FUSEBILL SERVICES AGREEMENT
THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN FUSEBILL INC. (“FUSEBILL”) AND YOU. IT GOVERNS USE BY YOU (AND YOUR END USERS) OF FUSEBILL’S MANAGED SUBSCRIPTION BILLING SOFTWARE SERVICE AND RELATED PROFESSIONAL SERVICES (COLLECTIVELY, THE “SERVICE”).
THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICE SO YOU SHOULD READ IT CAREFULLY. BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY, YOU REPRESENT AND WARRANT THAT: YOU ARE DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY; AND SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
THIS AGREEMENT IS EFFECTIVE BETWEEN YOU AND FUSEBILL AS OF THE DATE YOU ACCEPT IT (THE “EFFECTIVE DATE”).
AS USED IN THIS AGREEMENT:
“DATA” MEANS THE CUSTOMER DATA AND INFORMATION YOU UPLOAD AND/OR CREATE WHILE USING THE SERVICE.
The Service that Fusebill provides to You is subject to these terms and conditions of use. 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 on file with Fusebill.
The revised Agreement will become effective on the tenth (10th) day following such publication or provision to You. Your express acceptance or Your continued use of the Service after the expiry of the ten (10) day notice period will constitute Your acceptance to be bound by the revised Agreement. You can find the latest version of this Agreement on the Website.
YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE WEBSITE TO OBTAIN TIMELY NOTICE OF ANY REVISED AGREEMENTS.
2.1 How it Works.
Fusebill facilitates invoicing and directs Your customers’ transaction payments to Your chosen payment gateway through our user interface or APIs. You are responsible for keeping Your Data (as defined in the preamble to this Agreement) up to date and Fusebill will have no liability to You or Your customers for any issues arising as a result of Your failure to do so.
For greater certainty, You acknowledge and agree that Fusebill is neither a payment gateway provider nor a bank, and Fusebill will not hold any funds on behalf of You or Your customers. FUSEBILL AND ITS PARENT(S), SUBSIDIARY(IES), AND AFFILIATE(S), OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS, SUPPLIERS, RESELLERS AND/OR DISTRIBUTORS (COLLECTIVELY, THE “FUSEBILL RELATED PARTIES”) ARE NOT LIABLE TO YOU FOR ANY AMOUNTS DUE TO YOU IN RELATION TO ANY TRANSACTION CONDUCTED THROUGH THE PAYMENT GATEWAY THAT YOU CHOSE TO USE.
2.2 Subscription Types.
2.2.1 Trial Subscription. Fusebill offers a free trial of the Service for initial assessment. If Your subscription is a trial subscription, You agree that at the end of Your trial period (typically seven (7) days unless otherwise agreed by Fusebill), You will no longer be able to use the Service unless You purchase a paid full subscription. During the trial period, the Service is provided “as is” (with no warranty or Support Services, as described below). Unless You purchase a paid full subscription to the Service by the end of the trial period, You will not be able to access the Data stored using the Service during the trial period.
2.2.2 Full Annual Subscription. Unless otherwise specified on Your Order Form, the Service can only be purchased as an annual subscription, as further described below.
3.1 Service Use Guidelines.
You are only permitted to use the Service as described in Your Order Form, in accordance with the terms and conditions of this Agreement. You may not: (a) modify, translate, reverse engineer, decompile, disassemble or create derivative works based on the Service (or any components of it); (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. For greater certainty, this Section does not limit or prevent independent development by or on behalf of You of any product or service having the same or similar features and functionality, provided that no Fusebill confidential or proprietary information Fusebill is used in such development.
3.2 Access to Service Back-end and Authorized End Users.
You are responsible for obtaining, maintaining and supporting all internet access, computer hardware and other services needed to access the Service. You will be provided with login details enabling access to the Service back-end which contains information, statistics and materials relating to the Data. You will have the ability to monitor in real time and print reports including billing statistics for Your customers. You determine the access controls for Your end users and You are responsible for ensuring the security of Your login details. Fusebill will in no event be liable to You or to any third party (including Your end users) for unauthorized use or access to the Data through Your user account. You agree to notify Fusebill promptly upon becoming aware of any such unauthorized use or access.
