THESE TERMS OF SERVICE WERE AMENDED ON DECEMBER 1, 2013 TO SEPARATE GENERAL TERMS OF SERVICE FROM BILL PAYMENT TERMS OF SERVICE. THESE TERMS OF SERVICE APPLY TO ALL USERS WHO ACCEPT THEM AND TO USERS WHO CONTINUE TO USE THE Fidesic.com SERVICE AFTER DECEMBER 1, 2013.
GENERAL TERMS OF SERVICE
These General Terms of Service are a legal agreement (the "Agreement") between Fidesic.com, Inc., a Michigan LLC ("Fidesic.com", "we", "us" or "our"), on the one hand, and you and any person or organization for which you act that has a Fidesic.com account (the "Customer"), on the other hand. You represent and warrant that you are of legal age and have the right and authority to enter into this Agreement on your own behalf and on behalf of the Customer, if applicable. By clicking "I Accept" below, you agree that you and the Customer, if applicable, will be bound by the terms of this Agreement. This Agreement incorporates by this reference terms and conditions displayed on the "Web Site," defined below.
1. GENERAL DESCRIPTION OF THE FIDESIC.COM SERVICE
Fidesic.com provides the Fidesic.com service (the "Service") through the Fidesic.com web site at the URL www.Fidesic.com (the "Web Site"). Each Customer may access one or more of the three components of the Service through the Customer’s Fidesic.com account: Accounts Payable, Accounts Receivable, and Console. Sections 2 through 4 of this Agreement set forth the Service Schedule that applies to each of these three components. Section 5 describes Bill Payment, and Section 6 sets forth general terms and conditions.
A Fidesic.com Accounts Payable Customer ("AP Customer") may invite you to create a free Accounts Receivable account, or a Fidesic.com Accounts Receivable Customer ("AR Customer") may invite you to create a free Accounts Payable account. These free accounts enable you to use bill payment with the Customer who invited you, but you will not be able to use the other features described in the Service Schedule.
A Fidesic.com account may have multiple users with different roles, such as Administrator, Approver, Accountant, Clerk, Payer, Staff, or a user-defined custom role. The functions of your role are as set forth in your Customer’s account on the Web Site and in applicable provisions of this Agreement. Each Fidesic.com account must have at least one "Administrator" who may add additional users and designate their roles.
A. Accounts Payable. The Accounts Payable component of the Service includes one or more of the following services:
a. Bill indexing and document management
b. Workflow and approvals
c. Synchronization of data with accounting software ("Sync")
d. Data Entry Service
e. Bill payment (payables, subject to separate Bill Payment Services Agreement)
B. Accounts Receivable. The Accounts Receivable component of the Service includes one or more of the following services:
a. Invoice creation and import
b. Invoice management and customer reminders
c. Bill payment (receivables, addressed in Section 5 below)
C. Console. The Console component of the Service enables finance professionals and others to manage multiple Fidesic.com accounts. A Fidesic.com account may be linked to a Console if the Fidesic.com account was created within the Console or if one of the console users is a user in a Fidesic.com account.
2. FIDESIC.COM ACCOUNTS PAYABLE SERVICE SCHEDULE
These terms and conditions govern use of the Accounts Payable component of the Service and supplement the General Terms and Conditions in Section 6 below.
2.1. BILL INDEXING AND DOCUMENT MANAGEMENT. An AP Customer may authorize one or more users to upload invoices, bills and other statements of account from vendors ("Invoices") to the "Inbox" of the AP Customer’s Fidesic.com account directly through the Web Site or by email or fax, using the email or fax numbers assigned by Fidesic.com.An AP Customer may also authorize vendors to send electronic Bills to the AP Customer’s Fidesic.com account using the email or fax numbers assigned by Fidesic.com. Fidesic.com is not responsible for Bills that are misdirected or not received by Fidesic.com. Each AP Customer should regularly review its Inbox to assure that expected Bills are there. An AP Customer may also authorize one or more users to upload in the same way documents that are not Bills that the AP Customer wishes to store electronically ("Documents"). Without prior notice, Fidesic.com reserves the right to cancel and reassign fax numbers for accounts that have been inactive or for which the "Service Fees" (as defined in Section 6.3 below) are delinquent for thirty (30) days or more.
