (as applicable), are payable in advance as of the Effective Date, either monthly or annually as indicated on the Order Form; and (ii) all invoiced Charges are in U.S. dollars, are due upon receipt, are non-cancelable and once paid, are non-refundable. Unless otherwise specified on the Order Form, late payments (on any undisputed amounts) may be subject to interest charges of 1.0% per month (or the maximum permitted by law, whichever is lower) as well as the expenses associated with Fusebill’s efforts to collect such amounts.
6.1.4 Professional Services: Scheduling and Acceptance. Professional Services includes Implementation, Integration, Customization and Product Feature Commitments. If Subscriber is required to complete certain tasks in order for Fusebill to timely deliver the Professional Services selected by Subscriber, Subscriber agrees to (i) provide a dedicated project manager to facilitate interaction between Fusebill and Subscriber; (ii) provide the necessary technical resources to complete development work that Subscriber may need to undertake, (iii) make decisions and supply documents and other materials as needed; and (iv) promptly approve all deliverables and respond to issues needing resolution. Any failure by Subscriber to act in accordance with (i) – (iv) above, including, excessive stopping and starting of Fusebill’s delivery of the Professional Services, may result in scope and/or fee and/or delivery date changes and gives Fusebill the right to require reimbursement from Subscriber for any incremental costs that it incurs as a result of such failure(s). Unless otherwise specified on the Order Form (or in the applicable Statement of Work, if any), all Professional Services activity will be conducted remotely from Fusebill’s offices in Ottawa, Canada during Fusebill’s normal business hours. Fusebill acknowledges and agrees that no travel or out-of-pocket expenses shall be incurred other than in accordance with this Agreement and/or an executed Statement of Work. If travel is required, Subscriber agrees to reimburse Fusebill for reasonable travel and out-of-pocket expenses incurred by Fusebill representatives in accordance with Fusebill’s then current Travel & Expense Guidelines.
Fusebill shall be deemed to have fulfilled its Professional Services obligations to Subscriber when it accomplishes the activities described in the Order Form and/or Statement of Work, as applicable. Feedback requiring changes to Professional Services deliverables due to non-conformance with the specifications or other requirements set forth in the Order Form and/or Statement of Work must be received in writing by Subscriber’s assigned Fusebill representative within three (3) business days of Subscriber’s receipt of the deliverable at issue, failing which, such deliverable will be deemed accepted. Upon receipt of such notification, Fusebill with work with Subscriber to mutually agree on the required modifications. Deviations from the specification provided by Subscriber to Fusebill that are identified in writing to Fusebill within fifteen (15) days of Subscriber’s receipt will be timely resolved at the expense of Fusebill, provided that such corrective action does not exceed a total of two (2) hours. Unless otherwise agreed by Fusebill, all Professional Services described in the Order Form and/or Statement of Work are to be delivered within one hundred and twenty (120) calendar days of Subscriber’s acceptance of this Agreement, failing which, Fusebill may, in its sole discretion, require Subscriber to forfeit the right to receive such Professional Services. Extensions to this deadline may be requested via a written change order and such requests are subject to Fusebill’s reasonable review and written approval.
Professional Services resources will only be assigned and schedules confirmed upon Subscriber’s acceptance of this Agreement (or a signed Statement of Work, if required). Note that customization services are subject to detailed review upon acceptance of this Agreement, the outcome of which could impact Fusebill’s anticipated delivery date(s). Fusebill therefore reserves the right to change delivery dates associated with Subscriber’s customization services, if any, following acceptance of this Agreement.