3.3 Professional Services.
Fusebill offers a variety of professional services, including implementation, integration and custom software development (collectively, the “Professional Services”). Fusebill’s Professional Services obligations to You are as described in Your Order Form and/or Statement of Work, as applicable.
You agree to meet all of Your obligations as described in this Agreement, as well as any and all laws, regulations and policies that may apply to the use of the Service in Your country. You will use the Service solely for lawful purposes. For clarity, You shall not, without limitation: (i) use the Service to manage any illegal operations; (ii) use any type of spider, virus, worm, trojan horse, time bomb or any other codes or instructions that are designed to distort, delete or damage the Fusebill system; (iii) send any unsolicited commercial communication not permitted by applicable law; or (iv) endanger any part of any system (including the Fusebill system) or Internet connection of Fusebill or any third party. YOU AGREE TO INDEMNIFY AND HOLD FUSEBILL AND THE FUSEBILL RELATED PARTIES HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, JUDGMENTS, EXPENSES AND COSTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEY’S FEES AND EXPENSES) ARISING OUT OF YOUR OR YOUR END USERS’ USE OF THE SERVICE, YOUR BREACH OF THIS AGREEMENT, AND THE DELIVERY OF ANY OF YOUR MESSAGES AND DOCUMENTS USING THE SERVICE, OR THE INFRINGEMENT OF ANY TRADEMARK OR COPYRIGHT BY YOU.
3.5 Unsolicited Information & Opt-Outs.
The Service may include the provision of communications on behalf of You to Your end users. It is Your responsibility to provide Your end users with the ability to opt-out of communications provided by Fusebill on Your behalf. It is also Your responsibility to inform Fusebill promptly if any of Your end users opt-out of receiving communications. Your failure to comply with these responsibilities is prohibited and is a material breach of this Agreement. Fusebill and the Fusebill Related Parties will have no liability whatsoever for any breach of this obligation by You.
4.1 Exclusive Ownership.
Any and all intellectual property rights to or arising from the software and technology underlying the Service (including any copies, corrections, bug fixes, enhancements, modifications or new versions thereof) (“Fusebill IP”) are and will remain the exclusive property of Fusebill and its licensors. Nothing in this Agreement intends to transfer any such IP rights to, or to vest any such intellectual property rights in You. You are only entitled to the limited use of the intellectual property rights granted to You in this Agreement. You may not copy, modify or reverse engineer any part of the Service owned by Fusebill or otherwise interfere with Fusebill IP. 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, without limitation, 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. You acknowledge and agree that only Fusebill will have the right to maintain, enhance or otherwise modify the Service.
4.2 Usage Data.
Fusebill monitors and collects data about the general use of the Service by all of its customers. 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 Data (as defined above).
4.3.2 Confidentiality. In addition to the confidential treatment of 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. 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. Confidential Information does not include any information that (1) was known (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 a third party (without a duty of confidentiality), or (4) is independently developed (without access or use of Confidential Information). The receiving party may disclose Confidential Information when compelled to do so by law, so long as the receiving party provides 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.
You agree 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 You relating to the Service.
5.1 Customer Data.
As between You and Fusebill, You own and are responsible for the accuracy, quality, integrity and legality of the Data but access to and retrieval of Data is subject to the express terms set out in this Agreement. You hereby grant (and warrant that You have the right to grant) to Fusebill and the Fusebill Related Parties, the right and license to access and use the Data to the extent necessary to perform the Service as contemplated by this Agreement.
5.2 Data Security.
You are responsible for (i) properly configuring the access rights for Your end users; and (ii) all access and use of the Service by Your end users. During the term of this Agreement, Fusebill will maintain administrative, technical and physical safeguards designed to protect the security, confidentiality and integrity of the Data within Your Fusebill account; however, Fusebill and the Fusebill Related Parties have no responsibility or liability whatsoever for the deletion, loss, disclosure of, or failure to store, the Data, documents and/or other communications maintained or transmitted by the Service. You acknowledge that Fusebill may change its practices and limitations concerning storage of the Data at any time, provided that such changes do not diminish Fusebill’s current Data obligations to You. Fusebill will promptly notify You of any actual or suspected breaches of security that may result in the unauthorized access, use or disclosure of the Data and will cooperate with You in the investigation and remediation of any such breach of security.
