Last Updated: November 30, 2020
THESE TERMS AND CONDITIONS (THIS "Agreement") CONSTITUTE A BINDING CONTRACT BETWEEN YOU AND FUSIT, INC. ("Fusit", "we", "us" and "our"), AND BY CLICKING "I AGREE" BELOW, OR BY OTHERWISE INSTALLING OR USING THE APP (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE "Effective Date"):
THIS AGREEMENT, AND
OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE HEREBY INCORPORATED INTO, AND MADE A PART OF, THIS AGREEMENT BY REFERENCE.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT DOWNLOAD OR USE THE APP.
You represent that you are of a legal age in your jurisdiction to form a binding contract, but in any event at least thirteen (13) years old. Children under the age of thirteen (13) are not permitted to use the App. If you are between thirteen (13) and eighteen (18) years old, you must review this Agreement with your parent or guardian, have him/her accept it on your behalf, as well as approve your use of the App.
This Agreement (including its Schedules) represents the entire agreement between Fusit and you with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between you and Fusit with respect to such subject matter. You acknowledge and agree that in entering into this Agreement you have not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement; for example, statements and explanations in any FAQs or other marketing material on the Site (defined below) are for convenience only, and are not binding or a part of this Agreement. The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement you hereby irrevocably waive, to the maximum extent legally permitted, any Law (defined below) applicable to you requiring that the Agreement be localized to meet your language, as well as any other localization requirements.
Fusit reserves the right to make changes to this Agreement at any time by posting the changed Agreement at https://www.app.getfuse.it/tos. Such changes will be effective ten (10) days after such posting, and your continued use of the App shall be deemed your agreement to such changes. In such cases, we will also update the "Last Updated" date set forth above. Please check the above webpage regularly for any changes.
At Fusit's sole discretion, any Fusit obligation hereunder may be performed (in whole or in part), and any Fusit right or remedy may be exercised (in whole or in part), by a Fusit Affiliate (defined below).
Fusit is a Delaware corporation with an address at: 730 Arizona Ave #206, Santa Monica, CA 90401.
1.DEFINITIONS AND INTERPRETATION
This Agreement contains a range of capitalized terms, some of which are defined in this Section, and some of which are defined elsewhere. The Section and sub-Section headings in this Agreement are for convenience of reading only, and may not to be used or relied upon for interpretive purposes.
"App" means Fusit's mobile software application (currently known as fuse.ar).
"Account Content" means Content inputted, hosted, shared, posted, published, or otherwise generated by you in relation to your use of the App (such as your App Account profile picture, Messages, User Submissions, each as defined below).
"Content" means any text, data, information, images (such as logos and trademarks), graphics, sounds, videos, audio clips, links, and/or other similar materials.
"Documentation" means any electronic manuals, specifications, and similar documentation that accompany the App.
"Feature" means any module, tool, and/or feature of the App (such as those providing for content AR overlaying, AR masking, chroma key filtering, alpha blending, color filtering, audio filtering, video filtering, etc.).
"Fusit Affiliate" means, with respect to Fusit, any person, organization or entity controlling, controlled by, or under common control with, Fusit, where "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.
"Fusit Partners" means brand, media, or similar marketing partners of Fusit or a Fusit Affiliate.
"Intellectual Property" means any and all inventions, discoveries, improvements, new uses, works of authorship, technical information, data, technology, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, computer software and programs (including object code, source code, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property, in any form and embodied in any media, whether or not protectable or registerable.
"Intellectual Property Rights" means any and all rights, titles, and interests in and to Intellectual Property, including without limitation patents, copyright and similar authorship rights, mask work rights, trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.
"Law" means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
"Moral Rights" means any rights of paternity or integrity, any right to claim authorship of a work, to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, any work, whether or not such would be prejudicial to the honor or reputation of the creator of the work, and any similar right, existing under judicial or statutory law of any jurisdiction, or under any treaty.
"Site" means https://www.fuse.ar/
"Update" means an upgrade, update (such as a fix or patch), or other modification, improvement, enhancement or customization to or of the App.
If you are downloading the App from a third party app-distribution platform or store (an "App Platform"), please be aware that the App Platform may have established usage rules which also govern your use of the App ("Usage Rules"). We specifically refer to the Usage Rules of certain App Platforms in Schedule 1 attached below, but other Usage Rules may be applicable depending on where the App has been downloaded from. You represent that, prior to downloading the App from an App Platform, you have had the opportunity to review and understand its Usage Rules, and you warrant that you will comply with its Usage Rules. The Usage Rules that are applicable to your use of the App are hereby incorporated into this Agreement by reference. You also represent that you are not prohibited by any applicable Usage Rules and/or applicable Law from using the App; if you are unable to make such a representation you may not download or otherwise use the App.
