BY SIGNING UP FOR AND/OR OTHERWISE ACCESSING ANY OF THE SERVICES OR PRODUCTS OFFERED BY FUZION HEALTH GROUP YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THESE TERMS & CONDITIONS SUPERSEDE ALL EARLIER VERSIONS AND REQUIRE MANDATORY ARBITATION OF DISPUTES. Please carefully read these terms and conditions as they describe your legal rights and obligations. This agreement shall become come effective as of the date of (1) your electronic signature on or acceptance of this agreement, (2) the activation of your account or (3) your receipt of an e-mail from Fuzion Health Group confirming your order, whichever happens first.
For the purposes of this Agreement:
1.1. "Fuzion's Equipment" shall mean computer and telecommunications device, Internet access and/or transmission rights owned, operated, and/or maintained by Fuzion and/or Fuzion's agents or assigns which function to provide the Fuzion Services.
1.2. "Fuzion" "us," "we, "our" and grammatical variants thereof shall collectively refer to Fuzion Health Group, a company organized and existing under the laws of the State of Georgia located at 5887 Glenridge Dr., Suite 200, Atlanta, GA, and its assigns and successors in interest.
1.3. "Fuzion Services" shall mean the products and services provided by Fuzion at any given time, including but not limited to Database Access, Database file download, e-mail updates, and any associated support services, which services may be changed, amended, and/or otherwise altered at any time in Fuzion's sole discretion.
1.4. "Content" shall mean the downloadable files which are interpreted by a client web browser for display with or without plug-ins.
1.5. "Database" shall mean the structured files of records, containing information on Physicians, fellows and residents seeking employment opportunities, and all updates, improvements, modifications, enhancements, and information related to installation of the Database at your home or office.
1.6. "Database Access" shall mean the Database to be presented to you on Fuzion web site, together with the abilities to search, sort and browse through its content interactively.
1.6. "Customer Service" shall refer to communication from us to you dealing with problems or questions relating to services provided by us to you.
1.7. "Fee" shall mean monies and other consideration you are obligated to pay to Fuzion for the right to use the Fuzion Services subject to the terms and conditions of this Agreement and of the particular Fuzion Services for which you have registered, as outlined on the then-current schedule of fees. Fees may be changed at any time on thirty days notice.
1.8. "Fee Schedule" shall mean the fees for the Fuzion Services as published on the Fuzion website, which may be modified at any time in Fuzion's sole discretion pursuant to the provisions of 23.1.
1.9. "Parties" shall collectively refer to Fuzion and you.
1.10. "Suspend" or "Suspension" shall include the disabling of your account and the cessation of provision of Fuzion services to you with exception of Customer Service.
1.11. "Technical Support" shall refer to communications from us to you dealing with problems or questions relating to technical matters involving software or services provided by us to you.
1.12. "You", "your" and grammatical variants thereof shall mean you, any other entity which has an ownership or other beneficial interest in you, or any other entity in which you have an ownership or other beneficial interest.
Subject to and conditioned upon Fuzion's retained rights and all other terms and conditions set forth in this Agreement, Fuzion offers the Fuzion Services as soon as practicable after registration for and payment of any and all fees due. You will receive a password, account and instructions upon completion of the registration process. You are responsible for maintaining the confidentiality of both your password and your account and are fully responsible for all activities that occur under your password and your account. You agree to immediately notify Fuzion of any unauthorized uses of the account or any other breaches of security. Fuzion cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will Fuzion be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. The Fuzion Services are subject to the following conditions and restrictions:
2.1.1. Fuzion shall provide to you a non-exclusive and limited license to use the Database Access for your non-exclusive use for the exclusive purpose of using this data in your own recruiting process. Sharing of information with any person, company, or facility other than yours is strictly forbidden. Depending on particular Fuzion Services for which you have registered, you are provided with either single user or multiple user license option. Single user license option means that the information may be used by a single person, you or your employee or agent who have a need to know consistent with your use thereof under this Agreement. You agree that you will not distribute the password and account information in part or in its entirety to any of your wholly owned or managed facilities without the permission of Fuzion. Multiple user licenses are customized to the situation by Fuzion and are furnished to clients on a case-by-case basis. Source code or other information pertaining to the logic design of the Database Access is specifically excluded from the license granted hereunder.