An AP Customer must designate each item in its Inbox as a new or existing Bill, vendor credit, vendor document or company document and input identifying details (such as vendor name, invoice number, invoice date, due date and amount ("Bill Details")). If an AP Customer elects the Data Entry Service, Fidesic.com will provide the additional assistance described in Section 2.4 below.
2.2. WORKFLOW. An Administrator of a Fidesic.com account may invite persons, such as the AP Customer’s employees or accountant, to establish login access to the Fidesic.com account. The Administrator must define each user’s role, which may include managing vendors, Bills and Documents; approving Bills; managing payments and bank accounts; managing the account and users; accounting; or receivables. In this way, the Administrator can manage how Bills are recorded, approved, and paid by the AP Customer.
2.3. SYNC. An AP Customer may choose to install Fidesic.com software that enables the AP Customer to update the AP Customer’s accounting software program file with the latest payables transactions in Fidesic.com, and synchronizes the list of accounts, classes, and vendors between the AP Customer’s Fidesic.com account and the AP Customer’s accounting software program.An AP Customer can sync with certain online accounting software programs without installing Fidesic.com software.
2.4. DATA ENTRY SERVICE. An AP Customer that is not associated with a Console may elect the Data Entry Service to help process documents in the "Inbox" of the AP Customer’s Fidesic.com account. Alternatively, a Console Customer may elect the Data Entry Service for any Fidesic.com account associated with the Console. Fidesic.com (or its service provider) will enter Bill Details for legible Bills and return Documents to the AP Customer’s "Inbox" for processing by the AP Customer. The AP Customer can then review, edit, approve and pay Bills, apply credits, and organize Documents according to the AP Customer’s internal processes.
2.4.1. Service Limitations. Fidesic.com wants to make your use of Data Entry Service easy and productive. But, Fidesic.com cannot always foresee or prevent technical, human or other difficulties. These difficulties may result in incorrectly entered data, duplicate entries, lost Bills or other errors. Accordingly, the AP Customer agrees to establish internal controls that can detect, correct and compensate for errors and failures of Data Entry Service. If an AP Customer elects the Data Entry Service, the AP Customer expressly agrees that it understands the quality and limitations of Data Entry Service and agrees that they are commercially reasonable in light of the price and the AP Customer’s business needs. The AP Customer retains responsibility for timely and correct payment of its Bills.
2.4.2. Limited Warranty for Data Entry Service. If Fidesic.com makes an error in Data Entry Service, and our error solely and directly results in a bill payment that is less than the amount due or later than the date due, unless otherwise required by law, our liability shall be limited to late penalties incurred and interest on the amount of the underpayment or late payment, calculated from the date due until the date it was actually made or the AP Customer canceled the instructions. We may pay such interest either to the AP Customer or the intended recipient of the transfer, but in no event will we be liable to both parties, and our payment to either party will fully discharge any obligation to the other. If we make an error in Data Entry Service, and our error solely and directly results in a bill payment that is greater than the amount due or earlier than the date due, unless otherwise required by law, our liability shall be limited to interest on the amount of the overpayment or early payment, calculated from the date actually made until the date due. The AP Customer is responsible for obtaining a refund or credit from the recipient for the amount of the overpayment. If we make an error in Data Entry Service and our error solely and directly results in a payment to an unauthorized party, we will be liable to refund the amount of the payment to the AP Customer, subject to the "Limitation of Liability" set forth in Section 6.9 below. If we become liable for interest compensation under this Agreement or applicable law, such interest shall be calculated based on the average federal funds rate at the Federal Reserve Bank in the district where Fidesic.com is headquartered for each day interest is due, computed on the basis of a 360-day year.
If an AP Customer believes the AP Customer is entitled to payment under this warranty, the AP Customer must notify Fidesic.com Customer Support as soon as the AP Customer learns of the error (and in no event later than 30 days after the earlier of when the payment is due or made). The AP Customer must cooperate fully with Fidesic.com’s remediation efforts by contacting the vendor, contacting the AP Customer’s bank, contacting the vendor’s bank, making information or funds available, executing all documents and taking all other actions reasonably requested to correct or mitigate the error.
THE FOREGOING SETS FORTH THE SOLE AND EXCLUSIVE REMEDY AND Fidesic.com’S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO ANY BREACH OF THIS LIMITED WARRANTY.