Subject to the terms and conditions of this Agreement, Fusit grants you a limited, non-exclusive, non-assignable, non-sublicensable, revocable license, during the Term (defined below), to install the App (in executable code version) on a device that you own or control ("Device"), and use the App solely for your own personal and non-commercial use (the "License"). Use of the App must be in accordance with the Documentation.
You may make one (1) backup and one (1) archival copy of the App, provided your backup and archival copies are not installed or used on any device or other equipment, and further provided that all such copies shall bear the original and unmodified copyright, trademark, and other proprietary rights notices or legends displayed or contained on or in the App.
For the avoidance of doubt, the copy(ies) of the App, as well as the Documentation, are only licensed under this Agreement, and no title in or to such copy(ies) (or the App or Documentation themselves) passes to you. Except for the License, you are granted no other right in or to the App or Documentation, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise.
4.DATA AND PRIVACY
4.1.No Storage. The App is not intended to, and will not, operate as a data storage product or service, and you agree not to rely on the App for the storage of any Account Content whatsoever. You are solely responsible and liable for the maintenance and backup of all Account Content. Notwithstanding the foregoing, Fusit reserves the right to automatically download Account Content to Fusit's cloud-based database(s).
4.2.Data Stored On Device. You acknowledge that certain Account Content (including without limitation personal information and other information provided by you in connection with your use of the Device) may be saved to or stored on your Device (even if we do not collect that Account Content).
You shall not (and shall not permit or encourage any third party to) do any of the following: (a) reproduce the App; (b) sell, assign, lease, lend, rent, distribute, or make available the App to any third party, or otherwise use the App in a time-sharing, outsourcing, or service bureau environment; (c) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, decrypt, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying ideas, algorithms, structure, sequence, organization, and interfaces) of, the App; (d) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the App; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the App; (f) make a derivative work of the App, or use the App to develop any service or product that is the same as (or substantially similar to or competitive with) the App; (g) disclose to the public the results of any internal performance testing or benchmarking studies of or about the App, without first sending the results and related study(ies) to Fusit, and obtaining Fusit’s written approval of the assumptions, methodologies and other parameters of the testing or study; (h) publish or transmit any robot, virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the App; and/or (i) use the App to infringe, misappropriate or violate any third party's Intellectual Property Rights or personal rights (such as Moral Rights, rights of privacy, and publicity rights), or any Law. References in this paragraph to "App" shall be taken to mean the App in whole or in part, as well as any Documentation.
Your full compliance with the above limitations is a condition to the License; provided however, that such limitations shall not apply to the extent expressly permitted otherwise in this Agreement, or to the extent any limitation is prohibited by the Law applicable to you or by any Third Party Software Terms and Notices (defined below). You acknowledge that the App contains information and materials that are confidential and proprietary to Fusit (and may even constitute Fusit's, or a Fusit Affiliate's, trade secrets), and therefore you agree that a breach or threatened breach of this Section (License Restrictions) may cause Fusit and/or a Fusit Affiliate to suffer irreparable harm or damage for which monetary damages will be inadequate, and accordingly, if Fusit or a Fusit Affiliate seeks an injunction, specific performance, or other equitable relief to enforce any provision under this Section, Fusit or the Fusit Affiliate (as the case may be) shall not be required to post a bond or to prove the likelihood of irreparable harm.
To the extent you are given the right, under any Law applicable to you, to receive information and/or materials for purposes of making the App interoperable with other software products, you agree to first request from Fusit (in a reasonably detailed writing) access to such information and/or materials, and if Fusit accepts such request, Fusit may (in its sole discretion) impose additional conditions on such access and use (but such use shall in any event be solely for the purpose of achieving the desired inter-operability).
6.THIRD PARTY SOFTWARE
The App may include third party software components that are subject to open source and/or pass-through commercial licenses and/or notices ("Third Party Software" and "Third Party Software Terms and Notices", respectively). Fusit will reasonably comply with any valid written request submitted by you to Fusit for exercising your rights under such Third Party Software Terms and Notices. You acknowledge that your use of the App is also governed by such Third Party Software Terms and Notices, and that to the extent of any conflict between this Agreement and any Third Party Software Terms and Notices, the latter shall control. Any undertakings, representations, warranties, guarantees, conditions, indemnities or other commitments made by Fusit in this Agreement concerning the App (if any), are made by Fusit and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software. Notwithstanding the foregoing sentence or anything in this Agreement to the contrary, Fusit does not make any representation, warranty, guarantee, or condition, and does not undertake any defense or indemnification, with respect to any Third Party Software.