Professional Services: Description of Services
In accordance with the terms applicable to Subscriber, as provided in the applicable Order Form , Subscriber agrees and acknowledges that: (a) Professional Service activities that require customization of the Service require a separate Statement of Work (see Customization below); (b) Professional Services do not apply to any free trial of the Service; and (c) additional terms and conditions apply to the following categories of Professional Services:
Implementation – Fusebill will work with Subscriber to define a representative sampling of Subscriber’s product catalog in order to illustrate the Service’s various configuration options (which may or may not comprise Subscriber’s entire catalog). The remaining catalog items will be configured by Subscriber. Subscriber Data import activity, if any, requires (i) a minimum of ten (10) business days’ notice; (ii) confirmation by Fusebill of a confirmed import date (based on Subscriber’s resource availability); and (iii) receipt of Subscriber’s final import file not later than 48 hours before Subscriber’s scheduled import date, in order that Fusebill may validate it for content and format. If the import file delivery date is missed, or if the content or format are not acceptable, Subscriber’s import date reservation may be forfeited and rescheduled by Fusebill at its sole discretion and convenience. Other details regarding the Subscriber Data’s import file format and the applicable submission process are available from Fusebill’s on-line help, available at https://support.fusebill.com/hc/en-us/articles/115004499248-Importing-Your-Customer-Data-Into-Fusebill.
As used in this Agreement and Subscriber’s Order Form and/or Statement of Work (as applicable), “Go-Live Date” means the mutually agreed date on which Subscriber expects to process invoices using the Service. The Go-Live Date will be agreed to by Subscriber and Fusebill. Both parties will use commercially reasonable efforts to meet the Go-Live Date. After the Go-Live Date, Fusebill is under no obligation to continue to import Subscriber Data.
Fusebill will only accept responsibility for delays that affect the Go-Live Date if such delays are the direct result of issues that have been reported to and acknowledged by Fusebill. If applicable, the transfer of End Users’ credit card information from another PCI compliant vendor to Fusebill is Subscriber’s responsibility , as is the responsibility to provide Subscriber Data (including but not limited to customer names and addresses, subscription details, product catalog information, etc.) in a timely manner as mutually agreed during the Implementation planning phase. If Fusebill’s receipt of this information is delayed and Subscriber’s Go-Live Date is negatively impacted as a result, Fusebill reserves the right to enforce the original fee schedule associated with Subscriber’s Professional Services as described in the applicable Order Form and/or Statement of Work. Feature gaps and/or product enhancement requests will only qualify for revised payment terms at Fusebill’s sole discretion.
Custom Reports – A Custom Report is defined as a single export of data from the Fusebill database, consisting of rows and columns in “raw” CSV format, delivered to Subscriber either one time or on a recurring schedule. The number of Custom Reports that Subscriber is entitled to receive depends on Subscriber’s Implementation Services level, as described in Subscriber’s Order Form and/or the applicable Statement of Work. Once the Custom Report has been deployed to the production environment, it will consume one Custom Report entitlement. Subscriber has the ability to run each Custom Report either on demand or as scheduled by Subscriber.
Subscriber is responsible for the following: (i) summarization of the data along various axes; (ii) creation or maintenance of pivot tables or other Excel constructs which can be layered on top of the raw data for analysis. For clarity, requests for the same data with different sorting or filtering parameters each count as a separate Custom Report Request against Subscriber’s allotted total, as do reports created to replace a retired report.
Changes are allowed during the “design” phase of each report. During this phase, Subscriber will work with a Fusebill Support resource to define the content of the file within the constraints listed above and finalize on a format and content. Once finalized, Fusebill will email Subscriber the definition of the Custom Report. Subscriber must respond in email confirming the report definition. Fusebill will then execute the report query and transmit the file to Subscriber based on the parameters described above. Subscriber will have a period of thirty (30) business days in which to validate the receipt of the first Report and confirm that it meets the requirements outlined during the design phase, after which the Custom Report will be deemed acceptable. If applicable, the recurring schedule will then be configured.
Changes to an approved Custom Report Design can be done on request to Fusebill Support ([email protected]). Additional Professional Services fees may apply. Fusebill will notify Subscriber in advance if an additional fee is required and written approval is required prior to proceeding to make any requested changes.
Customization – Customization services require a separate Statement of Work which includes, a detailed Project Plan and Project Assumptions. If an item described in the applicable Statement of Work does not occur in the manner or time frame specified or is altered during the course of Fusebill’s delivery of such services due to a change in Subscriber’s requirements (which may occur as a result of new information being discovered by either Subscriber or Fusebill), then unless otherwise agreed by Fusebill, such circumstance shall (i) constitute a material change to this Agreement; and (ii) entitle Fusebill to alter the Project Plan, applicable fee and or Fusebill responsibilities that are or were predicated on assumptions in this Agreement.
