Terms of Service
Last Updated: Mar 04, 2024
1. Introduction
These Terms of Service, together with our Privacy Policy (collectively, “TOS”), govern Customer’s access to and use of our products and services, including Power Reconcile, Power PDF Filler, Power GPT for Microsoft Excel, and Data Buddy for Microsoft Excel.
“Fillextract,” “we,” or “us” refers to the Company.
“Customer” means you, the individual or entity on whose behalf you are agreeing to these TOS, or the entity identified in the applicable Order (as defined below). You represent and warrant that you have the legal authority to bind the Customer to these TOS.
2. Acceptance
BY ACCESSING OR USING THE WEBSITE AND/OR ANY SERVICES (AS DEFINED BELOW) AND/OR BY ENTERING INTO AN ORDER (AS DEFINED BELOW), CUSTOMER ACKNOWLEDGES THAT THEY HAVE READ, UNDERSTOOD, AND AGREED TO BE LEGALLY BOUND BY THESE TOS, INCLUDING THE PRIVACY POLICY. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, THEY SHOULD NOT USE THE WEBSITE, ENTER INTO AN ORDER, OR USE THE SERVICES. CUSTOMER UNDERSTANDS THAT THESE TOS CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN THE COMPANY AND THE CUSTOMER.
The TOS take effect on the earliest of: (i) Customer’s visit to the Website, (ii) Customer’s registration for the Products/Services, or (iii) the effective date set forth in a signed written Order or quote between the Customer and Company (“Order”). All Orders form part of these TOS. If there is a conflict between documents forming the TOS, the order of precedence is: Privacy Policy, the applicable Order, then these TOS.
Products and services are only available to individuals who (a) are at least sixteen (16) years old, and (b) have the legal capacity to enter into these TOS on their own behalf or on behalf of their organization. Customer represents they have such authority.
Customer may use the Website and Services only as permitted under these TOS, unless a separate written agreement signed by both parties explicitly overrides these TOS. Additional terms added by Customer in any order form do not become part of the Order. Customer agrees to comply with all applicable laws and regulations in using the Website and Services.
Although the Products and Services may be accessed worldwide, the Company does not guarantee their appropriateness or availability in all jurisdictions, and accessing them where prohibited by law is forbidden.
If the Order allows Customer’s Affiliates to use the Services, Customer shall (i) provide Affiliates with these TOS, (ii) ensure their compliance, and (iii) be responsible for any breaches by Affiliates. “Affiliate” means any entity controlling, controlled by, or under common control with Customer, where “control” means ownership of 50% or more of voting interests.
3. Products and Services
“Products and Services” or “Services” refer to any products or services provided by the Company from time to time. Customer must maintain a reliable high-speed internet connection to connect securely to the Services using current encrypted protocols.
Use of the Services is limited to authorized users (“Permitted Users”).
ALL RIGHTS TO CONTENT AVAILABLE THROUGH THE PRODUCTS AND SERVICES ARE RESERVED BY THE COMPANY. TO THE EXTENT PERMITTED BY LAW, THE PRODUCTS, SERVICES, AND CONTENT ARE PROVIDED “AS IS.”
THE COMPANY IS NOT LIABLE FOR ANY DAMAGES OR LOSSES RESULTING FROM USE OF THE PRODUCTS, SERVICES, OR CONTENT. USE IS AT CUSTOMER’S SOLE RISK.
4. Customer Responsibilities
To use the Services, Customer or Permitted Users must complete registration, providing User Data such as name, email, and password, or linking third-party accounts (e.g., Microsoft, Google) as detailed in our Privacy Policy (“Account”). Customer and Permitted Users must provide accurate information and not misrepresent their identity.
Customer is solely responsible for: (i) Permitted Users’ activities, (ii) unauthorized users accessing the Services through Customer’s credentials or equipment, (iii) accuracy of User Data, and (iv) Customer Content, including its legality, accuracy, and security.
Customer must keep Account credentials secure and notify the Company immediately of any unauthorized access or breach. Customer releases the Company from liability related to unauthorized Account use.
Customer must report security vulnerabilities or issues that might allow unauthorized data access, impersonation, or bypassing Service controls.
Customer is solely responsible for the legality, quality, and source of Customer Content, warranting it complies with applicable laws and required consents.