7.THIRD PARTY CONTENT AND SOURCES
The App may present, or otherwise allow you to view, access, link to, and/or interact with, Content from third parties and other sources that are not owned or controlled by Fusit (such Content, "Third Party Content"). The App may also enable you to communicate with the related third parties. The display or communication to you of such Third Party Content does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Fusit of such Third Party Content or third party, nor any affiliation between Fusit and such third party.
8.1.Responsibility. You are solely responsible and liable for your Account Content. Needless to say, Fusit is not responsible or liable for your Account Content, or for the way in which it is used by others. For example, when you send someone Content using the App, he or she will have a copy of that Content and will then be able to send it to, or share it with, others (whether via the App, through other online services, or offline). You hereby represent and warrant that: (a) your Account Content does not, and will not, infringe, misappropriate, or violate any third party's Intellectual Property Rights or personal rights (such as Moral Rights, rights of privacy, and publicity rights), or any Law; (b) your Account Content is not, and will not be, disparaging, threatening, offensive, harassing, deceptive, abusive, promoting of violence, and does not, and will not, contain obscenity or pornography; (c) your Account Content does not, and will not, contain any robot, virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the App; and (d) you have obtained, and will maintain during and after any termination of this Agreement, any and all licenses, permissions, consents, and authorizations required to grant each of the Account Content License, Promotion License, and Cross User Submission License (each as defined below).
8.2.No Obligation by Fusit. Fusit has no obligation to accept, display, review or maintain any of your Account Content. Fusit may, without notice, edit, replace and/or delete your Account Content in our sole discretion, including, without limitation, if we: (a) determine that you are in breach of any provision of this Agreement (for example, if your App Account profile picture contains nudity or impersonates another person, we may replace the picture with another picture we deem appropriate) or have violated (or are suspected by us of violating) any Law; and/or (b) deem it helpful or reasonably necessary to comply with any applicable Law, legal process, or governmental request, to enforce the Agreement (including investigations of potential violations thereof), to detect, prevent, or otherwise address fraud, security issues, and/or to protect against harm to the rights, property or safety of Fusit, our users, yourself or the public.
8.3.Messages. Without limiting the generality of the foregoing subsections, the App may permit you to send messages (such as invitations) or similar Content to Fusit or third parties ("Messages"). You are solely responsible and liable for the Content of your Messages, for the manner in which you send them, for the timing of sending them, and generally for the consequences of sending them. You acknowledge that many jurisdictions have Laws that require a recipient of a Message to give his/her prior consent (and that in certain cases such consent must be express, written and/or signed) to receive the Message, and you agree to: (a) obtain such consent prior to sending the Message; (b) provide Fusit, upon request, with a record or other evidence of such consent; and (c) immediately notify Fusit if the recipient revokes his/her consent. In any event, you agree to hold us harmless, and expressly release us, from any and all liability arising from Messages you send or receive.
8.4.User Submissions. Without limiting the generality of the foregoing subsections, the App may permit the posting and uploading of Content (such as mashups) by you and other users to online platforms, such as Instagram, Facebook, and Twitter ("User Submissions"). You understand that whether or not your User Submissions are published, we do not guarantee any confidentiality with respect to any User Submissions. You shall be solely responsible and liable for your User Submissions and the consequences of publishing them (including without limitation, for obtaining any consents from individuals appearing therein), and you agree to hold us harmless, and expressly release us, from any and all liability arising from your User Submissions. We have complete discretion whether to permit your User Submissions to be published, and we reserve the right without further notice to you, to monitor, censor, edit, delete, and/or remove any and all User Submissions at any time and for any reason.
You acknowledge that when accessing and using the App: (a) you will be exposed to User Submissions from a variety of sources, and that we are not responsible for the accuracy, usefulness, safety, or Intellectual Property Rights of, or relating to, such User Submissions; and (b) you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable. You hereby irrevocably waive any legal or equitable rights or remedies you may have against us with respect to (a) and (b) herein. If you suspect that any crime or other unlawful activity has been, or is being committed, please do not rely on Fusit's ability to edit or delete; rather, contact your applicable emergency services or law enforcement authority.
