Terms of Service
billAnywhere is a service of PHENOMENA TECHNOLOGIES INC.
THIS AGREEMENT is made and entered into between PHENOMENA TECHNOLOGIES INC. ("PHENOMENA TECHNOLOGIES INC.") and the SUBSCRIBER ("SUBSCRIBER") with respect to the service known as billAnywhere ("billAnywhere") which is owned by PHENOMENA TECHNOLOGIES INC. and which is a computer on-line service in which SUBSCRIBER shall have the right to operate its own system. Subject to the terms and conditions of this Agreement, PHENOMENA TECHNOLOGIES INC. authorizes SUBSCRIBER to access and utilize billAnywhere throughout the term of this Agreement.
1. billAnywhere. Throughout the term of this Agreement, SUBSCRIBERS shall be permitted to provide password access to billAnywhere to that number of users ("USERS") for which Subscriber has paid the required fee in order for USERS to perform such activities as creating invoices, sharing files, sending e-mails and managing staff and clients and such other lawful purposes as billAnywhere permits. PHENOMENA TECHNOLOGIES INC. may, without advance notice or liability, add, discontinue, or revise any aspect of billAnywhere, including, without limitation, such aspects as scope of service, availability of service, time of service availability, or the hardware and/or software required for SUBSCRIBER to access and use billAnywhere, subject to the terms and conditions of this Agreement.
2. SUBSCRIBER Equipment and Remote Connect Charges. SUBSCRIBER shall be responsible for obtaining and maintaining, at its own expense, all computer hardware, software, communication equipment, internet access accounts and access lines necessary to access and utilize billAnywhere.
3. User Passwords and Use Thereof. All USERS will be responsible for maintaining the confidentiality of their passwords and SUBSCRIBER will be responsible for all activities and charges resulting from the use of their edition of billAnywhere, including unauthorized use.
4. Conduct of SUBSCRIBER. SUBSCRIBER agrees that all USERS authorized by SUBSCRIBER to access billAnywhere shall use billAnywhere only for lawful purposes. SUBSCRIBER and its USERS will not post or transmit on or through billAnywhere any libelous, obscene, or otherwise unlawful information of any kind, and they will not engage in any conduct involving billAnywhere that would constitute a criminal offense or give rise to civil liability under any local, provincial, state, federal or other law or regulation and SUBSCRIBER and its USERS will not upload, post, reproduce or distribute to or through billAnywhere any material protected by copyright, privacy or other proprietary right without first obtaining the written permission of the owner thereof. Any complaint with regard to "SPAM" may result in the immediate termination of Subscribers access to billAnywhere. SUBSCRIBER acknowledges that billAnywhere, billAnywhere software and software accessible through billAnywhere contain copyrighted and other proprietary and confidential information and material, and SUBSCRIBER and its USERS will respect all such proprietary rights and take such precautions as may be reasonably necessary to protect private, confidential and other proprietary information and material from unauthorized use or disclosure.
5. Accuracy and Validity of Information and Opinions. PHENOMENA TECHNOLOGIES INC. will make a reasonable effort to ensure that information it contributes to billAnywhere is timely and accurate. However, PHENOMENA TECHNOLOGIES INC. does not endorse or warrant and assumes no responsibility whatsoever for the timeliness, accuracy, reliability, completeness or usefulness of any statement, opinion, advice, service or other information contributed to billAnywhere.
6. Monitoring of billAnywhere. PHENOMENA TECHNOLOGIES INC. may, in its discretion, monitor billAnywhere and SUBSCRIBERS and USER'S use thereof to determine and ensure compliance with this Agreement and to protect itself and other USERS of billAnywhere from fraudulent, unlawful, dangerous or abusive use of billAnywhere. PHENOMENA TECHNOLOGIES INC. may also intercept and disclose any content, record, use or other information to the extent reasonably necessary to protect the rights of PHENOMENA TECHNOLOGIES INC., for mechanical or service quality control as permitted by law, or to comply with any law, regulation, or governmental request. PHENOMENA TECHNOLOGIES INC. may also, in its discretion, review, edit, refuse to post or remove any material or information submitted or transmitted to billAnywhere. PHENOMENA TECHNOLOGIES INC. will not, however, intentionally intercept or disclose any private e-mail message unless required or permitted by law to do so, and PHENOMENA TECHNOLOGIES INC. shall be under no obligation to monitor, review, screen, edit or otherwise control any information or material contributed to billAnywhere.
