Terms of Service
Last Revised: April 16, 2024
Welcome! You have arrived at fusionglobal.org and/or are otherwise interacting with our Service (defined below), which is owned and operated by Fusion Global, Inc., a California nonprofit corporation (“Fusion Global,” “we,” “our,” or “us”). These Terms of Service (“Terms”) govern your use of any of our online services locations (e.g., website or mobile app) where we’ve posted a link to these Terms, including the website available at https://www.fusionglobal.org/ and the FusionGlobal.org mobile application (collectively, the “Sites”), and also applies to all features, widgets, plug-ins, applications, content, downloads and other services that we own and control and make available through a Site, and/or that post or link to these Terms (collectively, the “Service”), regardless of how you access or use it, whether via computer, mobile device or otherwise.
The Service and the Sites are provided and made available for the user’s personal religious and spiritual development, education and entertainment. Certain products and services offered on the Site may involve you voluntarily participating in a course or process designed to further your Christian faith. You understand that we cannot and do not guarantee any specific result or outcome. You understand that Fusion Global does not provide psychotherapy or counseling services. Biblically based guidance does not address mental disorders as defined by the American Psychiatric Association and is not a substitute for counseling, psychotherapy, mental health care or substance abuse treatment. You understand that if you appear to be, or indicate that you are, a danger to yourself or to others, we may be required, by law, to notify the appropriate professionals and/or authorities.
PLEASE READ THESE TERMS CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE AND SECTION XVIII CONTAINS AN AGREEMENT TO ARBITRATE. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (A) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST THE COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (B) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (C) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU ARE NOT AUTHORIZED TO USE THE SERVICE.
I. ACCEPTANCE OF THESE TERMS
By using the Service, you accept all of the provisions of these Terms and any Additional Terms (defined below), and represent and warrant that you are at least the age of majority in your jurisdiction (or are sixteen (16) years of age or older and have your parent or guardian’s consent to the Terms) and have the requisite power and authority and all permissions necessary to enter into and be bound by these Terms, and you acknowledge that you have read and understood, and agree to be bound by, these Terms, and agree to comply with all applicable laws and regulations in connection with your use of the Service.
By using the Service, you acknowledge and accept the Service’s Privacy Policy and consent to the collection and use of your data in accordance with the Privacy Policy.
By using the Service, you further agree that Fusion Global may change, alter, or modify the settings or configurations on your Device (defined below) in order to allow for or optimize your use of the Service.
II. INTERPRETATION
In these Terms, we use the term “you” to refer to any user of the Service. If you Use the Service on behalf of a company, organization or other entity, then “you” includes you and that entity; you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms and that you agree to these Terms on the entity’s behalf; and you agree that your entity is legally and financially responsible for your use of the Service as well as for the use of your user account by others affiliated with your entity, including any employees, agents or contractors.
The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.
III. MODIFICATIONS OF THESE TERMS
We may, in our sole discretion, modify or revise these Terms of use at any time by updating this page. You agree that we may notify you of new, revised or changed terms and other important matters by posting them on the Service (or in any other reasonable manner of notice which we elect). If you continue to use the Service after any such modification or revision, then you are bound by such modification or revision, and you should therefore visit this page periodically to review these Terms. If any modification or revision is not acceptable to you, you are not permitted to continue using the Service.
IV. ADDITIONAL TERMS
In some instances, both these Terms and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions will apply to your use of a specific Service or to a service or product offered via a specific Service (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. Specifically, Additional Terms apply to membership in the Fusion Tribes.
V. SERVICE CONTENT, OWNERSHIP, LIMITED LICENSE, AND RIGHTS OF OTHERS
Content. The Service contains a variety of: (i) materials and other items relating to Fusion Global and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, haptic responses, vibrations, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Fusion Global (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
Ownership. The Service (including past, present, and future versions) and the Content are owned or controlled by Fusion Global and our licensors and certain other third parties. You acknowledge and agree that all right, title, and interest in and to the Content available via the Service is the property of Fusion Global or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible, and you agree not to take any action(s) inconsistent with such ownership interests. Fusion Global owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
Limited License. Subject to your strict compliance with these Terms and the Additional Terms, Fusion Global grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to (i) access and view the Content as displayed on the Service on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only, and (ii) to use and modify certain Content that we may from time to time make available on the Service explicitly for you for use and integration as part of your User-Generated Content (defined below) (which types of Content are referred to herein as “Fusion Global Licensed Elements”), but only for such purposes as may be explicitly stated at the time that the Fusion Global Licensed Elements are made available on the Service. We and our licensors and certain other third parties, as the case may be, retain ownership of all Content, including Fusion Global Licensed Elements. The foregoing limited license (a) does not give you any ownership of, or any other intellectual property interest in, any Content, and (b) may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
Rights of Others. In using the Service, you must respect the intellectual property and other rights of Fusion Global and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Fusion Global respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see Section XIII below.