2.1.2. Fuzion, either directly or through its assignee or licensee, shall provide Customer Service relating to Fuzion Services consisting of replying to customer questions or complaints regarding services provided by us to you. Fuzion is not obligated to provide any Customer Service except as specified in this Section 2. Any and all requests for additional Customer Service may be refused by Fuzion with or without reason. Any additional Customer Service which Fuzion may subsequently agree to provide to you shall be at Fuzion's sole discretion and once commenced, may be terminated at any time by Fuzion without notice to you and without any liability to Fuzion. Notwithstanding the foregoing, Fuzion at its sole discretion may at any time alter or cease providing the Customer Service which it has agreed to provide to you relating to Database Access pursuant to this Agreement without any liability to Fuzion.
2.1.3. Fuzion, either directly or through its assignee or licensee, shall provide Technical Support relating to Database Access consisting of replying to communications from and to end users dealing with problems or questions relating to technical matters involving software or services provided by us to you. While Fuzion is not obligated to provide any Technical Support except as specified in this Section 2, you may contact us to request additional Technical Support on a fee for service basis to be arranged between Fuzion and you. Any and all requests for additional Technical Support may be refused by Fuzion with or without reason, in its sole discretion. Any additional Technical Support which Fuzion may subsequently agree to provide to you shall be at Fuzion's sole discretion and once commenced, may be terminated at any time by Fuzion without notice to you and without any liability to Fuzion. Notwithstanding the foregoing, Fuzion at its sole discretion may at any time alter or cease providing the Technical Support which it has agreed to provide to you relating to Database Access pursuant to this Agreement without any liability to Fuzion.
2.1.4. All use of Database Access and provision of services to you by Fuzion shall be subject to all terms and conditions set forth herein. You may not attempt to expand or alter these rights or Fuzion's services by entering into multiple agreements.
2.1.5. Fuzion may suspend performance under or terminate this Agreement immediately and without notice, and take any other actions it deems necessary, in its sole discretion, to comply with the relevant laws if it is informed or otherwise believes, in its sole discretion, that your conduct violates the intellectual property rights of us or any third party or is otherwise the subject of a dispute. As more completely set forth in Sections 5, 6, and 9, you waive any and all clams you may have, now and forever, against Fuzion relating to the Database and Database access and agree to indemnify and hold harmless Fuzion from and against any such claims.
2.3.1. Fuzion may, in its sole discretion, provide you with the Database in form of downloadable file in electronic form in combination with Database Access. Upon payment of all fees due and owing to Fuzion under this Agreement, Fuzion hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the Database for your own recruiting purposes use during the term of this Agreement. Depending on particular Fuzion Services for which you have registered, you are provided with either single site or multiple site license option. Single site license option means that the information may be used in a single physical location only. Multiple site facilities agree that they will not duplicate or distribute the Database in part or in its entirety to any of their wholly owned or managed facilities without the permission of Fuzion. Multiple site licenses are customized to the situation by Fuzion and are furnished to clients on a case-by-case basis. Any rights not expressly granted herein shall be reserved for Fuzion.
2.3.2. Although the Database file is generally provided free of charge, Fuzion reserves the right to charge for the Database file or any upgrades therefor at any time.
2.3.3. You recognize that the Database and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of the Database at your home or office, are proprietary, and that all rights thereto, including copyright, are owned by Fuzion. You further acknowledge that you have been advised that the Database, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of Fuzion, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to Fuzion, and that its use and disclosure must be carefully and continuously controlled. In order to monitor and enforce this agreement, Fuzion reserves the right to include a small number of fictitious records in the Database licensed to you. You agree that these fictitious names are necessary and that Fuzion will not be liable to you for any costs or expenses you may incur.
2.3.4. Fuzion shall at all times retain title to all the Database and all related information, including all updates, improvements, modifications and enhancements, furnished to you hereunder.