9.1.General. All references herein to the "App" shall include its Features as well. Fusit reserves the right to remove, modify, and/or add Features at any time, without any notice or obligation to you, and for any reason whatsoever. Some Features may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Fusit in its sole discretion. Moreover, if Fusit determines that you are in breach of any provision of this Agreement, we reserve the right to block you from certain Features. We make Features available because we believe it enhances the user experience of the App; but you acknowledge and agree that just because we make a Feature available, it does not mean we endorse, or can otherwise control, every manner in which such Feature is used. A new or modified Feature may be accompanied by separate or additional terms and conditions, in which case such terms will (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. Fusit may in its sole discretion charge for new Features and/or require additional personally identifiable information.
Without limiting the generality of the foregoing, you acknowledge that whereas Features currently make the App compatible for use with your Device, these Features may be removed or modified in the future.
9.2.Search Features. The App may include a search Feature that allows you to make generic searches of other App users (for example, by searching for "David"), which search results list all relevant users that match the search terms, as well as some of their Account Content (such as App Account name, profile picture, and profile video). You expressly consent to other App users making such generic searches that may result in your App Account and certain of your Account Content being made available to the searcher. If you do not wish to be searchable in this manner, you may opt-out of this Feature by turning it off via the App's settings.
9.3.Beta Products. Fusit may from time to time make available, in "beta" mode, new versions of the App and/or new Features that are still undergoing internal development and testing (each, a "Beta Product"). Beta Products may be time-limited, feature-limited, and/or functionality-limited. Fusit may also decide to only make a Beta Product available to closed list of App users. If Fusit makes a Beta Product available to you, you may use it on the following conditions: (i) you only use it for evaluation purposes; (ii) you comply with any specific guidelines issued by Fusit in respect of the Beta Product, which may include a requirement that you provide Feedback (defined below) and participate in surveys about the Beta Product; and (iii) you do not publicize the fact that there is a Beta Product, and you do not show, display, or otherwise make available the Beta Product to any other person (which includes, without limitation, making such disclosures to traditional or social media). For the avoidance of doubt, the provisions of this EULA that apply to the App (such as the License Restrictions in Section 5, the Disclaimers in Section 12, etc.) shall also apply to Beta Products.
All references herein to the "App" shall include the Updates we provide as well. Fusit may from time to time provide Updates, but shall not be under any obligation to do so. Such Updates will be supplied according to whatever then-current policies we may have in place, and some Updates may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Fusit in its sole discretion. Some Updates may include automatic updating or upgrading without any notice or obligation to you, and you consent to any such automatic updating or upgrading of the App. In some cases, you may be required to install the Update manually. An Update may be accompanied by separate or additional terms and conditions, in which case such terms will (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. Fusit may in its sole discretion charge for Updates and/or require additional personally identifiable information. Fusit is under no obligation to provide any technical support for the App.
11.1.App and Documentation. You hereby acknowledge that the App and Documentation are or may be protected by Intellectual Property (and similar) Laws, treaties, and conventions. Any rights not expressly granted herein are hereby reserved by Fusit and its licensors and suppliers. As between you and Fusit (and except for the License), Fusit is the sole and exclusive owner of: (a) the copy of the App and Documentation installed on your Device; and (b) all Intellectual Property Rights in and to the App, the Documentation, and all Content generated or otherwise provided or appearing on or in the App (except to the extent such Content constitutes your Account Content). For the avoidance of doubt, "Fusic" and "FusIt" (and their respective logos) are trademarks of Fusit and/or Fusit Affiliates, and all other trademarks appearing within the App are the trademarks of their respective owners.
11.2.Account Content Ownership and Licenses. As between you and Fusit, you are the sole and exclusive owner of your Account Content. Notwithstanding such ownership:
(A)You hereby grant Fusit and all Fusit Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully-paid, sublicensable (through multiple tiers of sublicensees), irrevocable and perpetual license, in any media format and through any media channels, to access and use: (a) your Account Content to perform under this Agreement, including without limitation to provide you with the functionality of the App and any technical support; and (b) your Account Content on an aggregated or otherwise anonymous basis for improving the App, analytics, and generally research and development (collectively, the "Account Content License"). The Account Content License shall survive any termination of this Agreement.
(B)You hereby grant Fusit, all Fusit Affiliates, and all Fusit Partners a worldwide, assignable, non-exclusive, royalty-free, fully-paid, sublicensable (through multiple tiers of sublicensees), irrevocable and perpetual license, in any media format and through any media channels, to access and use the User Submissions portion of your Account Content to reproduce, distribute (and otherwise broadcast and make available to the public), create derivative works of, publicly display, and publically perform such User Submissions in connection with: (a) marketing and promoting the App; (b) marketing and promoting Fusit, Fusit Partners, and/or any other third parties; and/or (c) monetizing the User Submissions (for example, through advertising) (collectively, the "Promotion License").