Your Data. For more information about how we may use and share your technical data and related information, including your User-Generated Content, please review the Privacy Policy.
VI. MEMBERSHIP AND PAYMENT TERMS GENERAL
Enrollment. Depending upon the membership or other registered services you enroll in, register for, or otherwise sign up for or subscribe to use (collectively, “enroll”), we may permit you to be enrolled: (i) at our Site, or (ii) by some other method we expressly permit (collectively, the “Enrollment Process”).
Membership Fee. If you subscribe to a registered service (including a subscription to access certain premium content) that is subject to a membership fee, Fusion Global will charge the membership fee displayed to you and each renewal fee, as applicable, to your credit card or bank account at the then prevailing rate.
Renewals. If you subscribe for a renewing membership subscription (a “Membership Subscription”), Fusion Global will charge membership fee(s) to the credit card or bank account that was provided at the time of registration. Your Membership Subscription will automatically renew as further set forth below. By submitting your credit card or bank account information to us, you hereby agree that you authorize us or our third party payment processors to charge your card or your bank account, as applicable, at our convenience but in any event within thirty (30) days of initial credit card or bank account authorization and, if you elect to pay a Membership Subscription, thereafter automatically within thirty (30) days after each renewal date or upon such other renewal periods we communicate to you when you first register for a Membership Subscription. Should your credit card or online check fail to authorize, you will be notified of such failure via email. The benefits of your membership may be suspended until payment is received. If payment is not received within thirty (30) days, your membership may be cancelled.
Membership Term and Termination. Except in the event of a free trial offer, your membership will commence as of the date your payment is received by Fusion Global. If you sign up for a Membership Subscription, your Membership Subscription will continue in full force for the length of the term you specifically purchased or on a month-to-month term if not otherwise specified until such time as you cancel the Membership Subscription as further explained below (the “Subscription Term”). In the event that you cancel a Membership Subscription in the middle of your Subscription Term, you will not be entitled to receive a refund for the unused portion of the remainder of that Subscription Term. Fusion Global will have the right, upon written notice to you, to terminate your use of the Service and suspend your access to your Membership Subscription, if: (a) you fail to pay Fusion Global any amount due to Fusion Global under these Terms; and/or (b) you materially breach any term or condition set forth in these Terms. Fusion Global shall have the right to terminate your use of the Service and suspend your access to your Membership Subscription with or without cause, upon thirty (30) days written notice you, in which case you will no longer be charged for access to the Membership Subscription. You agree that Fusion Global will not be liable to you or any third party for termination of your membership or access to the Service.
Free Promotional Offerings. We may offer promotional trial subscriptions to access certain membership-only features of the Service for free for a limited time or at special discounted prices. If you sign up for a trial use, your rights to use the Service are limited by the terms of such trial and will terminate or renew on the terms of your trial arrangement and/or any applicable Additional Terms. Please be aware that when you sign up for a free trial, you will be required to provide your credit card number and Fusion Global will confirm your credit card is valid. When we process your credit card, some credit card companies may place a temporary hold on your account for your first payment. Please contact your credit card company if you have questions. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
Auto-Renewal of Membership. Membership Subscriptions, including those that may be first offered on a free or discounted promotional basis, will automatically renew at the end of your Subscription Term continuously and indefinitely without action by you, and the membership fee for your membership subscription is charged to you at the time of renewal unless you cancel your Membership Subscription prior to renewal as set forth below or your account is suspended or terminated pursuant to these Terms. You acknowledge and agree that your account will be subject to the above-described automatic renewals. If your membership fee has been paid, you are entitled to all privileges included in the Membership Subscription until you cancel the membership as set forth in the paragraph below.
By providing your payment method information for your Membership Subscription, you are agreeing to pay a membership fee, which will automatically renew as set forth above, and any applicable taxes and service fees (collectively, “Fees”). The Fees will be charged to your original payment method automatically at the beginning of your Subscription Term, and at the beginning of each renewal Subscription Term thereafter on the calendar day corresponding to the commencement of your current Subscription Term, unless you cancel your Membership Subscription or your account is suspended or terminated pursuant to these Terms. The rate for the renewal Subscription Term will be the then current Membership Subscription rate, and we will notify you of any increases to your Membership Subscription rate in advance. The Fees charged to your payment method may vary from Subscription Term to Subscription Term due to changes in your Membership Subscription plan or applicable taxes, and you authorize Fusion Global to charge your payment method for these amounts. Fusion Global reserves the right to change the pricing of the Membership Subscription at any time. In the event of a price change, Fusion Global will post the new pricing on the Site and attempt to notify you in advance by sending an email to the address you have registered for your account. You agree that we may change the pricing we charge you for your Membership Subscription and any products/services offered in your Membership Subscription package by providing you with notice through an electronic communication from us and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You consent to our ability to change our pricing and the details of our Membership Subscription packages through an electronic communication to you. If you do not wish to accept a price or Membership Subscription package change made by us, you may cancel your Membership Subscription as described below. Otherwise you will be deemed to have consented to the Membership Subscription package change and authorize Fusion Global to charge the new Fees to your payment method.