Customization services that relate to services and usage other than the published Fusebill interface are not upwardly compatible and must be re-applied at Subscriber’s sole cost to each Service upgrade. Upon written request by Subscriber, Fusebill will provide Subscriber with a cost and scope estimate to upgrade the customization services previously provided.
Fusebill is not responsible for ensuring that any customization service which uses APIs from third-party systems will remain upwardly compatible should such third-party systems be upgraded to a newer version. If such an incompatibility occurs, upon Subscriber’s written request, Fusebill will provide Subscriber with a cost and scope estimate to upgrade the customization services previously provided.
Product Feature Commitments – Fusebill will use commercially reasonable efforts to fulfill commitments specified in Subscriber’s Order Form and/or Statement of Work as “product feature commitments” (if any); however, such commitments are subject to ongoing review and accordingly, Fusebill reserves the right to change delivery dates associated with such commitments at any time.
Subject to Section 4.3, Fusebill reserves the right to re-use the concepts, specifications and implementation of any custom services and/or product feature commitments delivered to Subscriber. Fusebill hereby grants to Subscriber an irrevocable, non-exclusive, worldwide, perpetual, fully paid-up, royalty-free right and license to use, modify and create derivative works from such custom services, product feature commitments and their related deliverables, provided that Subscriber agrees to refrain from distributing such custom services and/or product feature commitments (and/or their related deliverables), or any portion thereof, as a stand-alone good or service.
6.1.5 Failure to Use Account. Failure to use Subscriber’s account will not be deemed a basis for refusing to pay any Charges invoiced by Fusebill in accordance with this Agreement.
6.1.6 Update Payment Information. Subscriber will:
(i) Keep the billing, credit card and payment information Subscriber provides to Fusebill (including name, credit card number and expiry date, mailing address, email address and telephone number) accurate and up to date; otherwise, Fusebill may suspend the Service;
(ii) Promptly advise Fusebill if Subscriber’s credit card information changes due to loss, theft, cancellation or otherwise and be responsible for any Charges submitted before Fusebill could reasonably act on Subscriber’s notice; and
(iii) Be liable for Subscriber’s failure to pay any Charges billed to Subscriber by Fusebill caused by Subscriber’s failure to provide Fusebill with up to date billing information.
6.1.8 Invoice Inquiries. If Subscriber has any questions regarding any Charges that have been applied to Subscriber’s account, Subscriber must contact Fusebill Finance at [email protected] within thirty (30) days of the applicable charge date.
6.2 Processing Costs.
To offset its additional processing costs, Fusebill may bill Subscriber for administrative charges as set from time to time for administrative or account activities including: collection efforts due to non-payment or having a balance over Subscriber’s credit limit (if applicable) or returned or rejected payments as detailed in the applicable Order Form or Statement of Work. All administrative charges charged to Subscriber will be indicated on Subscriber’s invoice or receipt and Subscriber will pay all such charges on receipt.
All Charges are exclusive of value added, sales or other taxes, except as required by law. If Subscriber has a valid tax exemption certificate, please notify Fusebill and provide a copy of it prior to Fusebill’s billing of any Charges. If Subscriber is a Canadian resident, Subscriber will be charged H.S.T, G.S.T. and/or P.S.T., as applicable. If Subscriber resides outside of Canada, Subscriber’s place of residency will be deemed not to be Canada unless Fusebill is notified otherwise. It is Subscriber’s responsibility to inform Fusebill if Suscriber’s residency changes and to provide a mailing address and proof of residency. Non-Canadian residents will be deemed not to have registered for G.S.T. unless Fusebill is notified otherwise.