7. billAnywhere Licenses. PHENOMENA TECHNOLOGIES INC. hereby grants to SUBSCRIBER a non-exclusive, non-transferable license to use billAnywhere and to have its USERS use billAnywhere in accordance with the terms and conditions of this Agreement. SUBSCRIBER agrees to respect the copyright and other proprietary rights of third party licensors of billAnywhere and to abide by the terms of license agreements applicable thereto and to ensure that its USERS also abide by the terms of license agreements applicable thereto.
7.1 Throughout the term of this Agreement, SUBSCRIBER and its USERS may use billAnywhere solely for the purpose for which it is intended and SUBSCRIBER may use billAnywhere for the number of USERS for which SUBSCRIBER has paid the applicable fee to PHENOMENA TECHNOLOGIES INC.
7.2 PHENOMENA TECHNOLOGIES INC. is the copyright owner of billAnywhere. The technical procedures, processes, methods of operation, and concepts which are embodied within billAnywhere are trade secret information of PHENOMENA TECHNOLOGIES INC. and/or its licensor(s). This license is not a sale of a copy of billAnywhere and does not render SUBSCRIBER or its USERS the owner of a copy of billAnywhere. Ownership of billAnywhere and all components and copies thereof shall at all times remain with PHENOMENA TECHNOLOGIES INC. and its licensor(s), regardless of who may be deemed the owner of the tangible media in or on which billAnywhere may be copied, encoded or otherwise fixed. However all data and files submitted by SUBSCRIBER and its USERS to billAnywhere shall at all times be the property of SUBSCRIBER.
7.3 SUBSCRIBER and its USERS may not make any copies of billAnywhere. SUBSCRIBER will make all reasonable efforts to prevent any unauthorized copying of billAnywhere or disclosure or use of PHENOMENA TECHNOLOGIES INC.'s or any third party licensor's trade secret information, and SUBSCRIBER will advise its USERS who are permitted access to billAnywhere of he restrictions upon duplication, reverse engineering, disclosure and use contained in this Agreement. SUBSCRIBER will be liable for any unauthorized copying, reverse engineering, disclosure and/or use by its USERS, employees or agents.
7.4 SUBSCRIBER will not lease, rent, sell, pledge, assign, sublicense, loan or otherwise transfer to any third party any part of billAnywhere or any copy thereof or any of SUBSCRIBER'S rights under this Agreement without the prior written consent of PHENOMENA TECHNOLOGIES INC.
7.5 Subject to the limitations of paragraph 11, PHENOMENA TECHNOLOGIES INC. will indemnify SUBSCRIBER and hold SUBSCRIBER harmless against costs, expenses and liabilities upon any claim by any third party that billAnywhere infringes or violates any copyright, trademark or trade secret rights of such third party, provided that: a) SUBSCRIBER notifies PHENOMENA TECHNOLOGIES INC. within seven (7) days in writing of any notice of any such claim; b) SUBSCRIBER cooperates with PHENOMENA TECHNOLOGIES INC. in all reasonable respects in connection with the investigation and defense of any such claim; c) PHENOMENA TECHNOLOGIES INC. shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; and d) should billAnywhere become, or in PHENOMENA TECHNOLOGIES INC.'s opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, SUBSCRIBER will permit PHENOMENA TECHNOLOGIES INC., at PHENOMENA TECHNOLOGIES INC.'s option and expense, either to: i) procure for SUBSCRIBER the right to continue using billAnywhere, ii) replace or modify the same so that it becomes non-infringing; or iii) terminate this license insofar as the use of billAnywhere is concerned, and refund to SUBSCRIBER the proportionate amount of prepayment fee paid to PHENOMENA TECHNOLOGIES INC. for the period for which such payment has not been earned. Notwithstanding anything herein to the contrary, however, PHENOMENA TECHNOLOGIES INC. shall have no obligation or liability to SUBSCRIBER under any provision of this paragraph if any copyright, patent or trademark infringement or trade secret misappropriation claim is based upon the use of billAnywhere in a manner other than that for which it was furnished by PHENOMENA TECHNOLOGIES INC. or upon any modification by or for SUBSCIBER, in such a way as to cause it to become infringing.