Cancelling Membership. A member will have the right to cancel membership at any time upon notice to Fusion Global via the “Settings” section of the app or via the web by logging into your account at www.FusionGlobal.org. If you purchase your Membership Subscription via a third party app or platform, you should cancel your Subscription with that third party app or platform directly. Cancellation of initial membership any time after purchase will result in forfeiture of any pre-paid membership fee. To avoid a late cancellation fee or forfeiture of the membership renewal fee, membership should be cancelled prior to the end of the then current Subscription Term. Upon cancellation, the member loses access to the areas of the Site designated for members only.
VII. PAYMENTS
Generally. All prices displayed are quoted in U.S. dollars. Prior to the purchase of any products or services (including purchases for premium content that is only available on a subscription or other paid basis), completion of any membership subscription or making of any Donation, you must provide us or our third party payment processor with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card. By submitting that information to us or our third party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization.
Your Information. In order to enroll in, register for and receive one or more services or memberships, you must provide us with the full and accurate personal or organizational information that we require for the applicable services, which may include, without limitation, your name, address, telephone number, email address, date of birth, driver’s license number, or tax identification number, the last four digits of your Social Security number, and other personal or organizational information to verify your identity. You agree to keep all personal information updated and accurate. In the event we do not receive all the required personal information during your Enrollment Process, you agree that we may, in our sole discretion, use our database, the database of our affiliates, or other resources to attempt to complete the required personal information on your behalf. If we are unable to obtain the required personal information or you fail to authenticate your identity as may be required, the services for which you have enrolled or registered from us may be limited. Upon completion of the Enrollment Process, and payment to us of any fees owed, you will become eligible to receive the services for which you have enrolled or registered.
Minimum Age. To purchase any products or services, including subscribing as a member or to make any Donations to FBO Users, you must be at least the age of majority in your jurisdiction (or be sixteen (16) years of age or older and have your parent or guardian’s consent). If you are an Individual User, you represent that you are at least the age of majority in your jurisdiction (or are sixteen (16) years of age or older and have your parent or guardian’s consent). You represent that your access to or use of the Service does not violate applicable laws, and that you agree with all of these Terms.
Methods of Payment; Credit Card Terms and Taxes. All payments must be made through your Visa, MasterCard, Discover, American Express or such other method(s) specifically identified and accepted via the Service from time to time. We currently do not accept cash or personal checks, although in the future we may change this policy. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not these Terms to determine your rights and liabilities as a cardholder. You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. You, and not Fusion Global, are responsible for paying any unauthorized amounts billed to your credit card by a third party. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. If Fusion Global does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Fusion Global or its agents. You are responsible for paying any taxes or charges imposed on your purchases or Donations, including, but not limited to, sales, use or value-added taxes. Payment processing services for your account on the Service may be provided by our third party payment processor Stripe, in which case they will be subject to the Stripe Connected Account Agreement https://stripe.com/connect-account/legal, which includes the Stripe Terms of Service https://stripe.com/legal (collectively, the “Stripe Services Agreement”). By agreeing to these Terms or continuing to make payments via Stripe while using the Service, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Fusion Global enabling payment processing services through Stripe, you agree to provide Fusion Global accurate and complete information about you and your business, and you authorize Fusion Global to share such information with Stripe in accordance with the Privacy Policy. Alternatively, if you make payments within the iOS or Android mobile app version of our Service by using Apple Pay or Google Pay as applicable, your payment will be processed by Apple or its service providers (in the case of Apple Pay) or Google or its service providers (in the case of Google Pay). Your use of Apple Pay or Google Pay will be subject to Apple or Google’s respective end user terms for their respective payment processing services.
No Refunds. DONATIONS AND FEES ARE NONREFUNDABLE. You may cancel your Membership Subscription at any time. If you do cancel your Membership Subscription, however, you will continue to have access to the service through the end of your current billing period, but you will not get a refund or any proration for that billing period. We may provide a refund, discount, or other consideration to some or all of our members (“deductions”). The amount and form of such deductions, and the decision to provide them, are at our sole and absolute discretion. If you received deductions in one instance, this does not entitle you to deductions in the future for similar instances, nor does it obligate us to provide deductions to you or anyone else in the future.
Modifications to Membership Pricing or Billing Terms. Fusion Global reserves the right, at any time, to change its prices and billing methods for services sold, effective immediately upon posting on the site.
VIII. RECEIPT AND ACCEPTANCE OF DONATIONS
Users may send either one-time or recurring Donations to Fusion Global through the “Donate” function on the Site. Fusion Global is a nonprofit corporation and is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (the “Code”). We will use your donation at our discretion but within our stated charitable objectives.
