These terms govern your use of the Fusion Services. Please read these terms carefully before using any Fusion Service
- Contract between You and Us
- The Fusion Services
- Your Content and Account
- Additional Provisions
Last Updated: October 1, 2013
Fusionis pleased to provide to you its sites, software, applications, content, products and services (“Fusion Services”), which may be branded Fusion or another brand owned or licensed by Fusion Media Network, LLC. These terms govern your use and our provision of the Fusion Services on which these terms are posted, as well as Fusion Services we make available on third-party sites and platforms if these terms are disclosed to you in connection with your use of the Fusion Services. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE FUSION SERVICES.
ANY DISPUTE BETWEEN YOU AND US MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION. PLEASE READ THE ARBITRATION PROVISION IN THESE TERMS AS IT AFFECTS YOUR RIGHTS UNDER THIS CONTRACT.
NOTHING IN THESE TERMS IS INTENDED TO AFFECT YOUR RIGHTS UNDER THE LAW IN YOUR USUAL PLACE OF RESIDENCE. IF THERE IS A CONFLICT BETWEEN THOSE RIGHTS AND THESE TERMS, YOUR RIGHTS UNDER APPLICABLE LOCAL LAW WILL PREVAIL.
This is a contract between you and Fusion Media Network, LLC a Delaware limited liability company located at 8551 NW 30th Terrace, Doral, FL 33122, USA, or between you and any different service provider identified for a particular FusionService. You must read and agree to these terms before using the FusionServices. If you do not agree, you may not use the FusionServices. These terms describe the limited basis on which the FusionServices are available and supersede prior agreements or arrangements. Supplemental terms and conditions may apply to some FusionServices, such as rules for a particular competition, service or other activity, or terms that may accompany certain content or software accessible through the FusionServices.
Supplemental terms and conditions will be disclosed to you in connection with such competition, service or activity. Any supplemental terms and conditions are in addition to these terms and, in the event of a conflict, prevail over these terms.
We may amend these terms. Any such amendment will be effective thirty (30) days following either our dispatch of a notice to you or our posting of the amendment on the FusionServices. If you do not agree to any change to these terms, you must discontinue using the FusionServices. Our customer service representatives are not authorized to modify any provision of these terms, either verbally or in writing.
We may immediately terminate this contract with respect to you (including your access to the FusionServices) if you fail to comply with any provision of these terms.
The Fusion Services are for your personal, noncommercial use and are intended for informational and entertainment purposes only. They do not constitute legal, financial, professional, medical or healthcare advice or diagnosis and cannot be used for such purposes. To support smooth operation of the Fusion Services across wide geographic areas, aspects of certain activities, such as game play, may be simulated to avoid delays.
The Fusion Services are our copyrighted property or the copyrighted property of our licensors or licensees and all trademarks, service marks, trade names, trade dress and other intellectual property rights in the Fusion Services are owned by us or our licensors or licensees. Except as we specifically agree in writing, no element of the Fusion Services may be used or exploited in any way other than as part of the Fusion Services offered to you. You may own the physical media on which elements of the Fusion Services are delivered to you, but we retain full and complete ownership of the Fusion Services. We do not transfer title to any portion of the Fusion Services to you.
Content and Software License
If a Fusion Service is configured to enable the use of software, content, virtual items or other materials owned or licensed by us, we grant you a limited, non-exclusive, non-sublicensable, non-transferable license to access and use such software, content, virtual item or other material for your personal, noncommercial use only.
You may not circumvent or disable any content protection system or digital rights management technology used with any Fusion Service; decompile, reverse engineer, disassemble or otherwise reduce any Fusion Service to a human-readable form; remove identification, copyright or other proprietary notices; or access or use any Fusion Service in an unlawful or unauthorized manner or in a manner that suggests an association with our products, services or brands. You may not access or use any Fusion Service in violation of United States export control and economic sanctions requirements. By acquiring services, content or software through the Fusion Services, you represent and warrant that your access to and use of the services, content or software will comply with those requirements.