“User Data” means any information identifying a Customer (if a natural person) or Permitted Users, such as names and emails, provided solely for Service access.
“Customer Content” includes User Data, other content uploaded or provided in connection with the Services, and results or outputs generated by the Services.
5. Customer Content
Customer or its licensors retain ownership of all Customer Content. Customer grants the Company and its service providers permission to access and use Customer Content solely to provide the Services and Website, as described in these TOS.
Customer is responsible for ensuring all Customer Content is lawful and appropriate and complies with applicable laws including import/export, intellectual property, and data protection regulations. Customer guarantees that Customer Content is not defamatory, fraudulent, illegal, or harmful, and does not contain viruses or harmful code, or disrupt the Services or Website.
While the Company may monitor Customer Content, it is the Customer’s responsibility to ensure compliance and address any claims regarding content violations.
6. Company Ownership and License
The Company and its licensors retain all rights, title, and interest in and to the Services, Website, and all related intellectual property, including copyrights, trademarks, service marks, logos, and any modifications or derivatives thereof. These TOS do not grant Customer any rights to use the Company’s intellectual property.
The Company may collect and use anonymous, aggregated data derived from Customer’s use of the Services for legitimate business purposes.
In exchange for compliance with these TOS and payment of fees, the Company grants Customer a limited, non-exclusive, non-transferable, revocable license to use the Services and associated software for internal business purposes only (“License”).
7. Personal Data
Company respects its Website users’ and Permitted Users’ privacy and the privacy of all data subjects whose personal data may be included in the User Data, and is committed to protect their personal data shared with us, as further detailed in our Privacy Policy:
Our policy and practices and the type of information collected with respect to personal data collected from Users, and processed with respect to, are described in detail in our Privacy Policy at https://fillextract.com/privacy-policy/.
All of the above-mentioned policies are incorporated herein by reference. Customers, Website users, and Permitted Users that intend to access or use the Website or Services must first read and agree to the applicable Privacy Policy.
Customers hereby agree, acknowledge and represent that: (a) it is prohibited from uploading to the Services or otherwise transferring Company or exposing the Company to any personal data relating to children under the age of 16 and/or “special categories of personal data” (as defined under applicable data protection laws) without the Company’s prior written approval; (b) to the extent that per the Company’s approval, the Customer transfers or exposes such data to Company, then it is the Customer’s responsibility to ensure that such transfer is done in accordance with applicable privacy laws, including the GDPR, and where required, the Customer shall notify Company prior to any such processing activities regarding any additional obligations that may impose on Company with respect to such processing, if any; and (c) if required by applicable privacy laws, it was granted all applicable consents to process such data.
Where the Customer intends to upload Customer Content which is subject to the GDPR, the Customer must notify Company of such, by informing Company’s representative team via support@fillextract.com.
8. Fees
Access to the Services is subject to a subscription to a payment plan, in accordance with the payment model specified in our products page.
Company reserves the right to modify the fees and prices for its Services at any time and at its sole discretion. Such pricing changes will NOT affect the Customer’s remaining period of the then in-effect Term.
Payments of Subscription fees may be processed via certain online payment service providers, such as Stripe (“Online Payment Processors”). Company may add or change the Online Payment Processors at its sole discretion. The Online Payment Processors enable Customer to send payments securely online using a credit card, debit card or bank account.
Company does not control and is not affiliated with such Online Payment Processors. These Online Payment Processors are independent contractors and have no employment or agency relationship with Company. Company is not responsible in any way for the actions or performance (or lack thereof) of the Online Payment Processors.
The use of the Online Payment Processors is at Customer’s own risk. It is the Customer’s responsibility to abide by all the terms specified by the Online Payment Processors in their terms of use and privacy policies. Customer acknowledges that it is fully assuming the risks of conducting any transactions via the Online Payment Processors.
9. Third-Party Services
Certain parts of the Services may be provided by third-party service providers (“Third Party Services”). Subject to applicable law, Company may, in Company’s sole discretion, retain and replace Third Party Services and third-party service providers from time to time.