6.4 Changes to the Service and Charges.
Fusebill may change the Service (or any aspect thereof, including Professional Services) or Charges (including one-time Charges) at any time upon a minimum of thirty (30) days’ notice to Subscriber by posting the change on the Website, by sending notice via an email to the email address Subscriber provides on registration, by including a message on Subscriber’s invoice, in writing, or by any other notice method reasonably likely to come to Subscriber’s attention. Unless otherwise indicted on Subscriber’s Order Form, if Subscriber’s access to and use of the Service remains unchanged on renewal (i.e. no change to Revenue Band or no other change in the subscription plan that applies to Subscriber), Fusebill reserves the right to increase Subscriber’s subscription fee by not more than 8% per annum.
Unless otherwise agreed by Fusebill, Subscriber may only change the subscription plan that applies to Subscriber (as further described in Section 6.1.1 (a) and (b) above) on a minimum of sixty (60) days’ prior written notice to Fusebill; such change will become effective on the next anniversary of the Effective Date.
Fusebill reserves the right, at its sole discretion, to impose upper limits on various aspects of Subscriber’s use of the Service (including, employee logins, customers, invoices, API requests, subscriptions and emails), in relation to both Subscriber’s subscription and related sandbox account(s) (if any); such limits, if any, shall be as detailed in the applicable Order Form. Use in excess of such limits shall entitle Fusebill to increase the subscription fee applicable to Subscriber in accordance with Fusebill’s then-applicable fee schedule.
If Subscriber does not accept any of the above-described change(s), Subscriber’s sole recourse is to terminate the Service in accordance with Section 7 of this Agreement. Continued access to and use of the Service after the change(s) come(s) into effect constitutes Subscriber’s acceptance of the change(s) and Subscriber acknowledges and agrees that (i) Subscriber will be deemed to have accepted the change(s), with no additional written agreement or express acknowledgement required; and (ii) Subscriber will continue to be responsible to pay for the Service unless Subscriber terminates this Agreement in accordance with Section 7.
6.5. Pre-authorized Payment.
By providing a credit card to Fusebill as part of the account set-up for monthly or annual pre-authorized payments, Subscriber authorizes Fusebill to charge Subscriber’s credit card for all outstanding Charges and outstanding account balances due under the Agreement, and this constitutes Fusebill’s good and sufficient authority for so doing. If Subscriber’s pre-authorized payment fails, Fusebill may immediately suspend or terminate Subscriber’s account without notice to Subscriber and collect Charges owing using other collection mechanisms. Subscriber is solely responsible for all Charges incurred under Subscriber’s account by Subscriber or third parties.
- TERM AND TERMINATION
This Agreement is effective as of the Effective Date and will remain effective until terminated by either party as set forth below.
Unless otherwise specified on the applicable Order Form, the term of this Agreement shall commence on the Effective Date and continue for 1 year periods (billed annually in advance, unless otherwise specified on the applicable Order Form, in accordance with Section 6 (Payment Terms)) and shall automatically renew for successive one (1) year periods, unless either party elects to terminate in accordance with this Agreement or provides prior written notice of non-renewal to the other party at least thirty (30) days’ prior to the end of the then-current term.
7.2 Service Suspension or Termination by Fusebill.
Without limiting other remedies, Fusebill may limit, suspend or terminate this Agreement and Subscriber’s use of the Service (and all Fusebill IP), and delete Subscriber’s user account and/or user ID, with immediate effect, if any outstanding invoice is more than thirty (30) days past due, or if Fusebill determines (acting reasonably) that Subscriber is (i) in breach of any of the terms of this Agreement, (iii) acting inconsistently with respect to any Fusebill policies, or (iv) engaging in fraudulent or illegal activities. Fusebill will effect such suspension or termination by providing notice to Subscriber in writing and/or by preventing access to Subscriber’s account.
7.3 Effect of Termination.
Fusebill and the Fusebill Related Parties will not be liable in respect of any damage caused by the termination of this Agreement. Upon termination of this Agreement, the Service (and therefore, Subscriber’s access to Fusebill’s system) will terminate. Termination of this Agreement will not relieve Subscriber of any obligation to pay any accrued Charges and Fusebill will submit a final invoice in respect of unpaid Charges (if applicable).