(C)You hereby grant each App user a worldwide, non-assignable, non-exclusive, royalty-free, fully-paid, non-sublicensable, irrevocable and perpetual license to access and use the User Submissions portion of your Account Content to reproduce, distribute, create derivative works of, publicly display and publicly perform such User Submissions to the extent permitted by the functionality of the App, and under this Agreement (the "Cross User Submission License"). The Cross User Submission License shall survive any termination of this Agreement.
11.3.Feedback. If you provide Fusit with any ideas, suggestions, or similar feedback about performance of the App and/or for improving the App ("Feedback"), you hereby grant Fusit and all Fusit Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully-paid, sublicensable (through multiple tiers of sublicensees), irrevocable, and perpetual license, in any media format and through any media channels, to use, copy, distribute, transmit, modify, create derivative works of, publicly display, publicly perform, and otherwise commercially exploit such Feedback (the "Feedback License"). You hereby represent and warrant that: (A) your Feedback does not, and will not, infringe, misappropriate or violate any third party's Intellectual Property Rights or personal rights (such as Moral Rights, rights of privacy, and publicity rights), or any Law; and (B) you have obtained, and will maintain during and after any termination of this Agreement, all licenses, consents, permissions and approvals required to grant the Feedback License. The Feedback License shall survive any termination of this Agreement.
11.4.Moral Rights Waiver. You hereby irrevocably waive (and agree never to assert) against Fusit, a Fusit Affiliate, Fusit's licensors and suppliers, and/or any other App user, any Moral Rights you may have in and to any of your Account Content and/or Feedback.
11.5.Copyright Infringement Takedowns (DMCA Policy). It is Fusit's policy to respect the legitimate rights of copyright owners, and we will respond to clear notices of alleged copyright infringement in accordance with our DMCA Policy set forth in Schedule 2 below.
12.1.THE APP, DOCUMENTATION, AND ANY CONTENT WHATSOEVER ARE PROVIDED AND MADE AVAILABLE TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET POSSESSION, TITLE, QUALITY OF SERVICE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY FUSIT AND ITS LICENSORS AND SUPPLIERS.
12.2.IN ADDITION, NEITHER FUSIT NOR ITS LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION:
REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE APP, DOCUMENTATION, OR SUCH CONTENT;
THAT YOUR USE OF, OR RELIANCE UPON, THE APP, DOCUMENTATION, OR SUCH CONTENT WILL MEET YOUR REQUIRMENTS OR EXPECTATIONS;
THAT THE APP, DOCUMENTATION, OR SUCH CONTENT WILL BE UNINTERRUPTED, SECURE, ERROR-FREE OR VIRUS-FREE, OR THAT DEFECTS IN THE APP WILL BE CORRECTED; OR
REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.
12.3.Some jurisdictions' Laws do not allow the disclaimer of certain implied warranties or conditions, and to the extent applicable to you, Fusit limits the duration of such warranties and conditions to the duration of ninety (90) days from the Effective Date.
12.4.YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION (DISCLAIMER) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND FUSIT.
13.LIMITATION OF LIABILITY
13.1.IN NO EVENT SHALL FUSIT, ANY FUSIT AFFILIATE, OR ANY OF OUR LICENSORS OR SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(A)ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B)ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
(C)ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR
(D)THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
13.2.THE COMBINED AGGREGATE LIABILITY OF FUSIT AND ALL FUSIT AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE LOWER OF: (A) FIVE U.S. DOLLARS (US $5), AND (B) THE AMOUNTS ACTUALLY PAID BY YOU (IF ANY) TO FUSIT OR A FUSIT AFFILIATE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU BRING YOUR CLAIM.
13.3.THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF FUSIT OR A FUSIT AFFILIATE HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION MATERIAL BREACH, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT OR TORT LIABILITY.
13.4.Some jurisdictions' Laws do not allow the exclusion or limitation of incidental or consequential damages, or of other damages, and to the extent applicable to you, such exclusions and limitations shall not apply. Furthermore, nothing in this Agreement shall be deemed to exclude or limit liability for death or personal injury resulting from negligence, or for fraud or fraudulent misrepresentation.
13.5.YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION (LIMITATION OF LIABILITY) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND FUSIT.
If any third party (including, but not limited to, a regulatory or governmental authority) brings any kind of demand, claim, suit, action or proceeding against Fusit, a Fusit Affiliate, and/or any of our respective directors, officers, employees, or representatives (each, an "Indemnitee"), and it is based upon or arises from:
(a)your use of the App; and/or
(b)your breach of any provision of this Agreement
(each of the foregoing, an "Indemnity Claim") then, upon written request by Fusit (to be decided in our sole discretion), you agree to assume full control of the defense and settlement of the Indemnity Claim; provided, however, that (c) Fusit reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases you agree to reasonably cooperate with Fusit's defense activities at your own cost and expense; and (d) you shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s).