7.6 If billAnywhere does not conform to and perform substantially in accordance with PHENOMENA TECHNOLOGIES INC.'s specifications, PHENOMENA TECHNOLOGIES INC. will endeavor to correct any failure of billAnywhere to so conform or perform; provided that: a) SUBSCRIBER gives PHENOMENA TECHNOLOGIES INC. written notice of any such claimed failure to so conform or perform within said fifteen (15) day period of the effective date; and b) such failure to so conform or perform is not, in PHENOMENA TECHNOLOGIES INC.'s reasonable opinion, a result of any modification of or damage to billAnywhere or its operating environment or of SUBSCRIBER and its USER'S failure to operate billAnywhere in the proper hardware and software environment. SUBSCRIBER'S sole and exclusive remedy for breach of the foregoing warranty shall be that: a) PHENOMENA TECHNOLOGIES INC. will endeavor to correct within a reasonable time any reported failure of billAnywhere to substantially conform to or perform substantially in accordance with PHENOMENA TECHNOLOGIES INC.'s specifications; or b) in the event that PHENOMENA TECHNOLOGIES INC. shall fail or be unable for any reason to correct any failure of billAnywhere to substantially conform to or perform substantially in accordance with PHENOMENA TECHNOLOGIES INC.'s specifications, SUBSCRIBER may terminate this license and cease using billAnywhere, and PHENOMENA TECHNOLOGIES INC. will refund to User the full amount of any license fee paid to PHENOMENA TECHNOLOGIES INC. from the date any error is reported.
8. On-line Software Updates. PHENOMENA TECHNOLOGIES INC. may, when feasible, remotely update any version of billAnywhere, either with or without notice to SUBSCRIBERS or its USERS. Such updates may occur automatically or may occur pursuant to prompts which appear on SUBSCRIBERS or its USERS terminal screen during use of billAnywhere. Any updated version of billAnywhere furnished to SUBSCRIBER by PHENOMENA TECHNOLOGIES INC. will be subject to all of the same terms and conditions of this license or other license agreement applicable to the version being replaced. billAnywhere may send email communications and intersystem messages to SUBSCRIBERS explaining new features of the billAnywhere software and other news concerning PHENOMENA TECHNOLOGIES INC.
9. billAnywhere Help Desk. Throughout the term of this Agreement, PHENOMENA TECHNOLOGIES INC. will maintain e-mail support help desk to assist paying SUBSCRIBERS in their use of billAnywhere as posted on www.billAnywhere.com.
10. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED ABOVE, billAnywhere, AND INFORMATION AVAILABLE THROUGH billAnywhere ARE FURNISHED BY PHENOMENA TECHNOLOGIES INC. AND ACCEPTED BY USER "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. PHENOMENA TECHNOLOGIES INC. DOES NOT WARRANT THAT billAnywhere, OR INFORMATION OBTAINED THROUGH billAnywhere WILL MEET SUBSCRIBER'S REQUIREMENTS, THAT THE OPERATION OF billAnywhere OR billAnywhere WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL FAILURES OF THE billAnywhere TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH PHENOMENA TECHNOLOGIES INC.'S SPECIFICATIONS WILL BE CORRECTED. EXCEPT AS EXPRESSLY PROVIDED ABOVE AND IN SUCH WARRANTIES, IF ANY, AS MAY BE PROVIDED BY THIRD PARTY VENDORS OF EQUIPMENT OR SOFTWARE UTILIZED IN CONNECTION WITH billAnywhere, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF billAnywhere, AND INFORMATION OBTAINED THROUGH billAnywhere IS WITH SUBSCRIBER.
11. LIMITATION OF PHENOMENA TECHNOLOGIES INC. LIABILITY. IN NO EVENT WILL PHENOMENA TECHNOLOGIES INC. BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INFORMATION, PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED BY PHENOMENA TECHNOLOGIES INC. UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF PHENOMENA TECHNOLOGIES INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF PHENOMENA TECHNOLOGIES INC. UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INFORMATION, PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY PHENOMENA TECHNOLOGIES INC. UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID TO PHENOMENA TECHNOLOGIES INC. BY SUBSCRIBER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL OPERATE TO RELIEVE PHENOMENA TECHNOLOGIES INC. FROM LIABILITY FOR ITS OWN WILLFUL OR WANTON RECKLESSNESS OR INTENTIONAL TORTS.
12. Throughout the Term of this agreement and for a period of one and one half years from the date of its termination, SUBSCRIBER, or any of its USERS, shall not develop a service or software that competes with, or is similar to, billAnywhere without the express written approval of PHENOMENA TECHNOLOGIES INC. directors.