7.4 Transition Support.
If Subscriber wishes to have Fusebill export a copy of Subscriber Data to another PCI-compliant vendor, Subscriber must submit a written request to Fusebill within sixty (60) days of the termination of this Agreement. Subscriber Data exports vary in complexity and duration depending on the amount and type of Subscriber Data stored on Subscriber’s behalf. Accordingly, Subscriber Data export may require Subscriber’s execution of a Data Transfer Release and Indemnification Agreement (in the form provided by Fusebill at Subscriber’s request) and is subject to the parties agreeing in good faith to the terms for such export in a Statement of Work, including, the anticipated timeframes, resources and costs associated with such export. All applicable costs are the responsibility of Subscriber and must be paid in advance of the export. If Subscriber does not notify Fusebill within thirty (30) days of the termination of this Agreement that Subscriber wishes to export the Subscriber Data and/or agreement is not reached on all applicable export terms and conditions, Subscriber acknowledges and agrees that Fusebill may delete the Subscriber Data from its systems with no liability to Subscriber.
- SUPPORT SERVICES
8.1 Service Levels.
Fusebill uses commercially reasonable efforts to keep the Service operational [at 99.95% uptime availability] on a 24/7 basis except for planned downtime, scheduled maintenance or any unavailability caused by circumstances beyond Fusebill’s reasonable control including, but not limited to, force majeure events (as provided in Section 12.5), availability issues (including downtime or service outages) of Subscriber’s payment gateway service provider.
8.2 Support Named Contacts.
Fusebill customer service and technical support in relation to the Service are provided to Fusebill customers only. For the avoidance of doubt, Subscriber will be responsible for providing first line support to End Users. Within ten (10) days of the Effective Date of this Agreement, Subscriber must provide Fusebill with the name and contact information for not more than three (3) named contact(s) who are authorized by Subscriber to access Fusebill’s support services. Subscriber’s authorized named contact(s) may be changed if necessary on written notice to Fusebill. Fusebill may refuse to provide support to anyone not authorized by Subscriber as described herein.
8.3 Support Access.
English language technical support is offered between the hours of 9:00 AM to 5:00 P.M. Eastern Time, Monday to Friday, excluding all Canadian/Ontario federal and provincial statutory holidays, via the following toll-free phone number in North America: 888-519-1425 x 2. Unless otherwise agreed by Fusebill, bug issues identified during a Professional Services engagement will receive the same treatment (in terms of prioritization and resolution) as post-deployment bug issues identified by Subscriber or other Fusebill subscribers.
- NO RESPONSIBILITY FOR THIRD-PARTY OFFERINGS
The Website may contain links to third-party websites (“Third-Party Sites”) or third-party content (“Third-Party Content”) and may provide third-party software, services, applications or functionality that link to, interoperate with, are used in conjunction with, or are incorporated into the Service (“Third-Party Services”), including payment processors, that Subscriber may use in connection with its use of the Service (collectively, “Third-Party Offerings”). Subscriber acknowledges and agrees that Fusebill does not own or control such Third-Party Offerings, they are made available as a convenience only and they are not part of the “Service” or subject to any warranties (express or implied), service commitments or other obligations with respect to the Service hereunder. Providers of Third-Party Offerings are not partners, agents or representatives of Fusebill and it is up to Subscriber to decide whether to use or enable Third-Party Offerings and Subscriber must rely on its own skill and judgement in electing to do business with such third-party providers. The providers of Third-Party Offerings are solely responsible for such Third-Party Offerings, the content therein, any warranties (to the extent that such warranties have not been disclaimed), any training, support or maintenance (unless otherwise expressly agreed to by Fusebill), and any claims that Subscriber or any other party may have relating to such Third-Party Offerings, including Subscriber’s use of them. Inclusion in the Service of Third-Party Offerings does not imply Fusebill’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Offerings. Fusebill has no obligation to monitor or maintain Third-Party Offerings and may disable or restrict access to any Third-Party Offerings at any time without notice. Access to and use of any Third-Party Offerings, including the availability thereof and uptimes related thereto, is at Subscriber’s own risk and is solely determined by the relevant third-party provider and is subject to additional terms and conditions applicable to such Third-Party Offerings. Subscriber is solely responsible for maintaining appropriate accounts in good standing with the providers of Third-Party Offerings. Fusebill will have no liability or other obligation to Subscriber for any Third-Party Offering or Subscriber Data exported to a Third-Party Offering, including but not limited to any unavailability of any Third-Party Offerings, or any third-party provider’s decision to discontinue, suspend or terminate any Third-Party Offerings.