5.3 Data Access and Controls.
You manage and control access to the Service by Your end users as well as the use and processing of the Data by the Service. 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 Your compliance with the terms of this Agreement. Data that is accessed by Fusebill will be kept confidential, handled in accordance with applicable laws and regulations and not shared with any unauthorized personnel or comingled with other data.
5.4 Data Disclosure.
Fusebill may disclose 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 You of the request for such disclosure (unless prohibited by such process) and will cooperate with You if You choose to contest the disclosure, seek confidential treatment of the Data to be disclosed or limit the nature or scope of the Data to be disclosed.
6.1.1 Fee Description. Your subscription fee for access to and use of the Service is based on (i) Your Revenue Band or (ii) a percentage of the actual net invoiced revenue that You use the Service to process (plus a fixed monthly platform fee). As used in this Agreement, “Revenue Band” refers to the maximum amount of net invoiced revenue that You either (i) self-report to Fusebill (as of the Effective Date, in respect of the first and/or second year of Your use of the Service); or (ii) use the Service to process (in respect of any renewal term(s), as of the anniversary of Your Effective Date). If You self-report/use the Service to process net invoiced revenue amount(s) in a currency other than USD, Fusebill will convert all non-USD currencies to USD using the Bank of Canada’s monthly average exchange rate for the month prior to (i) Your Effective Date or (ii) the anniversary thereof, as applicable (available here - http://www.bankofcanada.ca/rates/exchange/monthly-exchange-rates/). The applicable Revenue Band will be calculated in reference to the previous twelve (12) month period (i.e. on a “trailing” or historic basis). You agree to pay all subscription fees, administrative charges (see Section 6.2), professional services fees and, as applicable, taxes (collectively, “Charges”) for Your use of the Service in the currency in which You are billed and according to the payment plan applicable to Your Service and in effect for Your country of residence, as specified on Your Order Form.
6.1.2 Access. Your access to and use of the Service, including all related Professional Services, is subject to Your payment of the Charges set out on Your Order Form.
6.1.3 Payment Terms. Unless otherwise stated on Your Order Form or in this Agreement, (i) subscription fees, professional services fees and, as applicable taxes, are payable in advance as of the Effective Date, either monthly or annually as indicated on Your 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 Your 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. If You are required to complete certain tasks in order for Fusebill to timely deliver the Professional Services selected by You, You agree to (i) provide a dedicated project manager to facilitate interaction between Fusebill and You; (ii) make decisions and supply documents and other materials as needed; and (iii) promptly approve all deliverables and respond to issues needing resolution. Any failure by You to act in accordance with (i) – (iii) above, including without limitation, excessive stopping and starting of Fusebill’s delivery of the Professional Services, may result in scope and/or fee changes and gives Fusebill the right to require reimbursement from You for any incremental costs that it incurs as a result of such failure(s). Unless otherwise specified on Your 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, You agree 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 You when it accomplishes the activities described in Your 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 Your Order Form and/or Statement of Work must be received in writing by Your assigned Fusebill representative within three (3) business days of Your receipt of the deliverable at issue, failing which, such deliverable will be deemed accepted. Upon receipt of such notification, Fusebill with work with You to mutually agree on the required modifications. Deviations from the specification provided by You to Fusebill that are identified in writing to Fusebill within fifteen (15) days of Your 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 Your Order Form and/or Statement of Work are to be delivered within one hundred and twenty (120) calendar days of Your acceptance of this Agreement, failing which, Fusebill may, in its sole discretion, require You to forfeit Your right to receive such services. Extensions to this deadline may be requested via a written change order; such requests are subject to Fusebill’s reasonable review and approval.
Professional Services resources will only be assigned and schedules confirmed upon Your acceptance of this Agreement (or a signed Statement of Work, if required). Note that custom software development 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 Your custom software development services, if any, following acceptance of this Agreement.
Professional Service activities that require customization of the Service require a separate Statement of Work (see Custom Software Development below).