Once you confirm to us through the Site that you wish to proceed with your donation your transaction will be processed through our payment services provider. You may not cancel a donation once your payment has been processed.
By selecting any recurring donation frequency, you agree that the credit card and/or account information you enter is accurate and may be charged the amount designated at the frequency designated with no pre-scheduled cancellation date. You have the option to make your gift monthly, quarterly, or annually by pressing the corresponding button and checking the corresponding box. You will not be notified before your credit card and/or account is to be charged but will be notified once the donation is completed.
We are not liable for any overdraft charges, or any other similar penalties charged to your credit card or account due to the automatic charge/withdrawal of any recurring donation. It is your responsibility to either cancel the recurring donations or ensure the requisite money or credit is available for the donation prior to any recurring donation occurring.
Recurring gifts can be modified or cancelled at any time by contacting us by email at [email protected].
Tax Deductions and Receipts:
When you make a donation, you will receive a receipt from us for the amount of your donation. In some cases, donations made will be tax deductible, but in other cases the donation may not be tax deductible. It is also your responsibility to determine whether any perks received in exchange for your donation will prevent you from claiming your donation as a tax deduction. In exchange for being allowed to use the Site, you agree that we will not be liable for any unpaid tax, interest, fines, penalties or any other claims against you in relation to the tax deductibility of your donation. You also agree to indemnify us against any claim made against us in relation to the tax deductibility of your donation.
IX. USER-GENERATED CONTENT
General. Fusion Global may now or in the future offer users of the Service the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, “submit”) messages, avatars, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Fusion Global Licensed Elements included therein, “User-Generated Content”). Fusion Global may allow you to do this through your Profile Page (defined below), forums, blogs, message boards, social networking environments, content creation tools, gameplay, social communities, contact us tools, email, text message, and other communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.
Non-Confidentiality of Your User-Generated Content. Except as otherwise described in the Service’s posted Privacy Policy or any Additional Terms or as set forth below, you agree that (a) your User-Generated Content will be treated as non-confidential regardless of whether you mark them “confidential,” “proprietary,” or the like and will not be returned, and (b) Fusion Global does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content. Notwithstanding anything provided herein in the contrary, any User-Generated Content you submit privately and not for public display, such as private messages, will not be information that we make publicly available on the Service, except as otherwise permitted under the Privacy Policy. Upon our request, you will furnish us with any documentation necessary to substantiate that you have the right to submit User-Generated Content to the Service, and to verify your compliance with these Terms or any Additional Terms. You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content and do so at your own risk. In your communications with Fusion Global, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed User-Generated Content and licensed to us as set forth below. In addition, Fusion Global retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Fusion Global’s receipt of your Unsolicited Ideas and Materials is not an admission by Fusion Global of their novelty, priority, or originality, and it does not impair Fusion Global’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
License to Fusion Global of Your User-Generated Content. We need certain rights in your User-Generated Content in order to be able to provide the Service. Accordingly, except as otherwise described in any applicable Additional Terms (such as a contest official rules), which specifically govern the submission of your User-Generated Content, you hereby grant to Fusion Global, and you agree to grant to Fusion Global, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels including to other users of the Service), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to Fusion Global to your User-Generated Content, you also hereby grant to Fusion Global, and agree to grant to Fusion Global, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with the posting of any User-Generated Content on the Service, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section IX.3.
Exclusive Right to Manage Our Service. Fusion Global may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Fusion Global may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in the Rules (defined in Section X.1). Such User-Generated Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Service or elsewhere.
Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content, (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant Fusion Global the rights to it that you are granting by these Terms and any Additional Terms, all without any Fusion Global obligation to obtain consent of any third party and without creating any obligation or liability of Fusion Global; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to Fusion Global’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms (including the Rules) or any Additional Terms, or cause injury or harm to any person.
Enforcement. Fusion Global has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Fusion Global’s cost and expense, to which you hereby consent and irrevocably appoint Fusion Global as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
X. COMMUNITY USAGE RULES
1. Rules. As a user of the Service, these Community Usage Rules (“Rules”) are here to help you understand the conduct that is expected of members of the Service’s online communities (“Communities”). Your participation in the Communities is subject to all of the Terms, including these Rules:
Your User-Generated Content. All of your User-Generated Content either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any Additional Terms. Your User-Generated Content may not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears or is referred to in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to Fusion Global. (For example, if someone has taken a picture of you and your friend, and you submit that photo to Fusion Global as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.)
Act Appropriately. All of your Service activities must be venue appropriate, as determined by us. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the Service. Cursing, harassing, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
Do Not Use for Commercial or Political Purposes. Your User-Generated Content must not advertise or promote a product or service or other commercial activity for profit, or a politician, public servant, or law.
Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity.
Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content. Do not impersonate any other person, user, or company, and do not submit User-Generated Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.