In addition, and regardless of whether (or the extent to which) you controlled or participated in the defense and/or settlement of an Indemnity Claim, you agree to indemnify and hold harmless the Indemnitee(s) for and against: (e) any costs and expenses (including reasonable attorneys' fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (f) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including without limitation any fines or penalties).
15.TERM AND TERMINATION
15.1.Term. This Agreement commences on the Effective Date and shall continue in full force and effect until terminated in accordance herewith (the "Term").
15.2.Termination by Fusit. Fusit reserves the right to immediately terminate this Agreement, or otherwise modify, suspend or discontinue your access to and use of the App (or any part thereof), for any reason whatsoever, at any time, and without notice or obligation to you, and you agree that Fusit shall have no liability to you for any such termination, modification, suspension, or discontinuance.
15.3.Termination by You. You may terminate this Agreement at any time and for any reason, but only by either: (a) uninstalling the App and cancelling your App Account; or (b) giving Fusit ten (10) days' prior written notice, at firstname.lastname@example.org. If you object to any term or condition of this Agreement or any subsequent changes thereto, or become dissatisfied with the App in any way, your sole remedy is to terminate this Agreement. To uninstall the App, please use the application manager provided with your Device (or otherwise consult your Device manual).
16.CONSEQUENCES OF TERMINATION; SURVIVAL
Upon termination of this Agreement: (a) the License will automatically terminate and be deemed revoked, and you must immediately cease use of the App and uninstall and permanently delete it from the Device (as well as any other copies); and (b) your access to your App Account will be disabled, and Fusit may permanently delete your Activity Data. Sections 11 (Ownership) through 19 (Miscellaneous) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
This Agreement (including without limitation its validity and formation) shall be governed by, and construed in accordance with, the laws of the State of New York, USA without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.
Please read this Section carefully.
18.1.Mandatory, Bilateral Arbitration. YOU AND FUSIT AGREE THAT ANY DISPUTE, CONTROVERSY OR CLAIM ARISING UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT (EACH, A "Dispute") SHALL BE RESOLVED ONLY BY FINAL AND BINDING BILATERAL ARBITRATION, except that each party retains the right to bring an individual action in a small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s Intellectual Property Rights. This agreement to arbitrate is intended to be broadly interpreted.
(A)Arbitration Rules and Governing Law
●Notwithstanding your and Fusit’s agreement that New York law governs this Agreement and its validity, interpretation and application, you and Fusit hereby further agree that the Federal Arbitration Act, 9 U.S.C. § 1, et seq. ("FAA") applies to this agreement to arbitrate, and governs all questions of whether a Dispute is subject to arbitration.
●Unless you and Fusit expressly agree otherwise in writing in respect of a Dispute, the arbitration shall be administered by Judicial Arbitration and Mediation Services, Inc. ("JAMS"), pursuant to JAMS Streamlined Arbitration Rules and Procedures ("JAMS Streamlined Rules"), as modified by this Agreement (that is, the terms of this Section 18 govern if they conflict with any of the JAMS Streamlined Rules), and consistent with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness ("JAMS Consumer Fairness Standards"). The arbitrator must honor the terms and conditions of this Agreement (including without limitation all liability exclusions and limitations), and can award damages and relief, including any attorneys’ fees authorized by Law. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND FUSIT ARE HEREBY EACH IRREVOCABLY WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION (OR OTHER CLASS-WIDE PROCEEDING).
●Notwithstanding JAMS Streamlined Rule 8(b), you and Fusit agree that any dispute as to the arbitrability of a Dispute brought by either you or Fusit shall be resolved by a court of competent jurisdiction.
(B)No Class Arbitrations
THIS ARBITRATION AGREEMENT DOES NOT ALLOW CLASS ARBITRATIONS EVEN IF THE JAMS STREAMLINED RULES, (OR OTHER PROCEDURES OR RULES OF JAMS) WOULD. RATHER, YOU AND FUSIT ARE ONLY ENTITLED TO PURSUE ARBITRATION ON AN INDIVIDUAL BASIS. FURTHER, AND UNLESS YOU AND FUSIT EXPRESSLY AGREE OTHERWISE IN WRITING IN RESPECT OF A DISPUTE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL PARTY’S DISPUTE WITH ANY OTHER PARTY’S DISPUTE(S), AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR COLLECTIVE PROCEEDING.
