TERMS AND CONDITIONS
These Terms and Conditions (the “Agreement”) are between us, Fuse Marketing & Media LLC-S (Fuse), and you. Please read this Agreement carefully before using our website or services. If you use or visit our website, you have agreed to this Agreement. So please do not use our website if you disagree with this Agreement or if you do not understand this Agreement. Any other disclaimers on our website are a part of this Agreement. We may modify or change this Agreement without notice to you, and any changes or modifications are effective immediately when published.
THIS AGREEMENT CONTAINS A CLASS ACTION WAIVER PROVISION AND A JURY WAIVER PROVISION.
The Website and Services
Our website includes any information and subpages within. The term “website” does not mean third party links or websites. We provide you with information, the ability to communicate with us, pay us, agree to our terms, and our e-commerce site. None of this information will constitute the rendering of legal, medical, or other professional advice or services.
Using our website does not create any relationship other than as a supplier between us and you, either as independent contractor, employee/employer, joint venture, partnership, or any other agent relationship.
You may need your own account to use certain services on our website. This may require you to be logged in to the account and have a valid payment method on your account. You are responsible for maintaining the confidentiality of your username and password and for restricting access to your account, and you agree to accept responsibility for all activities that occur under your username or password. You must be at least 18 years of age to use or services or make purchases from our website. We reserve the right to refuse service, terminate accounts, terminate your rights to use our services or website, remove or edit content, or cancel orders at our sole discretion.
Your account only permits you to view your recent orders, manage your shipping, billing addresses, as well as edit your password and account details. Without an account, you are not permitted to make purchases or use other services under this Agreement. If we make changes or modifications to this Agreement, your continued use of your account is consent to any such changes or modifications.
Other forms of payment permitted are personal checks, cashiers checks, money orders, or equivalent checks from a federally insured bank, any bill pay services, or automatic clearing house (ACH) payments. Further, if you provide a bad or uncollectable check, you will be charged fifty ($50) dollars. Delivery of products will not occur until we have received and cleared any checks in the full amount owed.
If you send us a message through the contact us form, we will return our communication at our discretion. We may contact you through phone, email, or newsletter. If you wish to unsubscribe from emails or newsletter, please let us know by emailing us. You may unsubscribe at any time, and we may retain your account to be re-activated if you re-subscribe.
WE DO NOT WARRANT THAT OUR SERVICES, COMMUNICATIONS, INFORMATION, CONTENT, MATERIALS, PRODUCTS, OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULL EXTENT PERMISSIBLE BY LAW, WE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF OUR WEBSITE OR PRODUCTS, OR FROM ANY INFORMATION, CONTENT, MATERIALS, OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.
If you have an account that has been verified by a purchase on such account (“verified account”), you may post reviews, questions, comments, and other content (individually a “post” or collectively “posts”), so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights (including publicity rights), or otherwise injurious to third parties or objectionable, and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam” or unsolicited commercial electronic messages. You may not use a false e-mail address, impersonate any person or entity, or otherwise provide misleading information or content. We reserve the right, but are not obligated, to remove or edit such content.
If you submit a post or testimonial, you grant us a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such content throughout the world in any media, such as use of a testimonial. Further, you grant us and any sublicensees the right to use the name that you submit in connection with such content. You represent and warrant that you own or otherwise control all the rights to the content that you post, that the content is accurate, that use of the content you supply does not violate this Agreement and will not cause injury to any person or entity, and that you will indemnify us for all claims resulting from content you supply. We reserve the right, but are not obligated, to monitor and edit or remove any activity or content. We have no responsibility and assumes no liability for any content posted by you or any third party.
Ownership and Use
The following lists are examples of protected material and information, and we just want to make sure you have no questions about who owns what. All technology, programs, software, information, processes, data, developments, designs, artwork, formulae, other copyrightable and/or patentable works and techniques related to or associated with the website, (the “Company Technology”) is retained and owned by us at all times. All material on the website, including, but not limited to, text, data, graphics, logos, button icons, images, sound bites, audio clips, videos, video clips, links, digital downloads, data compilations, and software is owned, controlled by, or licensed to us and is protected by copyright, trademark, and other intellectual property rights. You may not edit, develop, make changes to, transfer, sell, or use any Company Technology or any material on the website, unless we expressly give you permission to do so.