2.3.5. Unless provided otherwise in the specifications for Your Services, the Database supplied hereunder is for the your business use only. You shall not permit any third party to use the Database or allow access to the Database from sites outside of your home or business premises except as specifically authorized in writing by Fuzion. The Database is to be used only for the purposes specified in this Agreement and specifically as restricted in the following three subparagraphs of this Section 2.
2.3.6. While this Agreement is in effect, or while you have custody or possession of the Database or any part of it, you will not: (i) reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, the Database or any part of it, whether such Database is in written, electronic, magnetic or any other form, except pursuant to reasonable backup procedures, or for use in Your database pursuant to this Agreement, and if permitted by your license option, nor; (ii) provide or make the Database available to any person or entity other than your employees or agents who have a need to know consistent with your use thereof under this Agreement, and if permitted by your license option, nor; (iii) copy for your own use or the use of others operator manuals, system reference guides, training materials and other user-oriented materials without the prior written consent of Fuzion.
2.3.7. You agree to notify Fuzion forthwith if you obtain information as to any unauthorized possession, use or disclosure of Database or any part of it by any person or entity, and further agree to cooperate with Fuzion at Fuzion's expense, in protecting Fuzion's proprietary rights.
2.3.8. Unless agreed otherwise in writing by Fuzion, the Database may be used only on a single computer or workstation, with the exception that the Database may be installed on both a portable and a stationary computer but may not be used on both simultaneously. You may not install the Database on a network except to facilitate permissible installation of the Database on computers attached to the network. You warrant and guarantee that all users of the Database shall be aware of and comply with the terms of this license.
2.3.9. In the event of termination of this Agreement, or upon any act which shall give rise to Fuzion's right to terminate, or upon the expiration of the license for Database which is subject to a limited-duration license, any and all licenses granted under this Section 2.3 shall terminate automatically, and you will remove, erase or destroy the Database file, and any parts of it, and documentation and all copies thereof, wherever located, without demand or notice.
Fuzion has developed a technology that attempts to match and rate the suitability of wants and needs of clients with the wants and needs of physicians. Fuzion makes no claims regarding the suitability or accuracy of its matching capability. You should not rely on, make decisions based on, or even try to compare candidates based on the relative ranking of both candidates and opportunities. Understand that this service is provided simply as an attempt to help the clients save time. Each physician and client must use all information and decide what is best for them regarding the best physician/client match. Fuzion accepts absolutely no liability based on its matching capability.
3.1. Certain Fuzion Services are subject to set-up and service fees, pursuant to the Fee Schedule, and by registering for such Fuzion Services you agree to pay Fuzion any and all such fees. Invoices are payable within fifteen (15) days of invoice date and all unpaid amounts will be subject to a service charge of 1Ѕ% per month.
3.2. Fuzion agrees to provide Fuzion Services in exchange for your payment to Fuzion of a monthly, quarterly, or annual Fee, pursuant to the Fee Schedule, for service in any given month, quarter, or year, not later than the first of that month, or of that quarter, or the anniversary date of this Agreement. In the event that Fuzion determines that the services of a collection agency are necessary or appropriate to collect amounts due under this paragraph, which determination shall be made in Fuzion's sole and unfettered discretion, any and all collection agency fees and other costs of collection shall be added to the amount due under this provision. You shall pay all costs of collection, including reasonable attorney's fees and costs, in the event any invoice requires collection efforts.
3.3. All Fees must be paid in United States Dollars in advance of the provision of services.
3.4. Fuzion may offer subsequent promotional rates or special offers, the terms of which may or may not be more favorable than the terms and conditions for Your Services. Any such promotions or modifications shall not effect your obligations under this Agreement. Promotional fees may be subject to additional terms and conditions which, to the extent they conflict with the terms of this Agreement, shall govern. Promotional fees and special offers may not be combined.
3.5. Upon cancellation of this Agreement you will receive a prorated refund of any pre-paid, refundable fees for the remainder of any term. Fees for certain services, including but not limited to database access fees, set up fees, shipping and handling, are not refundable unless provided otherwise by applicable local law. Fuzion may, in its sole discretion, refund other amounts, as it deems necessary or advisable.