Others Can See. We hope that you will use the Communities to exchange information and content and have venue appropriate discussions with other members. However, please remember that the Communities are public or semi-public and User-Generated Content that you submit on the Service within a Community may be accessible and viewable by other users. Do not submit personally identifying information (e.g., first and last name together with password, phone number, address, credit card number, medical information, email address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
Don’t Share Other Peoples’ Personal Information. Your User-Generated Content should not reveal another person’s address, phone number, email address, Social Security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by Fusion Global.
Don’t Damage the Service or Anyone’s Computers or Other Devices. Your User-Generated Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Service or any computer or other Device. If you submit User-Generated Content that Fusion Global reasonably believes violates these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion. However, we are not obligated to take any action not required by law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Service.
Only Contact Other People Through the Service. You may use certain functionality of our Service to communicate with other users/members/constituents/followers in accordance with these Terms, our Privacy Policy, and all applicable laws. All communication must occur through our Service. You may not send any messages to our users that contain illegal, illicit, harassing, harmful, inappropriate, or hateful content. You must honor all requests to opt-out of receiving communications.
2. Your Interactions with Other Users; Disputes. You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
3. Alerting Us of Violations. If you discover any content that violates these Terms, then you may report it to us at [email protected]. For alleged infringements of intellectual property rights, see Section XIII below.
XI. SERVICE AND CONTENT USE RESTRICTIONS
Service Use Restrictions. You agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Fusion Global; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Fusion Global, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User-Generated Content; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any Additional Terms.
Content Use Restrictions. You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content (other than to the extent of your permitted use of the Fusion Global Licensed Elements, if applicable); (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Fusion Global or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
Availability of Service and Content. Fusion Global may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in Fusion Global’s sole discretion, and without advance notice or liability.
Customer Service. You acknowledge that the provision of customer support is at Fusion Global’s sole discretion and that we have no obligation to provide you with customer support of any kind, except to answer any questions you may have about these Terms. We may provide you with customer support from time to time, at our sole discretion, provided that you have created an account and that you submit your customer support inquiries using such account.
Reservation of All Rights Not Granted as to Content and Service. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Fusion Global and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
XII. ACCOUNTS AND PROFILES
Accounts. In order to access or use some (or potentially all) of the features on the Service, you must first register through our online registration process. The Service’s practices governing any resulting collection and use of your personal information are disclosed in its Privacy Policy. If you are under the age of sixteen (16), then you are not permitted to register as a user, create a Profile Page or otherwise use the Service or submit personal information to us. If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you a text message notification with a randomly generated initial password) and you agree that: (i) you will not use a username (or email address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive (We may reject the use of any password, username, or email address for any other reason in our sole discretion); (ii) you will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it including on your Profile Page, continuously and promptly to keep it accurate, current, and complete; (iii) you are solely responsible for all activities that occur under your account, password, and username whether or not you authorized the activity; (iv) you are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Service using your name, username, or password; (v) you will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) you will not sell, transfer, or assign your account or any account rights. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits all in our Donation Solicitation by discretion, for any reason, and without advance notice or liability.
Profiles. Your Profile Page may not include any form of prohibited User-Generated Content, as outlined in Section IX.5 above and in our Rules. Without limiting the foregoing, Profile Pages may not include content that you are attempting to sell through the Service, and, cannot be used to conduct commercial activities, including, but not limited to, transactions, advertising, contests or other promotions absent our prior written consent. We may offer you the ability to set preferences relating to your profile or Service activities, but settings may not become effective immediately or be error free, and options may change from time-to-time. We assume no responsibility or liability for users’ profile material. Profile Pages may only be set up by an authorized representative of the individual, group, association or entity that is the subject of the Profile Page. We do not review Profile Pages to determine if they were created by an appropriate party, and we are not responsible for any unauthorized Profile Pages that may appear on the Service. If there is any dispute as to whether a Profile Page has been created or is being maintained by an authorized representative of the individual, group, association or entity that is the subject of that Profile Page, then we shall have the sole right, but are not obligated, to resolve such dispute as we determine is appropriate in our sole discretion. Such resolution may include, without limitation, deleting or disabling access to Profile Pages, or any portion thereof, at any time without notice.
XIII. DMCA COPYRIGHT AND OTHER INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
Procedure for Alleging Copyright Infringement DMCA Notice. Fusion Global will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following: (i) a legend or subject line that says: “DMCA Copyright Infringement Notice”; (ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Service on which the material appears); (iv) your full name, address, telephone number, and email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and (vii) your electronic or physical signature. Fusion Global will only respond to DMCA Notices that it receives by mail, email, or facsimile at the addresses below: By Mail: Fusion Global, ATTN: Legal, 5062 Lankershim Blvd., Ste 3017, North Hollywood, CA 91601. By email: info@Fusion Global.org. It is often difficult to determine if your copyright has been infringed. Fusion Global may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Fusion Global may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA. Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification. Without limiting Fusion Global’s other rights, Fusion Global may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by Fusion Global.