2.4.3. Warranty Exclusions; Warranty Disclaimer; Limitation of Liability. The Warranty Exclusions, Warranty Disclaimer and Limitation of Liability set forth in Sections 6.7, 6.8 and 6.9 below, as well as the other General Terms and Conditions of Section 6, apply to the Limited Warranty set forth in the preceding Section 2.4.2.
2.5. BILL PAYMENT. Subject to separate Bill Payment Services Agreement.
3. FIDESIC.COM ACCOUNTS RECEIVABLE SERVICE SCHEDULE
These terms and conditions govern use of the Accounts Receivable component of the Service and supplement the General Terms and Conditions in Section 6 below.
3.1. INVOICE CREATION AND IMPORT. An AR Customer may create invoices in the Customer’s Fidesic.com account, or the AR Customer may import invoices from the AR Customer’s Dynamics GP™ accounting software package. In each case, the AR Customer enters the Customer name and other items, which constitute "Invoice Details" for the Accounts Receivable component of the Service.
3.2. INVOICE MANAGEMENT. An AR Customer may send invoices to Customers by email and track them through the Web Site. The Service also enables an AR Customer to send reminders to Customers by email.
3.3. BILL PAYMENT (RECEIVABLES). See Section 5 below.
4. FIDESIC.COM CONSOLE SERVICE SCHEDULE
These terms and conditions govern use of the Console component of the Service and supplement the General Terms and Conditions in Section 6 below.
The Console component of the Service enables finance professionals and others to manage linked Fidesic.com accounts. A Console Customer can elect to have Fidesic.com’s monthly service fees charged to the Console Customer rather than to the linked Fidesic.com accounts. Furthermore, a Console Customer can customize the linked Fidesic.com accounts with the Console Customer’s own logo. Finally, the Console Customer can use the Console to set up Fidesic.com accounts for new clients. A Console Customer that sets up a Fidesic.com account for a client and is not authorized to enter into these Terms of Service on the client’s behalf agrees that the Console Customer, and not the client, will be a party to this Agreement with respect to that account.
5. BILL PAYMENT (RECEIVABLES)
These terms and conditions govern use of the bill payment component of the Service (the "Bill Payment Service") to receive electronic payments and supplement the General Terms and Conditions in Section 6 below. The Bill Payment Service may be used by an AR Customer to receive payments from a third party (a "Customer"), or by a third party (a "Vendor") to receive payments from an AP Customer. In each case, the AP Customer or Customer will enter into a separate Bill Payment Terms of Service. Alternatively, an AP Customer or a Customer may elect to use PayPal or a credit card for bill payment, in which case PayPal’s or the credit card processor’s respective terms and conditions will apply instead. In all cases, the AP Customer or AR Customer is responsible for paying Fidesic.com per transaction fees, as set forth on the Web Site.
5.1. PAYMENT ACCOUNT. To use the Bill Payment Service, each AR Customer and Vendor must enter on the Web Site the bank routing number and bank account number for one or more bank accounts (each a "Payment Account"). When you enter Payment Account information, (1) you represent that you have authority to disclose the Payment Account information and to bind the Payment Account holder, (2) the Payment Account holder authorizes the initiation of debit or credit entries to the Payment Account in accordance with instructions input on the Web Site and, if necessary, the initiation of adjustments for any transactions debited in error, (3) you and the Payment Account holder acknowledge that transactions initiated to the Payment Account must comply with the provisions of U.S. law, and (4) this authorization will remain in effect until the Payment Account holder notifies Fidesic.com Customer Support on the Web Site or in writing to cancel it in such time as to afford Fidesic.com the opportunity to act on it, and (5) neither you nor the Payment Account holder will use the Service for personal, family, or household purposes except in connection with an accounting, bookkeeping, or other advisory business.