Receipt by Fuzion of email messages and other data for storage and/or transmission via Fuzion's Equipment which are inconsistent with your warranties set forth in Section 7 herein shall not constitute an agreement by Fuzion to allow the Fuzion Services or the Fuzion Equipment to be used to disseminate such information or data in whole or in part, by any means, or if once disseminated via the use of Fuzion's Services or Equipment, to continue to disseminate such data.
THE FUZION SERVICE AND DATABASE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. FUZION DOES NOT WARRANT THAT THE FUZION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES FUZION MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE FUZION SERVICES. NO WARRANTY IS MADE BY FUZION REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND FUZION HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF SERVICES OR GOODS PROVIDED TO YOU HEREUNDER, INCLUDING BUT NOT LIMITED TO YOUR SERVICES AND FUZION WEB SITE; AND (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FUZION DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE FUZION SERVICES WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS. YOU AGREE AND ACKNOWLEDGE THAT NO REPRESENTATIONS OF ANY KIND HAVE BEEN MADE TO YOU REGARDING THE QUALIFICATIONS, ABILITIES, SKILLS, OR SUITABILITY FOR EMPLOYMENT OF PERSONS REPRESENTED IN THE DATABASE.
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL FUZION, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE FUZION SERVICES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH STATES OR JURISDICTIONS, FUZION'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE DATABASE LICENSE OR IN THIS AGREEMENT, FUZION DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE FUZION SERVICES, AND FUZION WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE FUZION FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF FUZION FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO FUZION IN THE TWELVE MONTHS PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED $50,000.
7.1. You agree and warrant that the contact information you have provided to Fuzion is complete and accurate, and you further agree to notify Fuzion within fifteen days of a change to any such contact information. Contact information includes your name, e-mail address, and mailing address and the name, mailing address, telephone number, facsimile number, and e-mail address of the administrative contacts of your facility, if any.
7.2. You agree and warrant that your use of the Fuzion Services and Fuzion's Equipment, and all sales and distributions, by any and all means, of any type(s) of Content including, but not limited to, executable files (such as .EXE), digitized audio/visual files (such as MP3); goods, including, but not limited to, videotapes and CD-ROM products, and any type of services by you, which are advertised and/or promoted by, or are in any other way directly or indirectly associated with your use of the Fuzion Services or Fuzion Equipment, shall at all times comply with all applicable laws, including, but not limited to, all federal, state and local laws throughout the United States of America.
7.3. You agree and warrant that you will neither store on nor allow to be transmitted by Fuzion's Equipment any data or other matter which constitutes pornography or which involves depictions of nudity in all forms, or sexuality by an age-inappropriate-looking performer.
7.4. You agree and warrant that all data, visual materials, advertising and other matter you store on or allow to be transmitted by Fuzion's Equipment shall be solely for business purposes and that you shall assume the sole responsibility and duty to ensure that all such data, visual materials, advertising and other matter shall be transmitted exclusively to willing adults and only to places in which such materials comply with contemporary community standards.
7.6. You agree and warrant that all data, visual materials, advertising and other matter you store on or allow to be transmitted by Fuzion's Equipment shall not violate any state or federal laws concerning obscenity and shall not contain any depictions of bestiality, incest, rape, sexual assault, actual physical violence, torture or disfigurement, or other content deemed objectionable by Fuzion, in its sole discretion.
7.7. You agree that if, in Fuzion's sole and exclusive judgment, Fuzion concludes that Your data, visual materials, advertising and other matter you store on or allow to be transmitted by Fuzion's Equipment displays or contains any harmful matter or indecent materials or communications, or displays or contains any material that consists of pornography or child pornography or which could otherwise result in harm to minors; then Fuzion may, without prior notice to you and in Fuzion's sole and exclusive discretion, either suspend your account, and/or terminate this Agreement, without any liability of any kind to Fuzion from either you or any third party.
7.8. You agree that in the event that Fuzion is informed by any party that your use of Fuzion Services infringes the copyright of any party, or violates the right of publicity or privacy of any party, or consists of any other claim or violation of intellectual property rights of any kind, then Fuzion may, without prior notice to you and in Fuzion's sole and exclusive discretion, either suspend your account, and/or terminate this Agreement, without any liability of any kind to Fuzion from either you or any third party. As more completely set forth in Sections 5, 6 and 9, you waive any and all claims you may have, now and forever, against Fuzion relating to any action taken in response to the claim that you have infringed the intellectual property rights of a third party, and agree to indemnify and hold harmless Fuzion from and against any such claims.