Disclaimers and Limitation on Liability
THE FUSION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES NOT EXPRESSLY SET OUT IN THESE TERMS. WE SHALL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND PROPERTY DAMAGE, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL WE BE HELD LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OUR REASONABLE CONTROL. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED ONE THOUSAND U.S. DOLLARS (US $1,000).
THESE DISCLAIMERS AND LIMITATIONS DO NOT AFFECT YOUR RIGHTS AS A CONSUMER OR PURPORT TO LIMIT LIABILITY THAT CANNOT BE EXCLUDED UNDER THE LAW IN YOUR USUAL PLACE OF RESIDENCE.
Changes to the Fusion Services
The Fusion Services are constantly evolving and will change over time. If we make a material change to the Fusion Services, we will provide you with reasonable notice and you will be entitled to terminate this contract.
Additional Restrictions on Use of the Fusion Services
We do not allow uses of the Fusion Services that are commercial or business-related, or that advertise or offer to sell products or services (whether or not for profit), or that solicit others (including solicitations for contributions or donations). You agree not to knowingly or recklessly introduce a virus or other harmful component, or otherwise tamper with, impair or damage any Fusion Service or connected network, or interfere with any person or entity’s use or enjoyment of any Fusion Service. You agree not to use any software or device that allows automated gameplay, expedited gameplay, or other manipulation of gameplay or game client and you agree not to cheat or otherwise modify a Fusion Service or game experience to create an advantage for one user over another. Additionally, you agree not to access, monitor or copy any element of the Fusion Services using a robot, spider, scraper or other automated means or manual process without our express written permission.
Third-Party Services and Content
If you access a Fusion Service using an Apple iOS, Android or Microsoft Windows-powered device, Apple Inc., Google, Inc. or Microsoft Corporation, respectively, shall be a third-party beneficiary to this contract. However, these third-party beneficiaries are not a party to this contract and are not responsible for the provision or support of the Fusion Services. You agree that your access to the Fusion Services using these devices also shall be subject to the usage terms set forth in the applicable third-party beneficiary’s terms of service.
When you access the Fusion Services through a mobile network, your network or roaming provider’s messaging, data and other rates and fees will apply. Downloading, installing or using certain Fusion Services may be prohibited or restricted by your network provider and not all Fusion Services may work with your network provider or device.
User Generated Content
The Fusion Services may allow you to communicate, submit, upload or otherwise make available text, images, audio, video, competition entries or other content (“User Generated Content”), which may be accessible and viewable by the public. Access to these features may be subject to age restrictions. You may not submit or upload User Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.
We do not claim ownership to your User Generated Content; however, you grant us a non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, adapt, translate, create derivative works based upon, publicly perform, make available and otherwise exploit such User Generated Content, in whole or in part, in all media formats and channels now known or hereafter devised (including in connection with the Fusion Services and on third-party sites and platforms such as Facebook, YouTube and Twitter), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, with or without attribution, and without the requirement of permission from or payment to you or any other person or entity.
You represent and warrant that your User Generated Content conforms to these terms and that you own or have the necessary rights and permissions, without the need for payment to any other person or entity, to use and exploit, and to authorize us to use and exploit, your User Generated Content in all manners contemplated by these terms. You agree to indemnify and hold us and our subsidiary and affiliated companies, and each of their respective employees and officers, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against us by any third party arising out of or in connection with our use and exploitation of your User Generated Content. You also agree not to enforce any moral rights, ancillary rights or similar rights in or to the User Generated Content against us or our licensees, distributors, agents, representatives and other authorized users, and agree to procure the same agreement not to enforce from others who may possess such rights.
To the extent that we authorize you to create, post, upload, distribute, publicly display or publicly perform User Generated Content that requires the use of our copyrighted works, we grant you a non-exclusive license to create a derivative work using our copyrighted works as required for the purpose of creating the materials, provided that such license shall be conditioned upon your assignment to us of all rights in the work you create. If such rights are not assigned to us, your license to create derivative works using our copyrighted works shall be null and void.