(C)The Arbitrator's Decision
●The arbitrator will render an award in accordance with JAMS Streamlined Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. In the event any litigation should arise between you and Fusit in any court of competent jurisdiction in a proceeding to vacate or enforce an arbitration award, YOU AND FUSIT HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the proceeding be resolved by a judge. The arbitrator may award declaratory or injunctive relief only in favor of the plaintiff/claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable Law. Fusit will not seek, and hereby waives all rights Fusit may have under applicable Law, to recover attorneys’ fees and expenses if Fusit prevails in arbitration, unless you assert a frivolous claim.
●The arbitrator’s decision and award is final and binding, with some exceptions under the FAA.
(D)Location and Fees
●Unless you and Fusit expressly agree otherwise in writing, the arbitration will take place in-person at the following locations: (a) if you are a resident of a country in North America, Central America or South America, the arbitration will take place in New York City, New York, USA; or (b) if you are a resident of any other country in the world, the arbitration will take place in Tel Aviv-Jaffa, Israel. In the event JAMS indicates that it is unable to provide, or arrange for, an arbitrator in Israel, you agree that the arbitration will be held in New York City, New York, USA.
●If you initiate an arbitration for a Dispute, you will be required to pay $250 of the fee required to initiate the arbitration and Fusit will pay any remaining JAMS Case Management Fees and all professional fees for the arbitrator’s services; you will remain responsible for your respective costs relating to counsel, experts, witnesses, and travel to the arbitration.
●If Fusit initiates an arbitration for a Dispute, Fusit will pay all administrative fees and costs related to the arbitration, including all professional fees for the arbitrator’s services; you will remain responsible for your costs relating to counsel, experts, witnesses, and travel to the arbitration.
(E)Small Claims Court
Notwithstanding the foregoing, either party may bring an individual action in a small claims court for Disputes within the scope of such court’s jurisdiction. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the Law allows, seek relief against Fusit on your behalf.
18.2.Opting Out of this Mandatory Arbitration. You can decline this agreement to arbitrate by contacting email@example.com within thirty (30) days of the Effective Date and stating that you (include your first and last name, as well as your mailing address) decline this arbitration agreement. Furthermore, and notwithstanding the provisions regarding modification of the Agreement, if Fusit changes this Dispute Resolution Section after the Effective Date (or the date you accepted any subsequent changes to this Agreement), you may reject any such change by providing Fusit written notice of such rejection to firstname.lastname@example.org within thirty (30) days of the date such change became effective, as per the terms of this Agreement. In order to be effective, the notice must include your full name and clearly indicate your intent to reject the change(s) to this Dispute Resolution Section. By rejecting such change(s), you are agreeing that you will arbitrate any Dispute between you and Fusit in accordance with the provisions of this Dispute Resolution Section as of the Effective Date (or the date you accepted any subsequent changes to this Agreement), unless you declined this arbitration agreement in the manner described above.
18.3.Limitation on Claims. Regardless of any Law to the contrary, any claim or cause of action arising out of, or related to, this Agreement must be filed within one (1) year after such claim or cause of action arose, or else you agree that such claim or cause of action will be barred forever.
18.4.Confidentiality of Disputes. All aspects of the arbitration proceeding, including but not limited to the decision and award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain its confidentiality, unless (and in such cases, only the extent) otherwise required by applicable Law. This paragraph shall not prevent a party from submitting to a court of competent jurisdiction any information necessary to enforce an arbitration award, or to seek equitable relief.
19.1.Assignment. Fusit may assign this Agreement (or any of its rights and/or obligations hereunder) without your consent, and without notice or obligation to you. This Agreement is personal to you, and you shall not assign (or in any other way transfer) this Agreement (or any of your obligations or rights hereunder) without Fusit's express prior written consent. Any prohibited assignment shall be null and void.
19.2.Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
19.3.Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
19.4.Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by you, emails will be acceptable; for waivers by Fusit, the writing must be duly signed by an authorized representative of Fusit), and shall be valid only in the specific instance in which given.
19.5.Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
19.6.Notices. You agree that Fusit may send you notices by email, via your App Account, by regular mail, and/or via postings on or through App. Except as stated otherwise in this Agreement or required by Law applicable to you, you agree to send all notices to Fusit, to email@example.com.
19.7.No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Fusit Affiliates, Fusit's licensors and suppliers, other App users, and Indemnitees), there shall be no third-party beneficiaries of or under this Agreement.