Counter-Notification. If access on the Service to a work that you submitted to Fusion Global is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification must contain the following information: (i) a legend or subject line that says: “DMCA Counter-Notification”; (ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Service from which the material was removed or access to it disabled); (iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (iv) your full name, address, telephone number, email address, and the username of your account; (v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and (vi) your electronic or physical signature. Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
Procedure for Alleging Infringement of Other Intellectual Property. If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice to the addresses set forth above that includes all of the following: (a) a legend or subject line that says: “Intellectual Property Infringement Notice”; (b) a description of the intellectual property that you claim has been infringed; (c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Service on which the material appears); (d) your full name, address, telephone number, and email address; (e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law; (f) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and (g) your electronic or physical signature. We will act on such notices in our sole discretion. Any user of the Service that fails to respond satisfactorily to Fusion Global with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
XIV. TELEPHONIC COMMUNICATIONS
Telephonic Communications Services. With your agreement, Fusion Global or its affiliates or partners (including our third party mobile messaging service provider) may contact you and send you transactional messages and marketing messages by telephone (including on a recorded line), automated calling, automated telephone dialing system calling, automated system calling, artificial voice or pre-recorded calling, text message, SMS and/or MMS message, fax, or other telephonic or electronic means for marketing, solicitation, informational or another purposes, even if your telephone number(s) is registered on the National Do Not Call List, a state Do not Call List, or the internal Do Not Call List of Company or its affiliates or partners. You may be required to respond to an initial call or message as instructed to complete your registration and confirm enrollment to receive such calls, texts or other telephonic communications. Transactional messages may include updates, alerts, and information (e.g., account alerts) and marketing messages may include promotions, specials, and other marketing offers. You do not have to consent to receive calls or text messages from Fusion Global or its affiliates or partners for marketing or solicitation purposes to purchase Fusion Global’s products or services, and your consent is not a condition of any purchase with Fusion Global. In the event you no longer wish to receive such calls, text messages or other telephonic communications, you agree to notify Fusion Global or its affiliates or partners, as applicable, directly. In the event you change or deactivate your telephone number, you agree to promptly update your Fusion Global account information to ensure that your messages are not sent to a person that acquires your old telephone number. Neither we nor the wireless carriers supported by the Service are not liable for delayed, misdirected or undelivered messages.
You may also be able to provide Fusion Global with access to your contact lists and related information. With your permission, Fusion Global may collect such information from your Device and use such information to connect you to other Fusion Global users.
There is no additional charge for telephonic communications, but your carrier’s standard message and data rates apply to any calls, text messages, SMS or MMS messages you send or receive. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or Device. Please contact your mobile carrier if you have any questions regarding these issues or your mobile data and messaging plan.
You may opt-out of receiving transactional or marketing messages at any time. Text the single keyword command STOP to the message or click the unsubscribe link (where available) in any text message to cancel if you no longer want to receive messages from us. If you choose to cancel text, SMS or MMS messages from us, you agree to receive a final message from us confirming your cancellation. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other FusionGlobal.org mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms. We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.
XV. LINKS BY YOU TO THE SERVICE
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with Fusion Global or cause any other confusion, and (c) the links and the content on your website do not portray Fusion Global or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Fusion Global. Fusion Global reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
XVI. THIRD-PARTY SITES
Links to Third Party Sites. The Service may contain third party plug-ins and/or applications, and/or links to third-party websites that are not owned, controlled or operated by Fusion Global, and the Service may also include links to third-party ads on the Service or otherwise, to or from third-party websites (collectively, “Third-Party Sites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Fusion Global. Fusion Global may have no control over the content, operations, policies, terms, or other elements of Third-Party Sites, and Fusion Global does not assume any obligation to review any Third-Party Sites. Fusion Global does not necessarily endorse, approve, or sponsor any Third-Party Sites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, Fusion Global is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Third-Party Sites. Finally, Fusion Global will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these Third-Party Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Third-Party Sites. Fusion Global disclaims all liability in connection therewith.
Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Third-Party Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Fusion Global disclaims all liability in connection therewith.
XVII. WIRELESS AND LOCATION-BASED FEATURES
Wireless Features. The Service may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify Fusion Global of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes.
Location-Based Features. If you have enabled GPS, geo-location or other location-based features on any mobile app(s) or feature(s), you acknowledge that your Device location will be tracked and may be shared with others consistent with the Privacy Policy. Some mobile app(s) or feature(s) allow for you to disable location-based features or manage preferences related to them. However, you can terminate Device location tracking by us by uninstalling any mobile app(s) or feature(s). The location-based services offered in connection with our mobile app(s) or feature(s) are for individual use only and should not be used or relied on as an emergency locator system, used while driving or operating vehicles, or used in connection with any hazardous environments requiring fail-safe performance, or any other situation in which the failure or inaccuracy of use of the location-based services could lead directly to death, personal injury, or severe physical or property damage. The location-based services are not suited or intended for family finding purposes, fleet tracking, or any other type of business or enterprise use.