By using or enabling any Third-Party Offering, Subscriber is expressly permitting Fusebill to disclose Subscriber Data or other information to the extent necessary to any applicable provider of such Third Party Offering for the Service to interoperate with, or for Subscriber to utilize or benefit from, the Service with such Third-Party Offering. Fusebill is not responsible for any disclosure, modification or deletion of Subscriber Data resulting from access by, or transmission to, a Third-Party Offering.
Subscriber acknowledges and agrees that Fusebill and its Affiliates are third party beneficiaries of the Terms of Service, including any End User License Agreements, as applicable, for such Third-Party Offerings, and that, upon Subscriber’s acceptance of the terms and conditions applicable to any such Third-Party Offerings, Fusebill will have the right (and will be deemed to have accepted the right) to enforce the applicable terms and conditions against Subscriber as a third party beneficiary thereof.
- DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABLITY
10.1 NO WARRANTIES.
FUSEBILL DOES NOT OFFER FINANCIAL OR BILLING ADVICE. FUSEBILL DOES NOT ASSUME ANY LIABILITY WITH RESPECT TO ANY THIRD-PARTY HARDWARE, FIRMWARE OR THIRD-PARTY OFFERINGS. THE SERVICE, INCLUDING ANY THIRD-PARTY OFFERINGS, IS PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE IN RESPECT THEREOF. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FUSEBILL AND FUSEBILL RELATED PARTIES AND ITS PROVIDERS OF THIRD-PARTY OFFERINGS (THE “SUPPLIERS”) DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, INTEGRITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OR IN COMPLIANCE WITH ANY LEGAL OBLIGATION, LAW OR REGULATION. THE SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE SERVICE, INCLUDING ANY THIRD-PARTY OFFERINGS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT DATA LOSS, NOR DO THE SUPPLIERS WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. THE SUPPLIERS FURTHER DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, AS TO THE ACCURACY, RELIABLITY AND QUALITY OF CONTENT IN, OR LINKED TO, THE SERVICE. SUBSCRIBER ACKNOWLEDGES THAT, IN USING THE SERVICE, SENSITIVE CONFIDENTIAL AND/OR PROPRIETARY INFORMATION WILL TRAVEL THROUGH THIRD-PARTY INFRASTRUCTURES WHICH FUSEBILL HAS NO CONTROL OVER AND FOR WHICH FUSEBILL WILL BEAR NO LIABILITY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT INCLUDING, BUT NOT LIMITED TO, MARKETING LITERATURE OR COLLATERAL OR STATEMENTS REGARDING PERFORMANCE OF THE SERVICE BY FUSEBILL WHICH IS NOT CONTAINED IN THIS SECTION WILL BE CONSIDERED TO BE A WARRANTY OR REPRESENTATION AND SHOULD NOT BE RELIED UPON AND IS NOT BINDING UPON FUSEBILL.
10.2 LIMITATION OF LIABILITY
10.2.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER FUSEBILL NOR ANY FUSEBILL RELATED PARTIES NOR ANY OF ITS PROVIDERS OF THIRD-PARTY OFFERINGS WILL HAVE ANY LIABILITY TO SUBSCRIBER OR TO ANY OTHER PERSON OR ENTITY, ARISING UNDER OR OUTSIDE THIS AGREEMENT AND/OR RELATED TO THE SERVICE PROVIDED TO SUBSCRIBER BY FUSEBILL (INCLUDING ANY FUSEBILL RELATED PARTIES AND ANY OF ITS PROVIDERS OF THIRD-PARTY OFFERINGS), FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS OR SERVICE INTERRUPTION, REPLACEMENT OR RECOVERY COSTS, FAILURE OF THE INTERNET OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER IN CONTRACT, EQUITY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF FUSEBILL (INCLUDING ANY FUSEBILL RELATED PARTIES AND ANY OF ITS PROVIDERS OF THIRD-PARTY OFFERINGS, AS APPLICABLE) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE.