19.8.U.S. Government Rights. The App is "commercial computer software" and the Documentation is "commercial computer software documentation," pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If you are an agency, department, employee or other entity of the United States Government, then your access to and use of the App and/or the Documentation shall be subject solely to the terms and conditions of this Agreement.
19.9.Export Compliance. You must not use or otherwise export or re-export the App or Documentation except as authorized by Export Control Laws. "Export Control Laws" means all applicable export and re-export control Laws applicable to you, as well as the United States' Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State. In the event you breach this Section (in whole or in part), you agree to indemnify and hold harmless Fusit and all Fusit Affiliates (including ours and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Fusit or a Fusit Affiliate (or such persons) as a result of such breach.
19.10.Force Majeure. Fusit shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond Fusit's reasonable control. For the avoidance of doubt, any problems relating to the hosting of the App shall not be deemed within Fusit's reasonable control.
19.11.Use of the App in a Vehicle. If you are using the App in a vehicle, you agree: (a) to comply with all applicable traffic Laws; and (b) if you are the driver, not to use the App unless your vehicle is stationary and legally parked.
19.12.Talent Listing Service. Fusit is a talent listing service. This Agreement is not a talent agency contract. Fusit is not a "Talent Agent" licensed pursuant to Section 1700.5 of the California Labor Code and does not engage in the occupation of procuring, offering, promising, or attempting to procure employment or engagement for an artist.
19.13.Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
You should print a copy of this Agreement for future reference.
APP PLATFORM USAGE RULES
If you download the App from the Apple, Inc. ("Apple") App Store (or in any event if you download an Apple iOS app) then, without derogating from the warranty disclaimers and limitation of liability as set forth in the Agreement:
You acknowledge and agree that:
the Agreement is concluded between Fusit and you only, and not with Apple, and Fusit and its licensors, and not Apple, are solely responsible for the App and the content thereof.
your use of the App is also subject to the Usage Rules established by Apple, including those set forth in the Apple App Store Terms of Service, effective as of the date that you enter into this Agreement.
the License granted herein is limited to a non-transferable right to use the App on an Apple iPhone, iPod Touch, iPad, or other Apple-branded product that you own or control and that runs the iOS;
Fusit is solely responsible for providing any maintenance and support services with respect to the App, as specified in the Agreement, or as required under applicable Law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
Fusit is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will, to the extent applicable, refund any purchase price paid (if any) by you 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 App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Fusit's sole responsibility;
Fusit, and not Apple, is responsible for addressing any product claims you, or any third party, may have relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation;
in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Apple shall not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
Apple and its subsidiaries are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary thereof.
You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints, or claims regarding the App, please contact Fusit at firstname.lastname@example.org.
By entering into the Agreement you, to the extent legally permitted, hereby waive any applicable law requiring that the Agreement be localized to meet your language and other local requirements. To the extent that the foregoing is not permitted, you agree to be bound by the standard Apple Licensed App End User License Agreement which is part of the Apple App Store Terms of Service, at www.apple.com/legal/itunes/us/terms.html#SERVICE (as amended from time to time).
Removal of Content. It is the policy of Fusit to respect the legitimate rights of copyright owners, and we will respond to clear notices of alleged copyright infringement. Pursuant to the Digital Millennium Copyright Act (the "DMCA"), we have designated a Copyright Agent (as specified below) to receive notifications of claimed copyright infringement in connection with the App. Please be advised that we enforce a policy that provides for the termination in appropriate circumstances of App users who are repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the Copyright Agent with the following information in accordance with the DMCA:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;
A description of the copyrighted work you claim has been infringed;
A description of where the material that you claim is infringing is located on the App, with enough detail that we may find it. Providing URLs in the body of an email is the best way to help us locate content quickly;
Your address, telephone number, and email address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Counter-Notification. If you believe that the material you posted was removed from the App by mistake, and that you have the right to post the material, you may elect to send us a counter-notification. To be effective the counter-notification must be a written communication provided to our Copyright Agent that includes substantially the following (please consult your legal counsel or see the DMCA to confirm these requirements):
Your physical or electronic signature;
Identification 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. Providing URLs in the body of an email is the best way to help us locate content quickly;
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; and
Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which the App may be found or accessed, and that you will accept service of process from the person who provided notification of infringement or an agent of such person.
Misrepresentations. Please note that under the DMCA (at 17 U.S.C. Section 512(f)) any person who knowingly materially misrepresents that material or activity is infringing or was removed or disabled by mistake or misidentification may be subject to liability.
Copyright Agent. Our agent for notice of claims of copyright infringement ("Copyright Agent") can be reached as follows:
Address: 730 Arizona Ave #206, Santa Monica, CA 90401.
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