10. Term
The License for the paid Services shall commence as of the starting date detailed in the applicable Order and will be in effect for the term specified in the Order (“Term”). At the end of each Term, the Services shall be automatically renewed for an additional Term, unless User canceled the subscription through our Services, or either party requests in writing, such request shall be furnished no later than 30 days prior to the end of the respective Term. The Term for non-payment Services signed up for on the Website and not through an Order shall commence when Customer first accesses the Services via the Website, and shall continue until terminated by either Party in accordance with Section 11 below.
11. Termination of the Services
Customer may terminate the Services by (i) canceling the subscription through our Services; or (ii) providing written notice to Company at support@fillextract.com.
Once written notice is received, the termination will take effect upon the last day of the Term, unless provided otherwise in the applicable Order in which case such provisions will prevail.
Notwithstanding any other term in the TOS, Company may terminate non-payment Services at any time and for any reason.
In addition, Company may terminate provision of the Website and/or Services immediately and without liability upon providing notice to Customer: (i) if Company believes that Customer has violated any provision of the TOS or applicable law, (ii) if Company is threatened with a legal claim related to the provision of the Website and/or Services, (iii) if Company’s relationship with a third party service provider terminates or requires Company to modify, suspend or terminate the Website and/or Services, (iv) if Company believes providing the Website and/or Services could create a substantial or unreasonable economic or technical burden or security risk, (v) in order to comply with applicable law or requests of governmental or administrative entities, or (vi) if Company determines that the use of the Website and/or Services by Customer or Company’s provision of any of the Services has become impractical or unfeasible.
Without limiting the foregoing, Company reserves the right, at its sole discretion, at any time to modify, improve, correct or discontinue, temporarily or permanently, the Services or any part thereof, with or without notice.
If Company at its discretion chooses to cease providing the current version of the Website and/or Services or any of its features and/or specific functions, whether through discontinuation of the Website and/or Services or by upgrading or downgrading the Website and/or Services to a newer version, Customer may not be able to continue using the previous version of the Website and/or Services.
Customer understands and agrees that features and/or functions of previous Services versions might be removed in future versions thereof, and that Company shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Services.
The sole remedy of Customer in the event of termination by Company in accordance with this Section 11 is to receive a pro-rated refund of any pre-paid Fees for the remainder of the applicable Term.
12. Effect of Termination
Upon termination of the Term or the provision of the Website and/or Services, Customer’s License will end, all of Customer’s rights to use the Website and/or Services shall terminate, and Customer will no longer have access to any Customer Content and/or evaluations, that were posted, uploaded or otherwise transmitted to the Services.
Without limiting the generality of the foregoing, the provisions of Customer Responsibility, Customer Content, Company’s Ownership, Responsibility for Customer Content, Fees and Interest, Termination of the Services, Representations and Warranties, Open Source Software, Use Restrictions, Suggestions, Third Party Links, Confidentiality, Disclaimer of Warranties, Limitation of Liability and Indemnification shall survive termination of the provision of the Website and/or Services for any reason.
CANCELLING OR TERMINATING THE ACCOUNT MAY CAUSE THE LOSS OF CERTAIN INFORMATION YOU PROVIDED TO Company (INCLUDING THE CUSTOMER CONTENT) AND/OR THE CAPACITY OF THE ACCOUNT. Company DOES NOT ACCEPT ANY LIABILITY FOR SUCH LOSS.
13. Representations and Warranties
Customer represents and warrants to Company that:
(i) Customer has the requisite power and authority to enter into the TOS and to perform all of its obligations under the TOS.
(ii) all Account information Customer has provided Company for the purpose of receiving the Services is complete and accurate, and Customer shall update its Account information to maintain the completeness and accuracy thereof throughout the Term.
(iii) if Customer makes use of software not provided by Company, Customer has a valid written license agreement permitting Customer to use such software in connection with the Services and Customer shall bear all liability for all damage in connection with Customer’s use of any such software, including damage to the Services.
(iv) Customer is and will remain throughout the Term in compliance with all applicable law, including without limitation all applicable data protection, privacy, and intellectual property laws, relating to its use of the Customer Content, Services and Website.
(v) Customer shall not allow the use of and/or access to the Services by third parties or anyone other than its employees whose duties require such access or use and its authorized consultants and subcontractors (excluding any direct competitors of Company), while such access will be permitted only where such use is required as part of their performance of services on the Customer’s behalf.