10.2.2 IN THE EVENT APPLICABLE LAW DOES NOT PERMIT THE LIMITATIONS AND/OR EXCLUSIONS IN THE ABOVE SECTION TO BE COMPLETELY DISCLAIMED, THESE LIMITATIONS AND/OR EXCLUSIONS WILL BE INTERPRETED AS NECESSARY TO GIVE FUSEBILL (INCLUDING THE FUSEBILL RELATED PARTIES AND ANY OF ITS PROVIDERS OF THIRD-PARTY OFFERINGS, AS APPLICABLE) THE MAXIMUM BENEFIT OF ANY DISCLAIMER, LIMITATION AND/OR EXCLUSION AS PERMITTED BY APPLICABLE LAW.
10.2.3 IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF FUSEBILL (INCLUDING THE FUSEBILL RELATED PARTIES AND ANY OF ITS PROVIDERS OF THIRD-PARTY OFFERINGS, AS APPLICABLE), WHETHER IN CONTRACT, EQUITY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, TO SUBSCRIBER OR TO ANY OTHER PERSON OR ENTITY ARISING UNDER OR OUTSIDE THIS AGREEMENT AND/OR RELATED TO THE SERVICE PROVIDED TO SUBSCRIBER BY FUSEBILL (INCLUDING ANY FUSEBILL RELATED PARTIES AND ANY OF ITS PROVIDERS OF THIRD-PARTY OFFERINGS, AS APPLICABLE) EXCEED THE CHARGES PAID BY SUBSCRIBER FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
10.3 THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY IN THIS SECTION CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SUBSCRIBER ACKNOWLEDGES THAT, BUT FOR THE ABOVE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER FUSEBILL NOR ANY OF THE FUSEBILL RELATED PARTIES OR ANY OF ITS PROVIDERS OF THIRD-PARTY OFFERINGS, AS APPLICABLE, WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. SUBSCRIBER’S ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICE IS TO IMMEDIATELY CEASE USING IT.
10.4 NO ACTION ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE YEAR AFTER THE ACTION ACCRUED, OR, IN THE EVENT A MANDATORY STATUTORY LIMITATION PERIOD IN EXCESS OF ONE YEAR APPLIES IN A PARTICULAR JURISDICTION, THE MINIMUM PERIOD ALLOWED BY LAW IN THAT JURISDICTION.
11.1 By Subscriber.
SUBSCRIBER AGREES (AT SUBSCRIBER’S SOLE COST AND EXPENSE) TO INDEMNIFY, DEFEND AND HOLD FUSEBILL AND THE FUSEBILL RELATED PARTIES, HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES INCURRED BY SUCH PARTIES, IN CONNECTION WITH OR ARISING OUT OF: (A) SUBSCRIBER’S BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN; OR (B) SUBSCRIBER OR END USERS’: (I) USE OF THE SERVICE (INCLUDING THE DELIVERY OF ANY MESSAGES AND DOCUMENTS WHILE USING THE SERVICE); (II) BREACH OF ANY RIGHTS OF ANY THIRD PARTY (INCLUDING INFRINGEMENT OF ANY TRADEMARK OR COPYRIGHT); OR (III) USE OR MISUSE OF THE SERVICE OR ANY FUSEBILL IP.
12.1 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between Subscriber and Fusebill with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
12.2 Interpretation. Section headings are for convenience only and shall not be used to interpret this Agreement. The words “including”, “Include” and “includes” and the phrases “by way of example”, “such as” and “for example” when used in the Agreement shall each be deemed to be followed by the words “without limitation”.
12.3 Severability. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, the remainder of this Agreement will remain in full force and effect.
12.4 No Waiver. No delay or omission to exercise any right or remedy by either party hereunder shall constitute a waiver of that right. No waiver of any provision of the Agreement shall be valid unless in writing and signed by the waiving party.