7.9. You affirmatively represent, agree and warrant that you have and at all times shall have all necessary intellectual property rights, including, but not limited to, all copyrights, trademark and service mark rights and rights of publicity, both in the United States and throughout the world, to reproduce and disseminate, via the Internet, all data which you store or which you otherwise promote, advertise, disseminate and/or distribute to anyone by your direct or indirect use of the Fuzion Services or Fuzion's Equipment, including, without limitation, all advertising and promotional materials, prior to and at all times during the time such materials are promoted, advertised, disseminated or distributed through any direct or indirect use of the Fuzion Services or Fuzion's Equipment.
7.10. You agree and warrant that no data or other matter you store on or allow to be transmitted by Fuzion's Equipment shall constitute or contain material which is libelous, slanderous, defamatory, or which will violate or infringe upon or will otherwise give rise to any adverse claim with respect to any common law or other right of any person or other entity, including, without limitation, privacy rights and all other personal and proprietary rights.
7.11. You agree and warrant that no data or other matter you store on or allow to be transmitted by Fuzion's Equipment shall contain any material which is harmful, violent, threatening, abusive or hateful.
7.12. You agree and warrant that any and all material(s) of every kind which you store or transmit using Fuzion's Services or Equipment shall at all times be free from any and all damaging software defects, including, but not limited to, software "viruses", "worms", "Trojan Horses," and other source code anomalies, which may cause software or hardware disruption or failure, reduced computer operating speed, or compromise any security system. You agree that you will not attempt to access the Fuzion Equipment or web site or another customer's web site without authorization.
7.13. You agree and warrant that you shall not engage in any false, deceptive or fraudulent activities in association with your use of the Fuzion Services or Fuzion's Equipment
7.14. All use of Fuzion's Services and Equipment shall at all times be in a manner consistent with this Agreement and shall not in any way impair the functioning or operation of Fuzion's Equipment or web site. Should your use of the Fuzion Services result in an overly high load on the Fuzion Equipment, in Fuzion's sole discretion, Fuzion may suspend your account until the cause of any such overload is determined and resolved.
7.15. You agree and warrant that all applicable taxes have been paid or will be paid in full by you when due regarding all businesses and employees associated with your use of the Fuzion Services and that no taxing authorities shall have any claim against Fuzion or any persons affiliated therewith for the payment of such taxes.
7.16. You represent and warrant that you are over eighteen years of age (twenty one in places where eighteen years is not the age of majority) and are fully competent to enter into this Agreement.
During the course of this Agreement you may gain access to certain confidential, proprietary and trade secret business or technical information belonging to Fuzion in connection with Fuzion's performance of the Fuzion Services ("Confidential Information"). You agree to preserve the confidentiality of all Confidential Information that is provided in connection with the Agreement, and shall not, without the prior written consent of Fuzion, disclose or make available to any person, or use for your own or any other person's benefit, other than as necessary in performance of your obligations under this Agreement, any Confidential Information of Fuzion. Fuzion retains all right and title to such Confidential Information.
You agree that you shall fully defend and indemnify Fuzion, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys' fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 7 or your violation of a third party's intellectual property rights. You further agree to defend, indemnify and hold harmless Fuzion, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys' fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that Fuzion shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between Fuzion and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between Fuzion and you. Fuzion's relationship to you shall be restricted to matters pertaining to the provision of the Fuzion Services as set forth in this agreement.