(vi) Customer shall bear full responsibility for any harm caused to Company for breach of the terms of the license by Customer’s Permitted Users.
Company represents and warrants to Customer that Company has the requisite power and authority to enter into the TOS and to perform all of its obligations under the TOS.
14. Use Restrictions
Customer may use the Website and/or Services solely for its own internal use and as expressly permitted by the TOS. Customer shall not, will not attempt to, and will not allow third parties to:
(i) modify, alter, tamper with, repair, or create derivative works of any part of the Website and/or Services,
(ii) reverse engineer, disassemble, decompile, or translate the Website and/or Services or apply any other process or procedure including for the purpose of deriving or attempting to derive the source code of any software included in the Website and/or Services,
(iii) create multiple Accounts to simulate or act as a single Account or otherwise access the Services in a manner intended to avoid incurring Fees or otherwise breach the TOS,
(iv) resell, sublicense, or otherwise allow a third party’s access to the Services,
(v) copy any ideas, features, functions or Content of the Website and/or Services, or use the Website and/or Services to create a competitive product or service,
(vi) remove, alter or obscure any identification, attribution, or other proprietary notices contained on or within the Services or the Website,
(vii) monitor the Website and/or Services for any purpose, including without limitation its availability, performance or functionality,
(viii) gain or attempt to gain unauthorized access to Company’s systems or network,
(ix) publish, post, upload or otherwise transmit to the Website and/or Services any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any systems, data, personal information or property, or
(x) publish or disclose to any third party any reviews, testing information or comparisons with respect to the Service without the Company’s prior written consent. Customer shall be fully responsible for its Permitted Users’ adherence to the TOS.
As a condition to making the Services available to Customer, Customer undertakes that it will not assert, authorize, assist or encourage any third party to assert against Company or its licensors, affiliates or users, any infringement or other claim in connection with the Website and/or Services. Except for the express rights granted herein, Company does not grant, and Customer does not receive, any other rights, express or implied.
15. Suggestions
Should Customer provide Company with any ideas, feedback or suggestions regarding the Services and/or the Website (“Suggestions”), including without limitation in connection with bug fixes or improvements, Company will irrevocably own all right, title and interest in and to the Suggestions and will be free to use the Suggestions without any liability or payment to Customer, without notifying Customer, and without Customer’s prior written consent. Customer hereby irrevocably assigns to Company all right, title and interest in and to all Suggestions and agrees to provide Company with such reasonable assistance required in order to document, perfect and maintain Company’s rights in and to the Suggestions, at Company’s cost.
16. Third Party Links
The Website may include references and/or hyperlinks to information, websites, documents, software, materials, products, promotions and/or services provided by third parties (“Third–Party Links”). Company has no control over, makes no effort to review the content of, and assumes no responsibility for, the content, privacy policies, terms of use, or practices of any third parties or Third-Party Links. Any Third-Party Link that Customer acquires, uses, or accesses, and any exchange of data between Customer and such third party, is solely between Customer and the third party.
17. Confidentiality
Each party agrees to keep confidential and to use only for purposes of performing its obligation under the TOS, any proprietary or confidential information of the other party disclosed pursuant to the TOS which is marked as confidential or is identified at the time of disclosure as confidential or which would reasonably be considered confidential or proprietary in nature. The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure or which is required by law, government order or request to be disclosed (provided that the receiving party shall give written notice to the other party prior to such disclosure and an opportunity, at the objecting party’s expense, to take legal steps to resist or narrow such request). Customer acknowledges that the Fees, the Services, the software contained in the Services including the results of any performance tests of the Services or software, and any third-party data or information disclosed by or on behalf of Company to Customer in connection with the Services shall be deemed to be Company’s.