5.2. VERIFICATION. Neither you nor any Customer, Customer, or Vendor may participate in the Bill Payment Service if Fidesic.com cannot verify your, the Customer’s, the Customer’s or the Vendor’s (as applicable) identity, financial condition, creditworthiness or other necessary information. You authorize Fidesic.com, directly or through third parties, to make any inquiries they consider necessary to validate your, the Customer’s, the Customer’s and the Vendor’s respective identities, financial condition and creditworthiness. This may include asking for further information, requiring steps to confirm ownership of email addresses and Payment Accounts, ordering a credit report and verifying information against third party databases or through other sources. In addition, you, the Customer, the Customer and the Vendor each agree that Fidesic.com has the right to obtain financial information regarding the Payment Account from a financial institution or from anyone you pay or are paid by through the Service (for example, to resolve payment posting problems or for verification). Notwithstanding any steps taken to verify information hereunder, you hereby represent and warrant that you have the right, power and authority to conduct and authorize transactions you make pertaining to any Payment Account and that all information you provided on the Web Site is complete, accurate and up to date.If you use the Instant Verification Service on the Web Site, you further agree to the terms of Section 5.11 below.
5.3. CUSTOMER SETUP (RECEIVABLES). The AR Customer must provide a correct name and email address for each Customer. The AR Customer represents and warrants to Fidesic.com that information the AR Customer inputs on the Web Site for the Customer is complete and accurately identifies the Customer, and that all Invoices are issued pursuant to a contractual relationship with the Customer pursuant to which funds are owed. The AR Customer further agrees to assist Fidesic.com in verifying its Customers pursuant to Section 5.2 above and agrees that Fidesic.com may refuse to process transactions for any Customer whose identity, financial condition and creditworthiness cannot be verified to Fidesic.com’s satisfaction.
5.4. PAYMENT PROCESSING. You agree that electronic payment transactions will be governed by the Automated Clearinghouse ("ACH") rules as in effect from time-to-time, under which the AP Customer or Customer is an "Originator", the AR Customer or Vendor is a "Receiver", Fidesic.com is a "Third Party Service Provider," and the bank that holds Fidesic.com’s master bank account is the "Originating Depository Financial Institution." Please see www.nacha.org. (NACHA - The Electronic Payments Association, develops operating rules and business practices for the ACH Network and for other areas of electronic payments.)
Fidesic.com reserves the right to debit a Receiver’s account if the ACH debit from an Originator’s Payment Account is returned because of insufficient funds or any other reason. The Originator shall be solely responsible for all penalties, interest charges, late payment fees and service fees resulting from such a debit to the Receiver. In some cases, a Customer may reverse a transaction for up to 180 days after it settled, or an transaction may be invalidated for fraud or some other reason, in which case the funds will be removed from the Receiver’s Payment Account long after initial deposit. You agree at all times to maintain sufficient funds in your Payment Account to satisfy all obligations including returns, reversals, and associated fees, and to add funds immediately if Fidesic.com notifies you that your funds are insufficient.
Fidesic.com may, in its discretion, contact a Customer’s Vendors or Customers regarding any payments to be made, or payments made, by the Customer for any reason.
Fidesic.com reserves the right to suspend or cancel any payments if the Customer’s Fidesic.com account is not in good standing. Fidesic.com will credit back to the Payment Account any debits made to fund cancelled payments; provided, however, the Originator hereby authorizes Fidesic.com, in its sole discretion, to withhold and collect from such amounts any service fees or other amounts owed to Fidesic.com under this Agreement.
Fidesic.com reserves the right to make use of third parties to provide the Bill Payment Service. Fidesic.com may, in its discretion, impose limits on the amount of money sent through the Bill Payment Service and may change those limits from time to time without notice to you. These limits may apply per transaction; per AP Customer, AR Customer, Vendor, or Customer; or on a cumulative basis to any of the foregoing.
In recognition that banks do not make funds available immediately upon check deposit, and credit card processors do not make funds available immediately to merchants on the transaction date, each AR Customer agrees that as between it and its respective Customers, that payments via the ACH will be deemed to have been received on the payment date selected by the Customer for the purposes of determining whether the Customer has made timely payment of an Invoice.
5.5. PROHIBITED PAYMENTS. Fidesic.com may refuse to issue a payment to any Vendor or AR Customer in its reasonable discretion. The Bill Payment Service is not intended for payment of alimony, child support, taxes or other court-directed or government payments, fines or penalties, payments to settle securities transactions or payment in connection with gambling, fraudulent or illegal activities. Fidesic.com will use commercially reasonable efforts to provide notice promptly if it refuses to issue a payment. This notification is not required if an attempt is made to make a payment that is prohibited by law or the Agreement.