Subject to this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make use of our services and website. This license does not include any resale or unauthorized use of any services, website, products, descriptions, or prices. Further, you are not permitted to gain any derivative use of our services or website; download, copy, or other use of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. All other rights not expressly granted to you in this Agreement are reserved by us. None of our service, products, trademarks, copyrights, proprietary information, or website may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You must not use our services, website, or products for any illegal or obscene activities.
You may provide links to our website, so long as you do not change, remove, or obscure the copyright notice or other notices on our website. Your website or other source of links must not engage in illegal or obscene activities. Finally, you may link provided you understand that you must stop linking to our website immediately if we request.
Liability & Indemnification
We recognize that we are not perfect. The content or product descriptions on the website may have inaccuracies or typographical errors. Further, we will not warrant that our website will operate without mistakes or delays, or that any third party websites will be free of viruses or other harmful components. Even if we provide a link to a third-party website, we do not endorse the third-party and we are not responsible for the contents of any linked site, or any link contained in a linked site.
OUR WEBSITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF OUR SERVICES OR PRODUCTS OR THE INFORMATION, CONTENT, MATERIALS, OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU. THEREFORE, TO THE FULL EXTENT PERMISSIBLE BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU EXPRESSLY AGREE THAT USE OF OUR WEBSITE, SERVICES, AND PRODUCTS ARE AT YOUR SOLE RISK.
As such, in no event will we, or any third parties we work with, be liable for any incidental, consequential, indirect or other damages. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you. In such states, liability is limited to the greatest extent permitted by law, resulting in the smallest dollar amount permitted for the aggregate liability for both our website and affiliated parties for a claim deriving from or related to our website. This is in place of any and all other remedies otherwise available.
You agree to indemnify, defend and hold us and our agents harmless for all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any use of the website or violation of this Agreement by you or any other person affiliated with you. Further, you agree to indemnify, defend and hold us and our agents harmless for all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from enforcement of this Agreement, including this indemnification clause.
Risk of Loss and Return
All purchases of our products are made pursuant to a shipment contract, which means that the risk of loss and title for such items pass to you upon our delivery to the carrier. We make no guarantees, warranties, or representations as to the timing of any delivery. To the extent that we retain any risk or liability, we are limited to damages of the direct cost of the product, and we will not be subject to any incidental, consequential, indirect or other damages. If your state does not allow the exclusion or limitation of liability for consequential or incidental damages, our liability is limited to the greatest extent permitted by law, resulting in the smallest dollar amount permitted for the aggregate liability for both our website and affiliated parties for a claim deriving from or related to the purchase of our product.
Returns are permitted within one (1) year of purchase if the product is unopened and undamaged. All returns are subject to a ten (10%) percent restocking fee. We have the ultimate discretion of whether to accept title to a returned product.
Dispute Resolution & Waivers
This Agreement is governed by the laws of the United States and the State of Indiana. If there is a dispute between you and us with anything related to this Agreement, including services or payments, then we agree to initially attempt to resolve the issues to the mutual satisfaction of the parties and in good faith through negotiation. If we cannot resolve the dispute through negotiation, then we may then agree to mediation. If we cannot resolve the dispute by either negotiation or we do not agree to mediate the dispute, then we agree to either:
- Submit a claim to the small claims state court located in Jasper County, Indiana, if the total damages in dispute are less than or equal to six-thousand ($6,000.00) dollars; or
- If the total damages in dispute are greater six-thousand ($6,000.00) dollars, then to arbitrate the dispute by agreeing to an arbitrator. If we cannot agree on an arbitrator, we will each appoint a third-party representative, who will agree to an arbitrator for us. The arbitration hearing will take place in Allen County, Indiana. The arbitrator may not change the terms of this Agreement, and their decision shall be final and binding. The cost of the arbitrator will be split equally by the parties, but all other costs will be covered by the individual parties.