Additional terms and conditions apply to the following categories of Professional Services:
Implementation – Using the currently shipping, generally available version of the Service, Fusebill will work with You to define a representative sampling of Your product catalog in order to illustrate the Service’s various configuration options (which may or may not comprise Your entire catalog). The remaining catalog items will be configured by You. 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 Fusebill’s resource availability); and (iii) receipt of Your final import file not later than 24 hours before Your scheduled import date, failing which, Your import date reservation may be forfeited and rescheduled by Fusebill at its sole discretion and convenience. Other details regarding the Data’s import file format and the applicable submission process are available from Fusebill’s on-line help, available at http://help.fusebill.com/importing-customer-data-to-fusebill.
As used in this Agreement and Your Statement of Work, “Go-Live Date” means the mutually agreed date on which You expect to process payments using the Service. The Go-Live Date will be agreed to by You and Fusebill. Both parties will use commercially reasonable efforts to meet the Go-Live Date. After Your Go-Live Date, Fusebill is under no obligation to continue to import Data.
Fusebill will only accept responsibility for delays that affect Your Go-Live Date (and if applicable, a corresponding deferral of fees owed to Fusebill as of such date) if such delays are the direct result of bugs that have been reported to and acknowledged by Fusebill. If applicable, the transfer of Your end users’ credit card information from another PCI compliant vendor to Fusebill is Your responsibility. If Fusebill’s receipt of this information is delayed and Your Go-Live Date is negatively impacted as a result, Fusebill reserves the right to enforce the original fee schedule associated with Your Professional Services as described in Your Order Form and/or the applicable 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 You either one time or on a recurring schedule. You may choose to customize the data export by selecting specific (i) object(s) (such as invoices, subscriptions, plans and products, customers and/or transactions), and/or (ii) field sets (columns) You would like to include in the export for each of the object types selected, as well as a single set of sort and filter options (can be multiple columns and/or filter criteria, provided that all criteria are to be applied to the same report). Relational information can be included between objects where applicable, assuming it can be represented in a flat file (with the possibility of repeat rows). The number of Custom Reports that you are entitled to receive depends on your Implementation Services level, as described in Your Order Form and/or the applicable Statement of Work. Once the Custom Report has been deployed to the production environment, it will consume one of Your Custom Report entitlements. You have the ability to run each Custom Report either on demand or as scheduled by You.
You are 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; and (iii) any sorting or filtering requirements over and above those defined in the base Report. For clarity, requests for the same data with different sorting or filtering parameters each count as a separate Custom Report Request against Your allotted total.
Changes are allowed during the “design” phase of each report. During this phase, You will work with a Fusebill reporting 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 You the definition of the Report. You must respond in email confirming the definition. Fusebill will then execute the report query and transmit the file to You based on the parameters described above. You will have a period of five (5) 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 Report will be deemed acceptable. If applicable, the recurring schedule will then be configured.
Changes to an approved Report Design can be done on request to Fusebill Support (email@example.com). Additional Professional Services fees may apply. Fusebill will notify You in advance if an additional fee is required and written approval is required prior to proceeding to make any requested changes.
Custom Software Development – Custom software development services typically require a separate Statement of Work which includes, without limitation, 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 Your requirements (which may occur as a result of new information being discovered by either You 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.
Custom services that relate to other than the published Fusebill interface are not upwardly compatible and must be re-applied at Your sole cost to each Service upgrade. Upon Your written request, Fusebill will provide You with a cost and scope estimate to upgrade the custom services previously provided.
Fusebill is not responsible for ensuring that any custom service which use 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 Your written request, Fusebill will provide You with a cost and scope estimate to upgrade the custom services previously provided.
Product Feature Commitments – Fusebill will use commercially reasonable efforts to fulfill commitments specified in Your 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 You. Fusebill hereby grants to You 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 You agree 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 Your 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. You will:
(i) Keep the billing, credit card and payment information You provide 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 Your credit card information changes due to loss, theft, cancellation or otherwise and be responsible for any Charges submitted before Fusebill could reasonably act on Your notice; and
(iii) Be liable for Your failure to pay any Charges billed to You by Fusebill caused by Your failure to provide Fusebill with up to date billing information.
6.1.8 Invoice Inquiries. If You have any questions regarding any Charges that have been applied to Your account, You must contact Fusebill Finance at firstname.lastname@example.org within thirty (30) days of the applicable charge date.