5.6. PAYMENT REVIEW. Fidesic.com reviews all payments for risk and for compliance with law, including without limitation anti-money laundering laws and regulations issued by the Office of Foreign Asset Control ("Payment Review"). In its discretion, Fidesic.com may place a hold on a payment for as long as reasonably required to conduct an appropriate inquiry regarding the Customer, Vendor, Customer, Bill, Documents, Invoices, payment history, and other relevant circumstances and factors. Depending on the results of this review, Fidesic.com may clear the payment, reverse the payment, or hold the payment pending instructions from a government agency. At any time, a payment processed through your Payment Account may be reversed.
5.7. TAXES. It is the AR Customer’s and Customer’s responsibility to determine what, if any, taxes apply to all payments made through the Web Site, and to collect, report and remit the correct tax to the appropriate tax authority. Fidesic.com is not responsible for determining whether taxes apply to these payments, or for collecting, reporting or remitting any taxes arising from any payments.
6. GENERAL TERMS AND CONDITIONS APPLICABLE TO THE SERVICE
These General Terms and Conditions apply to users of any component of the Service and to the Bill Payment Service, except where otherwise expressly noted below.
6.1. PASSWORDS AND SECURITY. You shall not give or make available passwords or other means of accessing the Web Site to any unauthorized individuals. If you give someone your email and password, you are authorizing that person to use the Web Site, and you any person or organization for which you act are responsible for all transactions that person performs, even if you did not want them performed, and even if they are fraudulent. For your protection, sign off after every Fidesic.com session and close your browser. You must notify Fidesic.com’s Customer Support immediately upon any suspicion that a password has been lost or stolen or that someone has attempted or may attempt to make payments or otherwise use the Web Site without authorization. Fidesic.com will not have any liability to you for any unauthorized payment or transfer made using your password that occurs before you have notified Fidesic.com of possible unauthorized use and we have had a reasonable opportunity to act on that notice. Accordingly, you should log into your Fidesic.com account regularly and review your transaction history for unauthorized transactions or access. By using the Web Site, you acknowledge and agree that this Agreement sets forth security procedures that are commercially reasonable. You agree to be bound by transactions initiated in compliance with these procedures, whether or not authorized, unless you have given us prior notice of possible unauthorized use as described above and we have had a reasonable opportunity to act on such notice.
6.2.1. HARDWARE AND SOFTWARE REQUIREMENTS. In order to access and retain an electronic record of Communications, you will need: a computer, a monitor, a connection to an Internet service provider, Internet browser software that supports 128-bit encryption, and an email address. By clicking "I Accept" below, you are confirming to Fidesic.com that you have the means to access, and to print or download, Communications.
6.2.2. WITHDRAWAL OF CONSENT. If you later decide that you do not want to receive future Communications electronically, contact Fidesic.com at 2501 N Coolidge Suite 503 East Lansing, Michigan 48910. If you withdraw your consent to receive Communications electronically, we may terminate your use of the Service or the Bill Payment Service.
6.3. FEES. Each Customer shall pay to Fidesic.com the fees and other charges applicable to the Service and the Bill Payment Service, if any, including without limitation monthly service fees, per payment fees, exceptions processing, setup and other special services and as set forth on the Web Site ("Service Fees"). Fidesic.com reserves the right to change the Service Fees from time to time, in its sole discretion. Fidesic.com will post the revised Service Fees on the Web Site or notify Customers by email in advance of the effective date of such changes ("Fee Increase Date"). If the change in Service Fees is not acceptable, Customer’s sole and exclusive remedy shall be to stop using the Service and cancel Customer’s account by notifying Fidesic.com Customer Support prior to the Fee Increase Date. By continuing to use the Service or Bill Payment Service after the Fee Increase Date, Customer accepts all changes in Service Fees. Service Fees are not refundable.
6.4. PAYMENT. You or the Customer, as applicable, hereby authorize Fidesic.com to debit the designated credit or debit card account (as updated from time to time), or the designated Customer bank account (each a "Billing Account") in U.S. Dollars for all Service Fees and applicable Taxes. If Fidesic.com is unable to debit the Billing Account for any reason, all past due Service Fees and Taxes shall be paid within five (5) business days after written demand. Interest shall accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received. Fidesic.com shall be entitled to reimbursement for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
6.5. LICENSE. Subject to the terms and conditions of this Agreement, including payment of all Service Fees, Fidesic.com hereby grants you a personal, limited, non-exclusive, nontransferable license to access and use the software that enables the Service, together with any updates, bug fixes, help content, and other related materials that Fidesic.com provides to you (collectively, the "Software") during the term of this Agreement.