We have the right but not the obligation to monitor, screen, post, remove, modify, store and review User Generated Content or communications sent through a Fusion Service, at any time and for any reason, including to ensure that the User Generated Content or communication conforms to these terms, without prior notice to you. We are not responsible for, and do not endorse or guarantee, the opinions, views, advice or recommendations posted or sent by users.
Some Fusion Services permit or require you to create an account to participate or to secure additional benefits. You agree to provide and maintain accurate, current and complete information, including your contact information for notices and other communications from us and your payment information. You agree not to impersonate or misrepresent your affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name or likeness, or provide false details for a parent or guardian. You agree that we may take steps to verify the accuracy of information you provide, including contact information for a parent or guardian.
We have adopted and implemented a policy that provides for the termination, in appropriate circumstances, of the accounts of users who are repeat infringers of copyright. In addition, we may suspend or terminate your account and your ability to use the Fusion Services if you engage in, encourage or advocate for illegal conduct, or if you fail to comply with these terms or any supplemental terms.
Passwords and Security
You are responsible for taking reasonable steps to maintain the confidentiality of your username and password, and you are responsible for all activities under your account that you can reasonably control. You agree to promptly notify us of any unauthorized use of your username, password or other account information, or of any other breach of security that you become aware of involving the Fusion Services.
The security, integrity and confidentiality of your information are extremely important to us. We have implemented technical, administrative and physical security measures that are designed to protect your information from unauthorized access, disclosure, use and modification.
Competitions that you enter on a Fusion Service may have supplemental rules and conditions, but the following general rules apply absent contrary terms in any supplemental rules or conditions for the competition.
Your competition entry is User Generated Content and subject to all provisions of these terms that govern your submission and our use of your User Generated Content. We may disqualify entries that are late, misdirected, incomplete, corrupted, lost, illegible or invalid or where appropriate parental authorization was not provided. Competition entries are limited to one per person and entries via agents or third parties or the use of multiple identities are not permitted. Use of automated entries, votes or other programs is prohibited and all such entries (or votes) will be disqualified.
We reserve the right to modify, suspend, cancel or terminate a competition or extend or resume the entry period or disqualify any participant or entry at any time without giving advance notice. We will do so if it cannot be guaranteed the competition can be carried out fairly or correctly for technical, legal or other reasons, or if we suspect that any person has manipulated entries or results, provided false information, or acted unethically. If we cancel or terminate a competition, prizes may be awarded in any manner we deem fair and appropriate consistent with local laws governing the competition.
To enter a competition, you must be a registered user of the Fusion Services and have an active account with current contact information. No purchase is necessary to enter a competition and a purchase will not improve your chances of winning. Competitions are not open to our employees (or their immediate families) or anyone else professionally associated with the competition. If you are under age 18 (or the age of majority under applicable law) and the competition is open to you, we may need your parent or guardian’s permission before we can accept your entry. We reserve the right to request proof of identity or to verify eligibility conditions and potential winning entries, and to award any prize to a winner in person. Competitions are void where prohibited or restricted by law. Potential winners who are residents in jurisdictions where competitions require an element of skill may be required to answer a mathematical test in order to be eligible to win a prize.
No cash or alternative prizes are available, except that we (or the party providing a prize) reserve the right to substitute a similar prize of equal or greater value. Prizes cannot be transferred (except to a child or other family member) or sold by winners. Only the number of prizes stated for the competition is available to be won and all prizes will be awarded provided a sufficient number of eligible entries are received and prizes are validly claimed by the date provided in connection with the competition, after which no alternate winners will be selected or unclaimed prizes awarded. Unless otherwise disclosed in the prize description prior to entry, winners are responsible for all costs and expenses associated with claiming a prize. All taxes are solely the responsibility of each winner, although we reserve the right to withhold applicable taxes and each winner agrees to complete any required tax forms.
Your acceptance of a prize constitutes agreement to participate in reasonable publicity related to the competition and grants us an unconditional right to us to use your name, town or city and state, province or country, likeness, prize information and statements by you about the competition for publicity, advertising and promotional purposes and to comply with applicable law and regulations, all without additional permission or compensation. As a condition of receiving a prize, winners (or their parents or guardians) may be required to sign and return an affidavit of eligibility, liability release and publicity release.