6.2 Processing Costs.
To offset its additional processing costs, Fusebill may bill You 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 Your credit limit (if applicable) or returned or rejected payments. All administrative charges charged to You will be indicated to You on Your invoice or receipt and You will pay all such charges on receipt.
All Charges are exclusive of value added, sales or other taxes, except as required by law. If You have a valid tax exemption certificate, please notify Fusebill and provide a copy of it prior to Fusebill’s billing of any Charges. If You are a Canadian resident, You will be charged H.S.T, G.S.T. and/or P.S.T., as applicable. If You reside outside of Canada, Your place of residency will be deemed not to be Canada unless Fusebill is notified otherwise. It is Your responsibility to inform Fusebill if Your 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 reasonable notice to You by posting the change on the Website, by sending notice via an email to the email address You provide on registration, by including a message on Your invoice, in writing, or by any other notice method reasonably likely to come to Your attention. Unless otherwise indicted on Your Order Form, even if Your Revenue Band remains unchanged on renewal, Fusebill reserves the right to increase Your subscription fee by not more than 8% per annum. If You do not accept such change(s), Your sole recourse is to terminate the Service in accordance with Section 7 of this Agreement. Your continued access to and use of the Service after the change(s) come(s) into effect constitutes Your acceptance of the change(s) and You acknowledge and agree that (i) You will be deemed to have accepted the change(s), with no additional written agreement or express acknowledgement required; and (ii) You will continue to be responsible to pay for the Service unless You terminate this Agreement in accordance with Section 7.
6.5. Pre-authorized Payment.
By providing a credit card to Fusebill as part of Your account set-up for Your monthly or annual pre-authorized payments, You authorize Fusebill to charge Your 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 Your pre-authorized payment fails, Fusebill may immediately deactivate Your account without notice to You and collect Charges owing using other collection mechanisms. You are solely responsible for all Charges incurred under Your account by You or third parties.
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 Your Order Form (i.e. You have an annual subscription but Your payment term is monthly): (i) Your annual subscription to the Service will be billed in annual intervals, in accordance with Section 6 (Payment Terms); and (ii) at the end of each year, the term of this Agreement will automatically renew for a successive one year period at Fusebill’s then current list price for the Revenue Band that applies to You, absent a minimum of thirty (30) days’ notice from either party that it does not wish to renew this Agreement.
7.2 Service Suspension or Termination by Fusebill.
Without limiting other remedies, Fusebill may limit, suspend or terminate this Agreement and Your use of the Service (and all Fusebill IP), and delete Your user account and/or user ID, with immediate effect, if any outstanding invoice is more than ten (10) days past due, or if Fusebill thinks that You are (i) in breach of this Agreement, (ii) creating legal liabilities (actual or potential), (iii) acting inconsistently with respect to any Fusebill policies, or (iv) engaging in fraudulent or illegal activities. Fusebill will effect such termination by providing notice to You in writing and/or by preventing Your access to Your 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, Your access to Fusebill’s system) will terminate. Termination of this Agreement will not relieve You 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 You wish to have Fusebill export a copy of the Data to another PCI-compliant vendor, You must submit a written request to Fusebill within sixty (60) days of the termination of this Agreement. Data exports vary in complexity and duration depending on the amount and type of Data stored on Your behalf. Accordingly, Data export is subject to the parties agreeing in good faith to the terms for such export in a Statement of Work, including without limitation, the anticipated timeframes, resources and costs associated with such export. All applicable costs must be paid by You in advance of the export. If You do not notify Fusebill within sixty (60) days of the termination of this Agreement that You wish to export the Data and/or agreement is not reached on all applicable export terms and conditions, You acknowledge and agree that Fusebill may delete the Data from its systems with no liability to You.
8.1 Service Levels.
Fusebill uses commercially reasonable efforts to keep the Service operational 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, Acts of God such as flood, fire, earthquakes, Internet service provider failures or delays or availability issues (including downtime or service outages) of Your payment gateway service provider. If the Service is not available at least 99.95% of the time per month to receive Data updates, process invoicing and deliver outgoing transaction related email (except for planned downtime or unavailability as described above), Fusebill will credit You with one (1) month of Your subscription fee via an extension to the term of this Agreement. Your account must be in good standing with no amount in excess of 45 days overdue and You must request this credit via written request within fifteen (15) days of the month in which the above-described uptime availability was not met; it is Your only remedy for Fusebill not meeting its service level commitment to You.