6.5.1. RESTRICTIONS. You shall not, and you shall not enable any third party, to (a) access or attempt to access any other Fidesic.com systems, programs or data that are not available for public use; (b) copy, reproduce, republish, upload, post, transmit or distribute in any way material from the Web Site; (c) work around any technical limitations in the Software, or decompile, disassemble or otherwise reverse engineer the Software except as otherwise permitted by applicable law; (d) perform or attempt to perform any actions that could interfere with the proper operation of the Software or Service, prevent access to or use of the Software or Service by Fidesic.com’s other licensees or customers, or impose an unreasonable or disproportionately large load on Fidesic.com’s infrastructure; or (e) otherwise use the Software except as expressly allowed under this Section 6.5.
6.5.2. RESERVATION OF RIGHTS AND OWNERSHIP. The Software is licensed and not sold, and Fidesic.com retains all rights not expressly granted to you in this Agreement. The Software is protected by copyright, trade secret, and other intellectual property laws. Fidesic.com and its licensors own the title, copyright and other worldwide intellectual property rights in the Software and all copies thereof. This Agreement does not give you any rights in Fidesic.com’s, or its licensors, trademarks or service marks.
6.6. LIMITED WARRANTY FOR THE SERVICE. Fidesic.com warrants to each Customer that the Service will perform substantially in accordance with the description on the Web Site. If the Service does not conform to the foregoing warranty, Fidesic.com shall use commercially reasonable efforts to correct the Service. If Fidesic.com is unable to correct the Service using commercially reasonable efforts, Customer’s sole and exclusive remedy shall be to stop using the Service and cancel the Fidesic.com account by notifying Fidesic.com Customer Support. Except as expressly provided for in Section 2.4.2, the foregoing states Fidesic.com’s sole and exclusive warranty and your and Customer’s sole and exclusive remedy.
6.7. WARRANTY EXCLUSIONS. The limited warranties set forth in Sections 2.4.2 and 6.6 are subject to the following exclusions. Fidesic.com makes no warranty to Vendors or Customers. You and Customer assume sole responsibility and liability for results obtained from the use of the Service. Fidesic.com shall not have any liability for any claims, losses, or damage caused by errors or omissions in any information provided to Fidesic.com in connection with the Service or the Bill Payment Service or any actions taken by Fidesic.com in accordance with directions provided by you or Customer. Fidesic.com shall not have any liability for any claims, losses or damages arising out of or in connection with use of any third-party products, services, software or web sites that are accessed via links on the Web Site. Fidesic.com shall not have any liability for any error or failure that is due to causes beyond its reasonable control, including without limitation, strikes, riots, insurrection, war, military or national emergencies, acts of God, natural disasters, fire, outages of computers or associated equipment, or failure of transportation or communication methods (including the Internet) or power supplies.
6.8. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 2.4.2, 6.6 and 6.7 ABOVE, THE SERVICE IS PROVIDED "AS-IS" WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION OF WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. YOU ASSUME ALL RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICE. Fidesic.com DOESN NOT WARRANT THAT THE SERVICE IS COMPLETELY SECURE OR IS FREE FROM BUGS, INTERRUPTIONS, ERRORS, OR OTHER PROGRAM LIMITATIONS, OR THAT ALL ERRORS WILL BE CORRECTED. Fidesic.com FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Fidesic.com OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
6.9. LIMITATION OF LIABILITY. IN NO EVENT SHALL Fidesic.com BE LIABLE TO YOU OR Customer FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT Fidesic.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. Fidesic.com WILL NOT BE LIABLE FOR ATTORNEYS’ FEES, EXCEPT AS REQUIRED BY LAW.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL FIDESIC.COM’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT OR THE SERVICE EXCEED THE TOTAL FEES PAID TO FIDESIC.COM IN THE TWELVE MONTH PERIOD PRECEDING THE EVENTS THAT GAVE RISE TO SUCH LIABILITY, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
6.10. INDEMNITY. Except as may be limited by applicable law, you and Customer agree to indemnify and hold Fidesic.com, its vendors and distributors (and their respective officers, directors, employees and representatives) harmless (including payment of reasonable attorney's fees) against any and all liability to third parties arising out of, or in connection with, your or Customer’s use of the Service or the Bill Payment Service, any actions taken by Fidesic.com pursuant to your or Customer’s instructions, or your or Customer’s breach of this Agreement.