18. Services Warranty
Company warrants throughout the Term, the Service, if operated as directed by Company in writing, shall operate substantially in accordance with the functionalities provided by Company to Customer in writing (“Services Warranty”). Company’s sole liability for any breach of the Services Warranty by Company shall be for Company to make reasonable commercial efforts to repair the non-conforming functionality of the Services that does not meet the Services Warranty, within a reasonable time. The Services Warranty applies only with respect to failures in the operation of the Services that are reproducible in standalone form, and the Services Warranty does not apply if the failure to meet the Services warranty is caused by:
(i) faulty usage or set-up,
(ii) alterations undertaken without Company
19. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SPECIFIED IN THE TOS, THE WEBSITE AND THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. COMPANY, ITS LICENSORS, RESELLERS AND THIRD PARTY SERVICE PROVIDERS, MAKE NO EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND IN CONNECTION WITH THE WEBSITE OR THE SERVICES OR THE THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY, REPRESENTATION OR GUARANTEE THAT THE WEBSITE OR THE SERVICES OR THE THIRD PARTY SERVICES WILL BE UNINTERRUPTED, ERROR FREE, FREE OF HARMFUL COMPONENTS, OR SECURE, OR THAT ANY TESTING OR VERIFICATION DATA OR RESULTS WILL EFFECTIVE, ACCURATE, RELIABLE, SECURE AND NOT LOST OR DAMAGED. THE WEBSITE AND THE SERVICES (INCLUDING THE THIRD PARTY SERVICES) COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS, OR BUGS, VIRUSES, TROJAN HORSES OR THE LIKE. IN ADDITION TO OTHER THIRD PARTIES PROVIDING THIRD PARTY SERVICES, COMPANY USES, OR MAY USE, THIRD PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING AND RELATED TECHNOLOGY REQUIRED TO RUN THE SERVICES AND COMPANY ALSO MAKES NO WARRANTIES WITH RESPECT TO SUCH THIRD PARTY SERVICES AND COMPANY SHALL NOT BE RESPONSIBLE FOR ANY FAILURES ATTRIBUTABLE TO SUCH THIRD PARTIES OR THIRD PARTY SERVICES. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, COMPANY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER ACKNOWLEDGES THE RISKS INHERENT IN INTERNET CONNECTIVITY, COMPUTER NETWORKS, AND TELECOMMUNICATIONS FACILITIES THAT COULD RESULT IN THE LOSS, COMPROMISE, DEGRADATION, INTERCEPTION, MONITORING AND/OR OTHER UNAUTHORIZED ACCESS OF CUSTOMER’S OR THIRD PARTIES’ PRIVACY, DATA, RESULTS, CONFIDENTIAL INFORMATION AND PROPERTY, AS WELL AS THE RISKS ASSOCIATED WITH AUTOMATED TESTING AND VERIFICATION SERVICES, INCLUDING WITHOUT LIMITATION THE RISK THAT RESULTS COULD BE INACCURATE OR IRRELEVANT. THE USE OF THE WEBSITE AND THE SERVICES IS DONE AT CUSTOMER’S SOLE DISCRETION AND RISK AND WITH CUSTOMER’S AGREEMENT THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE, INCLUDING WITHOUT LIMITATION TO COMPUTER SYSTEMS AND LOSSES OF DATA, THAT MAY RESULT FROM SUCH ACTIVITIES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT INTENDED FOR USE IN CONNECTION WITH THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, WHERE THE USE OF OR FAILURE OF THE SERVICES COULD LEAD OR CONTRIBUTE TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
20. Limitation of Liability
IN NO EVENT SHALL COMPANY, ITS LICENSORS, OFFICERS, DIRECTORS, ADVISORS, REPRESENTATIVES, RESELLERS OR THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA OR RESULTS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR CLAIMS OF THIRD PARTIES, REGARDLESS OF THE CAUSE OF ACTION (INCLUDING WITHOUT LIMITATION CONTRACT OR TORT), EVEN IF ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF DAMAGES ARE FORESEEABLE. NOTWITHSTANDING ANY OTHER PROVISION IN THE TOS, THE MAXIMUM AGGREGATE LIABILITY OF COMPANY, AND ITS LICENSORS, OFFICERS, DIRECTORS, ADVISORS, REPRESENTATIVES, RESELLERS AND THIRD PARTY SERVICE PROVIDERS, TO CUSTOMER AND ALL THIRD PARTIES, UNDER ANY CAUSE OF ACTION, SHALL NOT EXCEED THE FEES ACTUALLY RECEIVED BY COMPANY FROM CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT AND THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. CUSTOMER ACKNOWLEDGES THAT THIS FOREGOING LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THE TOS AND ABSENT SUCH LIMITATION COMPANY WOULD NOT PROVIDE THE SERVICES TO CUSTOMER OR ENTER INTO THE TOS WITH CUSTOMER. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
21. Indemnification
Customer will defend, indemnify, and hold harmless Company and its licensors, officers, directors, advisors, representatives, resellers and Third Party Service Providers, from and against any claims, damages, losses, liabilities, costs, fines and expenses (including attorneys’ fees) arising out of or relating to:
(i) Customer’s actual or alleged breach of any provisions of the TOS or any applicable law,
(ii) any activity held under Customer’s Account, including by unauthorized third parties,
(iii) Customer’s use of other software or applications with the Services or Website, and
(iv) Customer Content and/or the combination of Customer Content with other applications, content or processes, including any claim involving actual or alleged infringement or misappropriation of third party rights arising out of or in connection with Customer Content and including any actual or alleged claim that appropriate consents were not obtained from data subjects to the collection or processing of their personal data.