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, You will be responsible for providing first line support to Your end users. Within ten (10) days of the Effective Date of this Agreement, You must provide Fusebill with the name and contact information for not more than three (3) named contact(s) who are authorized by You to access Fusebill’s support services. Your 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 You 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 You or other Fusebill customers.
9.1 NO WARRANTIES.
FUSEBILL DOES NOT OFFER FINANCIAL OR BILLING ADVICE. THE SERVICE 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 WITH RESPECT TO THE SERVICE. FUSEBILL DISCLAIMS AND EXCLUDES 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. FUSEBILL FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES FUSEBILL WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. IN PARTICULAR YOU ACKNOWLEDGE THAT, IN USING THE SERVICE, SENSITIVE CONFIDENTIAL AND/OR PROPRIETARY INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRACTRUCTURES 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. FUSEBILL DOES NOT ASSUME ANY LIABILITY WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.9.2 LIMITATION OF LIABILITY
9.2.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER FUSEBILL NOR ANY FUSEBILL RELATED PARTIES WILL HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ENTITY, ARISING UNDER OR OUTSIDE THIS AGREEMENT AND/OR RELATED TO THE SERVICE PROVIDED TO YOU BY FUSEBILL (INCLUDING ANY FUSEBILL RELATED PARTIES), 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) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE.
9.2.2 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) THE MAXIMUM BENEFIT OF ANY DISCLAIMER, LIMITATION AND/OR EXCLUSION AS PERMITTED BY APPLICABLE LAW.
9.2.3 IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF FUSEBILL (INCLUDING THE FUSEBILL RELATED PARTIES), WHETHER IN CONTRACT, EQUITY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, TO YOU OR TO ANY OTHER PERSON OR ENTITY ARISING UNDER OR OUTSIDE THIS AGREEMENT AND/OR RELATED TO THE SERVICE PROVIDED TO YOU BY FUSEBILL (INCLUDING ANY FUSEBILL RELATED PARTIES) EXCEED THE CHARGES PAID BY YOU FOR THE SERVICE IN THE SIX (6) MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
9.3 THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY IN THIS SECTION CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT, BUT FOR THE ABOVE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER FUSEBILL NOR ANY OF THE FUSEBILL RELATED PARTIES WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICE IS TO IMMEDIATELY CEASE USING IT.
9.4 NO ACTION ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, MAY BE BROUGHT BY YOU 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.
10.1 By You.
YOU AGREE ON DEMAND 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 YOUR (A) BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN; (B) BREACH OF ANY RIGHTS OF ANY THIRD PARTY; OR (C) USE OR MISUSE OF THE SERVICE OR ANY FUSEBILL IP.
11.1 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You 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.
11.2 Severability. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement will remain in full force and effect and the invalid, void or unenforceable portion will be severed from the Agreement.
11.3 No Waiver. If Fusebill does not take action against any breaches of this Agreement, it does not mean that it waives its right to enforce the same at a later time.
11.4 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. Any such assignment by You is subject to Fusebill’s reasonable review of financial information confirming Your proposed assignee’s creditworthiness.
11.5 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 Your 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.
11.6 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) liability specified in this Agreement and any indemnification by You.
11.7 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) and sent to: (i) in Your case, the email or mailing address that You provide to Fusebill on registration; and (ii) in the case of Fusebill, to Suite 203, 232 Herzberg Road, Kanata, Ontario CANADA, K2K 2A1.
11.8 No Third Party Beneficiaries. This Agreement is made solely for the benefit of You 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.
11.9 Attribution. Unless otherwise set forth on Your Order Form and subject to any usage guidelines that You provide or any pre-approval or authorization that You may require (which You agree not to unreasonably withhold or delay), Fusebill may use Your name (and the corresponding trademark or logo) on the Website and in other promotional and marketing materials to identify You as a Fusebill customer.
Last Updated: May 31, 2017