6.11. ACKNOWLEDGEMENT. The parties acknowledge that the limitations and exclusions contained in Section 6 and elsewhere in this Agreement represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement and the Service Fees paid hereunder. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, LIABILITY OR CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY.
6.12. TERMINATION. The Customer may terminate the Service at any time by submitting an account cancellation request through the Web Site or by contacting Fidesic.com Customer Support, provided that all payments in Customer’s Fidesic.com account have cleared. Fidesic.com may terminate the Service or the Bill Payment Service at any time, for any reason (including failure to pay Service Fees or inactivity). Fidesic.com will try to notify you in advance, but is not obliged to do so. If Customer cancels the Service, all accrued Service Fees will be immediately due and payable, including pro-rated monthly fees for the month of termination. Fidesic.com may maintain copies of data, Bills and Documents that Customer entered while using the Service. Fidesic.com may, in its sole discretion, permit Customer to continue accessing Customer’s data, Bills and Documents through the Service for a limited period of time after termination. Customer may request Fidesic.com’s assistance in obtaining a copy of Customer’s data, Bills and Documents by notifying Fidesic.com within sixty (60) days following Service termination. Thereafter, Fidesic.com may destroy or otherwise dispose of any such data, Bills or Documents in its possession. Fidesic.com will invoice Customer for the cost of returning the data, Bills and Documents at Fidesic.com’s then-current rates.
6.13. NOTICES. Fidesic.com may give notice by means of a general notice on the Web Site, electronic mail to the e-mail address on record in Fidesic.com’s account information or by first class mail to the address of record in Fidesic.com’s account information. Such notice shall be deemed given immediately upon posting to the Web Site, six (6) hours after sending by electronic mail, or forty-eight (48) hours after sending by first class mail. Except as provided herein, you or Customer may give notice to Fidesic.com by confirmed facsimile or delivery by nationally recognized overnight delivery service or first class mail to Fidesic.com as specified on the Web Site. Such notice shall be deemed given when received by Fidesic.com.
6.14. CHANGES TO AGREEMENT. Fidesic.com reserves the right to modify the terms and conditions of this Agreement and its policies relating to the Service at any time, in its sole discretion. Fidesic.com will post the revised terms and conditions of the Agreement or policies on the Web Site and provide notice in advance of the effective date of such changes ("Amendment Date"). If the revised terms and conditions or policies are not acceptable, your sole and exclusive remedy shall be to stop using the Service and to cancel your account through the Web Site or by notifying Fidesic.com Customer Support prior to the Amendment Date. Continuing to use the Service and failing to cancel your account after the Amendment Date constitutes acceptance of the revised terms and conditions of the Agreement. Except as expressly provided herein, this Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
6.15. GENERAL. The Agreement and all matters arising out of or relating to the Agreement shall be governed by the laws of the State of Michigan, without regard to its conflict of law provisions. Any legal action or proceeding relating to the Agreement shall be brought exclusively in the state or federal courts located in the Northern District of Michigan. You, Customer, and Fidesic.com hereby agree to submit to the exclusive jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding. The United Nations Convention on Contracts for the International Sale of Goods will not apply. The waiver of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach. Except as expressly set forth in the Agreement, the exercise of any remedy under the Agreement will be without prejudice to other remedies available under the Agreement or otherwise. In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect. You, Customer, and Fidesic.com each agree to comply with all applicable laws and regulations with respect to its respective activities hereunder, including without limitation any export laws and regulations of the United States. Nothing in the Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. The Agreement is intended for the sole and exclusive benefit of the parties thereto and is not intended to benefit any third party. The Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning such subject matter. The headings in the Agreement are for convenience of reference only and have no legal effect. You may not assign or transfer the Agreement, in whole or in part, without Fidesic.com’s written consent. Any attempted assignment or transfer in violation of this Section 6.15 will be null and void. Fidesic.com may assign its rights or delegate its obligations hereunder without consent. Subject to the foregoing restrictions, the Agreement shall inure to the benefit of the successors and permitted assigns of the parties.