Our company policy does not allow us to accept or consider unsolicited creative ideas, suggestions or materials. In connection with anything you submit to us – whether or not solicited by us – you agree that creative ideas, suggestions or other materials you submit are not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of review, compensation or consideration of any type.
Notifications of claimed copyright infringement and counter notices must be sent to our designated agent:
Fusion Copyright Compliance
8551 NW 30th Terrace, Doral, FL 33122
We are only able to accept notices in the languages into which these terms are made available by us.
We will respond expeditiously to claims of copyright infringement committed using the Fusion Services that are reported to our Designated Copyright Agent, identified above, in accordance with the U.S. Digital Millennium Copyright Act of 1998 (“DMCA”) or, as applicable, other laws. With respect to Fusion Services hosted in the United States, these notices must include the required information set forth in the DMCA and described in detail here.
To be effective, the notification must be a written communication that includes the following:
- A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has 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; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We may give you notice that we have removed or disabled access to certain material by means of a general notice on any Fusion Service, electronic mail to a user’s email address in our records, or by written communication sent by first-class mail to your physical address in our records. If you receive such a notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
- 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;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a U.S. Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Fusion may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Choice of Forum
You agree that any action at law or in equity arising out of or relating to these terms or the Fusion Services shall be filed, and that venue properly lies, only in the state or federal courts located in the borough of Manhattan, New York, New York, United States of America and you consent and submit to the personal jurisdiction of such courts for the purposes of litigating such action.
Choice of Law
These terms are governed by and construed in accordance with the laws of the State of New York and the laws of the United States, without giving effect to any conflict of law principles.
You and Fusion agree to arbitrate all disputes between you and Fusion or its affiliates, except disputes relating to the enforcement of Fusiony or its affiliates’ intellectual property rights. “Dispute” includes any dispute, action or other controversy between you and us concerning the Fusion Services or these terms, whether in contract, tort, warranty, statute or regulation, or other legal or equitable basis.
In the event of a dispute, you or Fusion must send to the other party a notice of dispute, which is a written statement that sets forth the name, address and contact information of the party giving the notice, the facts giving rise to the dispute, and the relief requested. You must send any notice of dispute to Fusion Media Network, LLC, 8551 NW 30th Terrace, Doral, FL 33122, Attention: Legal/Arbitration Notice. We will send any notice of dispute to you at the contact information we have for you. You and Fusion will attempt to resolve a dispute through informal negotiation within sixty (60) days from the date the notice of dispute is sent. After sixty (60) days, you or we may commence arbitration. You may also litigate a dispute in small claims court if the dispute meets the requirements to be heard in small claims court, whether or not you negotiated informally first.
If you and Fusion do not resolve a dispute by informal negotiation or in small claims court, the dispute shall be settled by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act. YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY. Arbitration will be administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and its Supplementary Procedures for Consumer Related Disputes. For more information, visit http://www.adr.org or, in the United States, call 800-778-7879. Arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator may award damages to you individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim.
Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, Fusionwill pay all filing, AAA, and arbitrator’s fees and expenses. If the arbitrator issues you an award that is greater than the value of our last written settlement offer made before an arbitrator was selected (or if we did not make a settlement offer before an arbitrator was selected), then we will pay you the amount of the award or US $1,000, whichever is greater, and pay your attorney, if any, the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that you or your attorney reasonably accrue for investigating, preparing and pursuing your claim in arbitration. We waive any right to seek an award of attorneys’ fees and expenses in connection with any non-frivolous arbitration between you and us.
If you are a resident of the United States, arbitration will take place at any reasonable location convenient for you. For residents outside the United States, arbitration shall be initiated in the borough of Manhattan, New York, New York, United States of America, and you and Fusion agree to submit to the personal jurisdiction of the federal or state courts located there, in order to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ON AN INDIVIDUAL BASIS. Neither you nor Fusion will seek to have a dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.
If any provision of these terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
The provisions of these terms which by their nature should survive the termination of these terms shall survive such termination.
No waiver of any provision of these terms by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these terms shall not constitute a waiver of such right or provision.