In any event, the court or arbitrator will apply Indiana substantive law. The prevailing party will be entitled to recover its attorneys’ fees and costs.
Please read the next part carefully because it contains a class action waiver and a jury waiver.
Class Action Wavier. YOU WAIVE THE RIGHT TO LITIGATE IN COURT OR ARBITRATE ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL.
Jury Wavier. You waive your respective rights to a trial before a jury in connection with any Dispute between you and us. If a Dispute is brought before a court of law or equity, the Dispute shall be resolved by a judge sitting without a jury. If a court determines that this provision is not enforceable for any reason and at any time prior to trial of the Dispute, but not later than thirty (30) days after entry of the order determining this provision is unenforceable, any party shall be entitled to move the court for an order compelling an alternative to litigation, including mediation or arbitration and staying or dismissing such litigation pending the alternative dispute resolution.
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Indiana without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties in good faith efforts. If they are unable to resolve the dispute, Fuse and the Client agree and consent to the exclusive jurisdiction and venue of the federal or state court presiding in Porter County, Indiana, over any litigation that ensures from this Agreement.
Client acknowledges that Fuse will have no adequate remedy at law in the event Client uses the Deliverables in any way not permitted hereunder, and hereby agrees that Fuse shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein. The Client agrees that regardless of any statue or law to the contrary, any claim or cause of action it brings arising out of or related to its use of the services of Fuse pursuant to this Agreement, such claim must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Relationship Between Parties
Fuse is an independent contractor, not an employee of Client or any company affiliated with Client. Fuse shall provide the Services under the general direction of Client, but Fuse shall determine, in Fuse’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement.
This Agreement represents the entire understanding of both Parties, so it supersedes all previous agreements and understandings and discussions. If we make any exceptions to what has been described in this Agreement, we are not waiving our rights to seek remedies. Whenever possible, each provision of this Agreement will be interpreted to be effective and valid under the law, but if any provision of this Agreement is invalid or unenforceable, the rest of this Agreement is still in full force and effect.
As stated above, by using this website, submitting your information, or if prompted to authorize this Agreement electronically by clicking the “I Agree” button or communicating with us via email or the website, you are deemed to have executed this Agreement electronically, effective on the date of your payment, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.).
This Agreement constitutes the entire agreement between Client and Fuse and no promises or representations, express or implied, either written or oral, not set forth herein, shall be binding upon or inure to the benefit of either party. This Agreement shall not be modified by oral agreement, either express or implied, and all modification hereto shall be in writing and signed by both parties, except that Fuse’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail. Notwithstanding Fuse reserves the right to modify or discontinue marketing services, or to modify this Agreement in relation to services, with or without notice to Client. Fuse shall not be liable to the Client or to any third party claiming through the Client in the event that Fuse exercises the right to modify or discontinue marketing services or to modify this Agreement.
This Agreement may not be modified orally, rather any modification of this Agreement must be in writing and signed by both parties, Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
The Client may not assign, delegate or transfer its rights or obligations under this Agreement without the prior written consent of Fuse and any such prohibited assignment, delegation or transfer shall be null and void.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
Fuse shall not be deemed in breach of this Agreement if Fuse is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Fuse or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Fuse’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Fuse shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
The section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
The Client must send any notices or other communications required or permitted under this Agreement shall be sent to Fuse in writing via email at “firstname.lastname@example.org”. Fuse may send any notices to the Client at the most recent email address provided to Fuse or, if the Client has not provided an email address, to any email or postal address that Fuse believes is the Client’s address.
This Agreement will take effect when Client has performed the conditions stated in Payment and signed Agreement, but its effective date will be retroactive to the date Fuse first provided services. Even if this Agreement does not take effect, Client will be obligated to Fuse the reasonable value of any services Fuse may have performed for Client.