12.5 Force Majeure. Neither party shall be deemed to be in breach of the Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, third party strikes, pandemics or epidemics or any related restrictions imposed by applicable health authorities, failure of suppliers, fires, floods, earthquakes or Internet or telecommunications failures. In the event a force majeure event affecting a party continues for a period longer than 30 days, either party shall be entitled to terminate the Agreement as of the date specified in the written notice to the other party to that effect.
12.6 Assignment. Either party may assign this Agreement without the other party’s consent to a successor in interest in connection with a sale of all or substantially all of its assets or equity not involving a direct competitor of the other party, and provided the assigning party promptly notifies the non-assigning party in writing of the assignment and the assignee agrees in writing to be bound by the terms of this Agreement and assume the obligations of the assigning party under the Agreement pursuant to this Section. The Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
12.7 Applicable Law and Venue. This Agreement will be governed by and construed in accordance with the laws of Ontario, Canada without giving effect to any conflict of laws or provisions whether contained in Canadian law or the laws of Subscriber’s current state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the province of Ontario, Canada. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement, except where required by law.
12.8 Survival. The provisions of this Agreement which, by their nature extend beyond termination of the Agreement, will survive including, but not limited to, any exclusion or limitation of Fusebill’s (including the Fusebill Related Parties and any providers of Third-Party Offerings) liability specified in this Agreement and any indemnification by Subscriber.
12.9 Notice. Every notice provided for in this Agreement will be delivered when received by either email, registered mail, certified mail (return receipt requested) or overnight mail, addressed to the attention of the person executing this Agreement (or that person’s successor’s name and contact information identified in writing by an authorized representative of the Party making the change) and sent to: (i) in Subscriber’s case, the email or mailing address that Subscriber provides to Fusebill on registration; and (ii) in the case of Fusebill, to Suite 203, 232 Herzberg Road, Kanata, Ontario CANADA, K2K 2A1.
12.10 Independent Contractors. The parties are independent contractors and nothing in the Agreement shall be deemed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.
12.11 Export Control; Anti-Corruption. The parties each agree: (a) to comply with any applicable export control laws or similar regulations in providing and using the Service; and (b) that they have not received or been offered any illegal or improper bribe, kickback, payment or gift from the other party in connection with the Agreement (reasonable gifts and entertainment provided in the ordinary course of business excluded).
12.12 Remedies. Subscriber acknowledges that the Service contains valuable trade secrets and proprietary information of Fusebill, that any actual or threatened breach by Subscriber of its obligations with respect to intellectual property rights of Fusebill, will constitute immediate, irreparable harm to Fusebill for which monetary damages would be an inadequate remedy. In such case, Fusebill will be entitled to seek immediate injunctive relief without the requirement of posting bond.
12.13 Dispute Resolution. Except for actions related to non-payment of Fees or breach of a party’s proprietary rights, the parties will use commercially reasonable efforts to discuss and resolve in good faith any dispute arising under the Agreement as soon as practicable and without the necessity of any formal proceeding, including, if requested in writing by either party, by each appointing one or more senior management representatives not directly involved with the day-to-day provision or use of the Services, who shall endeavor to resolve such dispute at a meeting to take place at a mutually agreeable time and place. Unless otherwise agreed by the parties, such meeting shall be scheduled within 14 days of either party’s request, and the senior management representatives shall reach or abandon resolution within 30 days following the party’s request. Nothing in this Section shall prevent Fusebill from exercising its rights of suspension and/or termination pursuant to Sections 6.1 and 7.2.
12.14 No Third Party Beneficiaries. This Agreement is made solely for the benefit of Subscriber and Fusebill (including Fusebill’s Related Parties), and our respective permitted successors and assigns. No other person or entity will have or acquire any right by virtue of this Agreement unless otherwise agreed by Fusebill.
12.15 Attribution. Unless otherwise set forth on Subscriber’s Order Form and subject to any usage guidelines that Subscriber provides or any pre-approval or authorization that Subscriber may require (not to be unreasonably withheld or delayed), Fusebill may use Subscriber’s name (and the corresponding trademark or logo) on the Website and in other promotional and marketing materials to identify Subscriber as a Fusebill customer.