13. Term and Termination. This Agreement shall be effective immediately and shall continue in effect on a month-to-month basis until terminated as provided herein. Either party may, at its election and in its sole discretion, terminate this Agreement as of the end of any calendar month by written notice to the other party at least thirty (30) days prior to the effective date of termination. SUBSCRIBER may, at its option, terminate this Agreement effective immediately by written notice to PHENOMENA TECHNOLOGIES INC. within thirty (30) days following the date on which access to billAnywhere first becomes available to SUBSCRIBER. PHENOMENA TECHNOLOGIES INC. may, at any time, terminate this Agreement and/or terminate SUBSCRIBER'S access to any or all of billAnywhere without advance notice if SUBSCRIBER or anyone of its authorized USERS commit any violation of paragraphs 4 or 7 above. Upon termination of this Agreement, SUBSCRIBER will immediately cease and desist from using billAnywhere.
14. billAnywhere Access and Service Fees. SUBSCRIBER will pay to PHENOMENA TECHNOLOGIES INC. implementation charges as posted on www.billAnywhere.com or as agreed to from time to time. Throughout the term of this Agreement, SUBSCRIBER will pay PHENOMENA TECHNOLOGIES INC. a monthly fee determined in accordance with fee schedules established by PHENOMENA TECHNOLOGIES INC. for billAnywhere from time to time as posted at www.billAnywhere.com. SUBSCRIBER will also pay or reimburse PHENOMENA TECHNOLOGIES INC. for all sales, use, excise, and other taxes and governmental charges including GST (other than income taxes) which PHENOMENA TECHNOLOGIES INC. is at any time required to pay or collect in connection with the furnishing of billAnywhere under this Agreement. SUBSCRIBER's credit card will be charged for the monthly fees and other charges to be paid under this Agreement. PLEASE NOTE credit card statements will indicate that charges are paid to PHENOMENA TECHNOLOGIES INC. Payment terms of all charges by PHENOMENA TECHNOLOGIES INC. to SUBSCRIBER under this Agreement are net thirty (30) days from date of charge. Any amount not paid when due will accrue a finance charge at the rate of two percent (2%) per month (26.82% per year), or the highest rate permitted by law, whichever is less, until fully paid.
15. Change in Monthly Fees. PHENOMENA TECHNOLOGIES INC. may change the amount of the monthly basic service and other fees to be paid by SUBSCRIBER by giving at least forty-five (45) days prior written notice thereof to paying SUBSCRIBER.
16. Financial Information. All financial information submitted via billAnywhere by SUBSCRIBER shall at no time be the responsibility of PHENOMENA TECHNOLOGIES INC. in any fashion whatsoever and may be shared with such financial institution as may be required.
17. Credit Card Information. PHENOMENA TECHNOLOGIES does not store the credit card information of USERS UNLESS the SUBSCRIBER inputs credit card data into their USERS account. To safeguard credit card information, PHENOMENA TECHNOLOGIES uses 128 bit SSL certificates to encrypt data during transfer between web browsers and the PHENOMENA TECHNOLOGIES databases. PHENOMENA TECHNOLOGIES is not responsible for the security of any credit data and SUBSCRIBERS indemnify and save harmless PHENOMENA TECHNOLOGIES from any claim or demand resulting from the theft or loss of any credit card information. Credit card data is provided by the SUBSCRIBERS and their USERS of PHENOMENA TECHNOLOGIES who are responsible for its protection.
18. Manner of Giving Notice. Any notice required or permitted under this Agreement may be by e-mail properly addressed to the intended recipient. Notice under paragraph 14 may also be given by posting bulletins on www.billAnywhere.com.
19. Non-Waiver. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
20. Severability and Choice of Law. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect. This Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws applicable in the Province of Ontario, Canada, and the parties hereto irrevocable submit to the exclusive jurisdiction of the courts of the Province of Ontario.
21. Assignment and Binding Effect. PHENOMENA TECHNOLOGIES INC. may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations hereunder to any person or entity. SUBSCRIBER may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of PHENOMENA TECHNOLOGIES INC.. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
22. Entire Agreement. This Agreement sets forth the entire agreement and understanding between PHENOMENA TECHNOLOGIES INC. and SUBSCRIBER regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. This Agreement may not be modified or amended except by a writing signed by the party against whom the same is sought to be enforced.
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