XVIII. DISPUTE RESOLUTION
General. Certain portions of this Section XVIII are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Fusion Global agree that we intend that this Section XVIII satisfies the “writing” requirement of the Federal Arbitration Act. If you do not want to arbitrate disputes with Fusion Global and you are an individual, you may opt out of this arbitration agreement by sending an email to info@Fusion Global.org within thirty (30) days of the Last Revised Date of these Terms or of the date you first access or use the Service, whichever is later. If you opt-out of these arbitration provisions, we also will not be bound by them.
First Try To Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Service, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Fusion Global’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section XVIII.6), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section XVIII.2. Your notice to us must be sent to: Fusion Global, 5063 Lankershim Blvd., Ste 3017, North Hollywood, CA 91601. For a period of sixty (60) days from the date of receipt of notice from the other party, Fusion Global and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Fusion Global to resolve the Dispute or Excluded Dispute on terms with respect to which you and Fusion Global, in each of our sole discretion, are not comfortable.
Forums for Alternative Dispute Resolution Arbitration. If we cannot resolve a Dispute as set forth in Section XVIII.2 within sixty (60) days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this Section XVIII.3. If we cannot resolve an Excluded Dispute as set forth in Section XVIII.2 within sixty (60) days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and Fusion Global consent, in a writing signed by you and an Officer or legal representative of Fusion Global, to have that Excluded Dispute subject to arbitration. In such a case, (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section XVIII.3. Upon expiration of the applicable sixty-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than fifteen (15) years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Fusion Global elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party-appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and Fusion Global do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section XVIII.3, then this paragraph and the remainder of this Section XVIII.3 will not apply to the Excluded Dispute. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Fusion Global consent to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA (800.778.7879, http://www.adr.org/) and JAMS (949.224.1810, http://www.jamsadr.com/).
Nature, Limitations, and Location of Alternative Dispute Resolution. The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to Section XVIII.8 below. In arbitration, as with a court, the arbitrator must honor the terms of these Terms (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, with arbitration (a) there is no judge or jury, (b) the arbitration proceedings and arbitration outcome are subject to certain confidentiality rules, and (c) judicial review of the arbitration outcome is limited. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Fusion Global to pay a greater portion or all of such fees and costs in order for this Section XVIII to be enforceable, then Fusion Global will have the right to elect to pay the fees and costs and proceed to arbitration, or to decline to do so and have the matter resolved through the courts. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
Limited Time to File Claims. To the fullest extent permitted by applicable law, if you or we want to assert a Dispute (but not an Excluded Dispute) against the other, then you or we must commence it (by delivery of written notice as set forth in section XVIII.2) within one (1) year after the dispute arises or it will be forever barred.
Injunctive Relief. The foregoing provisions of this Section XVIII.2 will not apply to any legal action taken by Fusion Global to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User-Generated Content and/or Fusion Global’s intellectual property rights (including such Fusion Global may claim that may be in dispute), Fusion Global’s operations, and/or Fusion Global’s products or services.
Small Claims Matters Are Excluded From Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section XVIII.9.
No Class Action Matters. Any claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). Each of us expressly waive any ability to maintain any Class Action in any forum. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section XVIII.3 holds that this restriction is unconscionable or unenforceable, then our agreement in Section XVIII.3 to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section XVIII.9. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in Section XVIII.3, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles, CA. Accordingly, you and Fusion Global consent to the exclusive personal jurisdiction and venue of such courts for such matters.
XIX. DISCLAIMER
Your access to and use of the Service is at your sole risk. The Service is provided on an “as is”, “as available”, and “with all faults” basis. Therefore, to the fullest extent permissible by law, Fusion Global, Inc. and its subsidiaries and each of their respective employees, directors, members, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Fusion Global Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to: (a) the Service (including the Content and the User-Generated Content); (b) the functions, features, or any other elements on, or made accessible through, the Service; (c) any memberships, membership packages, subscriptions, products, services, or instructions offered or referenced at or linked through the Service; (d) security associated with the transmission of your User-Generated Content transmitted to Fusion Global or via the Service; (e) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device); (f) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable; (g) whether any defects to or errors on the Service will be repaired or corrected; (h) whether your access to the Service will be uninterrupted; (i) whether the Service will be available at any particular time or location; and (j) whether your use of the Service is lawful in any particular jurisdiction. Except for any specific warranties provided herein or in Additional Terms provided by a Fusion Global Party, Fusion Global Parties hereby further disclaim all warranties, express or implied, including the warranties of merchantability, fitness for a particular purpose, non-infringement or misappropriation of intellectual property rights of third parties, title, custom, trade, quiet enjoyment, system integration, and freedom from computer virus. Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
XX. LIMITATION ON LIABILITY
Limitations of Our Liability. Under no circumstances will any Fusion Global Parties be responsible or liable for any loss or damages of any kind, including personal injury or death or for any indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to: (a) the Service (including the Content and the User-Generated Content); (b) your use of or inability to use the Service, or the performance of the Service; (c) any action taken in connection with an investigation by Fusion Global Parties or law enforcement authorities regarding your access to or use of the Service; (d) any action taken in connection with copyright or other intellectual property owners or other rights owners; (e) any errors or omissions in the Service’s technical operation; or (f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction. You understand that we monitor your personal information within our network using certain proprietary technologies and database information owned by or under license to us, but not all transactions, including those that might entail the potentially fraudulent use of your information, may be monitored and the scope of the network utilized by us to monitor your personal information may change. The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Fusion Global Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Service). Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
General Limitations on Liability. Except as may be provided in any Additional Terms, to the fullest extent permitted by applicable law, in no event will Fusion Global Parties’ total liability to you, for all possible damages, losses, and causes of action in connection with your access to and use of the Service and your rights under these Terms, exceed an amount equal to the amount you have paid Fusion Global in connection with the transaction(s) that underlie the claim(s); provided, however, this provision will not apply if a tribunal with applicable jurisdiction finds such to be unconscionable. For purposes of clarity, the prior sentence does not expand or limit any express, written product warranty that is provided by Fusion Global or a manufacturer of a physical product.