Company shall notify Customer of any claim subject to indemnification, provided that Company’s failure to do so shall not affect Customer’s obligations hereunder, except to the extent that Company’s failure to promptly notify Customer materially delays or prejudices Customer’s ability to defend the claim. At Company’s option, Customer will have the right to defend against any such claim with counsel of Customer’s choosing (subject to Company’s written consent) and to settle such claim as Customer deems appropriate, provided that Customer shall not enter into any settlement without Company’s prior written consent and provided that Company may at any time elect to take over control of the defense and settlement of the claim upon written notice to Customer.
Company will defend, indemnify, and hold harmless Customer and its subsidiaries, licensors, officers, directors and representatives from and against any third party claims, damages, losses, liabilities, costs, fines and expenses (including reasonable attorneys’ fees) directly arising out of:
(i) Company’s breach of any representations and warranties of the TOS or any applicable law,
(ii) a claim that the Services, Websites or performance of these Terms violate third party intellectual property rights.
22. Force Majeure
In the event that either party shall be delayed or prevented from the performance of any obligation hereunder by reason of strike, labor trouble, inability to procure materials, power failure, government or judicial order, riot, insurrection, declared or undeclared war, terrorist act, weather or other Act of God, or any other reason beyond such party’s control, then the performance of such party’s obligations under the TOS shall be excused for the period of such delay. The party affected by Force Majeure shall provide notice to the other party of the commencement and termination of the Force Majeure.
In any event, the Customer will make best effort to make payments on a timely basis to Company, and any delay will not in any way relieve the Customer from any of its obligations with respect to the payment of Fees.
23. No Third-Party Beneficiary
The TOS does not create any third-party beneficiary rights in any individual or entity that is not a party to the TOS.
24. Changes
Company may update these TOS from time to time. Company will notify Customer of material changes to these TOS by email, or by posting notice of the update on the Website, or by any other reasonable means.
Such material changes will take effect seven (7) days after such notice was provided on our Website or sent via email, whichever is earlier. Otherwise, all other changes to these TOS are effective as of the stated “last revised” and your continued use of the Website and/or Services on or after the last revised date will constitute acceptance of, and agreement to be bound by, those changes. In the event that the terms should be amended to comply with any legal requirements, the amendments may take effect immediately, or as required by the law and without any prior notice.
25. Miscellaneous
The TOS constitutes the entire agreement between Customer and COMPANY.
The TOS shall be governed by the internal laws of the Province of Ontario, Canada, without regard of its conflict of laws rules, and the parties hereby submit to the exclusive jurisdiction of the courts of Toronto, Ontario in connection with any dispute in connection with the TOS, provided that Company Inc. shall be entitled to institute an action in any court of competent jurisdiction to obtain injunctive relief or otherwise protect or enforce its intellectual property rights or interests.
The TOS will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. All rights are cumulative. The rights and obligation under the TOS may not be assigned by either party without the written consent of the other party, which shall not be unreasonably withheld, conditioned or delayed, provide however, that no consent shall be required for a transfer to an Affiliate of a party or in connection with a change of Control of a party. No delay or failure to take any action with respect to any breach of the TOS shall constitute a waiver of such breach or any subsequent or other breaches.
All waivers must be in writing to be effective. If any provision of the TOS is declared invalid or unenforceable, the remaining provisions of the TOS shall not be affected thereby and shall remain in full force.
For any questions, please contact: support@fillextract.com.