11.1. You confirm, understand, acknowledge and expressly agree that neither Fuzion, any agent or representative of Fuzion, nor any other person is currently representing or otherwise directly or indirectly communicating in any manner herein or otherwise, nor has at any time in the past, represented to you or has otherwise directly or indirectly communicated in any manner to you any guarantee, reassurance or any other communication of any kind regarding:
11.1.1. the potential profitability or likelihood of success of your endeavors through the use of the Fuzion Services as set forth herein or otherwise;
11.1.2. the possibility or likelihood that use of any products and/or services provided by Fuzion pursuant to this Agreement can or will result in the recoupment of any funds expended by you for any purpose; or
11.1.3. the existence, nonexistence, size or any other characteristics of any market for any products or services which involve your use, in any manner, of the Fuzion Services pursuant to this Agreement.
11.2. You expressly acknowledge and agree that the success of any business endeavors which involve your use, in any manner, of the Fuzion Services and/or Fuzion's Equipment pursuant to this Agreement, like any other business endeavor, is subject to numerous factors, such as the effectiveness of its advertising and promotion, your administrative capabilities, etc., and that the ultimate success or failure of your business rests with you and not Fuzion. You further expressly agree not to raise any claim of any kind against Fuzion and to hold Fuzion harmless from any claim of financial investment loss to you directly or indirectly resulting from your decision to use the Fuzion Services and/or Fuzion's Equipment pursuant to this Agreement.
Any and all services which are or may be provided to you by Fuzion pursuant to this Agreement, including the licensure of rights herein, are not exclusive and nothing in this Agreement shall limit or restrict Fuzion from providing similar services and granting similar licenses to third parties regardless of whether such third parties are competitors of you. Nothing in this Agreement shall limit or restrict Fuzion from engaging in any activities similar to yours or in competition with you.
Fuzion and you agree that, consistent with the strict policy of Fuzion, and in reliance on your express warranties regarding the substantive content of data, advertisements, communications, messages and other materials which you shall store and/or otherwise disseminate via the use of Fuzion's Services or Equipment, Fuzion shall neither have nor exert any editorial or other subjective control over the substantive content of such data, advertisements, communications, message or other materials. Fuzion shall not engage in any monitoring of such content.
14.1. Unless sooner terminated pursuant to other terms of this Agreement, and except as otherwise provided in this Agreement, this Agreement shall be for an initial term of one year and shall be automatically renewed each year for additional one year periods unless and until sooner terminated pursuant to the provisions of this Section 14. Fuzion may accept prepayment for services to be provided under this Agreement, but such acceptance shall not modify or extend the term of this Agreement.
14.3. You or Fuzion may terminate this Agreement at any time for any reason, with or without cause, upon thirty days' written notice. Fuzion may suspend performance under or terminate this Agreement and cease transmission of data associated with Fuzion Web Site immediately and without notice:
14.3.1. if Fuzion, in its sole discretion, deems that you have breached any part of this Agreement, including, without limitation, any warranty or obligation set forth in Section 7,
14.3.2. if your bank rejects checks you have sent for payment of fees or charges, or you refuse authorization for same, or
14.3.3. if payment for the Fuzion Services is more than fifteen days overdue.
14.4. You further agree that in the event that Fuzion believes, in its sole discretion, that you have breached any provision(s) of Section 7 of this Agreement, or any of its subparts, by storing or allowing material such as that described in the aforementioned Section 7, or any of its subparagraphs, to be transmitted by Fuzion's Equipment, that Fuzion may without any liability to you, and in addition to any other remedies, erase or purge such materials from Fuzion's Equipment without prior notice to you.
14.5. After termination, you will no longer have access to your account and all information or content, including but not limited to custom lists, stored profiles, databases, or other data files associated with your account may be deleted. Fuzion accepts no liability for such deleted information or content. Fuzion may, in its sole discretion, make such information or content available to you to the extent it has not been deleted.
15.1. It is Fuzion's policy to respect your privacy. Fuzion will not trade, sell, or disclose any personal information about you or your account, including its contents, without your prior consent unless Fuzion deems it necessary, in its sole discretion, to:
15.1.1. comply with legal process or other legal requirements, including but not limited to responding to subpoenas or other requests for information from law enforcement officials;
15.1.2. protect and defend the rights or property of Fuzion or its officers, agents, affiliates, and licensees;
15.1.3. enforce this Agreement; or
15.1.4. protect the interests of other Fuzion customers.