Waiver of Injunctive or Other Equitable Relief. If you claim that you have incurred any loss, damages, or injuries in connection with your use of the Service, then the losses, damages, and injuries will not be irreparable or sufficient to entitle you to an injunction or to other equitable relief of any kind. This means that, in connection with your claim, you agree that you will not seek, and that you will not be permitted to obtain, any court or other action that may interfere with or prevent the development or exploitation of any website, application, Content, User-Generated Content, product, Service, or intellectual property owned, licensed, used or controlled by Fusion Global (including your licensed User-Generated Content) or a licensor of Fusion Global.
XXI. GENERAL PROVISIONS
Fusion Global’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grants Fusion Global a right of consent or approval, or permits Fusion Global to exercise a right in its “sole discretion,” Fusion Global may exercise that right in its sole and absolute discretion. No Fusion Global consent or approval may be deemed to have been granted by Fusion Global without being in writing and signed by an officer of Fusion Global.
Applicable Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California (or the arbitration laws of AAA if applicable), without regard to its conflicts of law provisions.
California Users. California users of the Service receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
Indemnity. You agree to, and you hereby, defend, indemnify, and hold Fusion Global Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Fusion Global Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Fusion Global Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Fusion Global Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Fusion Global Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Fusion Global Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Fusion Global Party.
Operation of Service; Availability of Products and Services; International Issues. Fusion Global controls and operates the Service from its U.S.-based offices in the U.S.A., and Fusion Global makes no representation that the Service is appropriate or available for use beyond the U.S.A. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Service may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
Export Controls. Software related to or made available by the Service may be subject to export controls of the U.S.A. No software from the Service may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls, including as set forth in subsections (i)-(iii) above.
Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation.” The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.
Communications. When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Investigations; Cooperation with Law Enforcement; Termination; Survival. Fusion Global reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Fusion Global in accordance with its Privacy Policy in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Fusion Global under these Terms or any Additional Terms. Upon suspension or termination of your access to the Service, or upon notice from Fusion Global, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Fusion Global in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
Assignment. Fusion Global may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Fusion Global.
No Waiver. Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or Fusion Global in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
U.S. Government Restricted Rights. If you are a government end user, then this provision applies to you. The Service provided in connection with these Terms has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227-7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer site” and/or “commercial computer site documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212 and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these Terms and shall be prohibited except to the extent expressly permitted by these Terms.
Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.
Terms Applicable for Apple iOS. If you are accessing or using the Service through an Apple Inc. (“Apple”) Device or via an app downloaded from the Apple App Store, the following additional terms and conditions are applicable to you and are incorporated into the Terms by reference. To the extent the other terms and conditions of the Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to an app from the Apple App Store. To the extent that you are accessing the Service through an Apple Device or via an app downloaded from the Apple App Store, you acknowledge that these Terms are entered into between you and Fusion Global and, that Apple is not a party to these Terms other than as third-party beneficiary as contemplated below. Your use of the app must comply with the Apple App Store Terms of Use. The license granted to you in Section V.3 of these Terms is subject to the permitted Usage Rules set forth in the Apple App Store Terms of Use (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service. You acknowledge that Fusion Global, and not Apple, is responsible for providing the Service and Content. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service. In the event of any failure of the app to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the app to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service. Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Fusion Global and that Fusion Global, and not Apple, is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim that the Service fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.
Entire Agreement. These Terms, including the documents expressly incorporated by reference, constitute the entire agreement between you and us with respect to the Service, and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Service.
Contact Us. If you have a question regarding these Terms or the Service, you may contact Fusion Global by sending an email to [email protected] or writing us at Fusion Global, 5062 Lankershim Blvd., Ste 3017, North Hollywood, CA 91601.
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