15.2. FUZION RESERVES THE RIGHT (SUBJECT TO APPLICABLE LOCAL LAW), IN ITS SOLE DISCRETION, TO MONITOR YOUR ACCOUNT, INCLUDING BUT NOT LIMITED TO THE USE OF A USER'S MAIN ACCOUNT AND ANY SUB-ACCOUNTS, FOR THE PURPOSE OF INVESTIGATING VIOLATIONS OF THIS AGREEMENT OR TO ASSIST WITH CRIMINAL OR CIVIL INVESTIGATIONS.
15.3. Your IP address is transmitted and recorded with each message you send using the Fuzion Services. Fuzion may provide certain information in aggregate form collected from and relating to you to third persons such as advertisers. For a more detailed description of the types and uses of personal information collected from you, please read the Fuzion Privacy Policy.
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
Failure of Fuzion at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of Fuzion.
18.1. Fuzion may provide notice to you via e-mail sent to the e-mail address provided by you upon registration or as subsequently provided by you to Fuzion. Such notice is deemed effective whether you receive it or not.
18.2. You may provide notice to Fuzion in one of the following ways: by personal delivery; by addressing the notice as indicated below and depositing the same by registered or certified mail, postage prepaid, in the United States mail,
Fuzion Health Group
5887 Glenridge Dr., Suite 200
Atlanta, GA 30328;
by Federal Express; by facsimile transmission; or by e-mail and registered or certified mail.
18.3. Such notice, statement or other document so delivered to Fuzion, except as this Agreement expressly provides otherwise, shall be conclusively deemed to have been given when first personally delivered, on the date of delivery or on the first date of receipt. Notice by e-mail to Fuzion shall be deemed ineffective, null and void unless a copy of such notice is also sent by registered or certified mail, and postmarked not more than five days subsequent to the giving of e-mail notice. Any such e-mail notice to Fuzion shall be deemed effective as of the date on which Fuzion receives the certified or registered mail notice
19.1. In the event of "force majeure" (as defined below), Fuzion may terminate this Agreement without liability to you. For purposes of the Agreement, "force majeure" shall mean circumstances or occurrences beyond Fuzion's reasonable control, whether or not foreseeable at the time of entering into the Agreement, in consequence of which Fuzion cannot reasonably be required to perform its obligations hereunder or otherwise perform its obligations under the Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics, governmental regulations and/or similar acts, embargoes, termination or temporary unavailability of any computer hardware or software, server, or network on which the Fuzion Services are located or maintained or through which the Fuzion Services are provided, and nonavailability of any permits, licenses and/or authorizations required by governmental authority.
19.2. Fuzion reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Fuzion Services (or any part thereof) with or without notice, including the right to cease all business operations in the United States and Canada. You agree that Fuzion shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Fuzion Services.
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without Fuzion's prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. Fuzion may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
This agreement is binding upon the parties and their respective successors and assigns.This Agreement shall be construed in accordance with the laws of the State of Georgia governing contracts executed and performed therein and the laws of the United States of America, and shall be binding upon and inure to the benefit of the Parties' respective heirs, personal representatives, executors, administrators, successors and assigns. The Parties agree that the Fulton County of the State of Georgia shall be the proper place of jurisdiction for the determination of any disputes arising from this Agreement, and the Parties irrevocably consent to jurisdiction of the local, state and federal courts located in the Fulton County, Georgia. Should any legal fees, costs, or other expenses be incurred by Fuzion in attempting to enforce this choice of venue, Fuzion shall be entitled to recover such legal fees, costs, or other expenses without regard to whether Fuzion prevails in the underlying case.
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of Fuzion or you has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and Fuzion and you hereby acknowledge and agree that neither Fuzion nor you have executed this Agreement in reliance upon any such representation or promise.
23.1. This Agreement may be materially altered by Fuzion by posting the new version of the Agreement at www.fuzionhg.com and if posted in this manner, shall be effective immediately upon posting such notice. In the event that Fuzion does materially change the terms of this Agreement, you accept and shall be bound by such changed terms unless you opt to terminate the Agreement within thirty days of receipt of notice of such change.
23.2. You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of Fuzion. No additional or conflicting term in any other document used by you will have any legal effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.