These terms and conditions govern your use of the www.fusemind.com (the "Site"). Your use of this Site constitutes your agreement and acceptance without modification of the following terms and conditions. FuseMind reserves the right, in its sole discretion, to modify, alter or otherwise update these terms and conditions at any time. Such modifications shall be effective immediately upon posting of the modified terms and conditions. You should review these terms and conditions regularly as they may change at any time at our sole discretion. By using this Site after we have posted notice of such modifications, alterations or updates, you agree to be bound by the revised terms. If you do not agree to any term or condition, you should not access or otherwise use this Site. In addition, as a condition of your use of this Site, you represent and warrant to FuseMind that you will not use this Site for any purpose that is unlawful, immoral or prohibited by these terms and conditions
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DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY THIS SITE IS PROVIDED BY the Site ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE SITE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, the Site DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SITE DOES NOT WARRANT THAT THIS SITE, ITS SERVERS, OR E-MAIL SENT FROM the Site ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SITE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
By visiting the Site, you agree that the laws of the state of Texas, U.S.A., without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and the Site or its associates.
Any dispute relating in any way to your visit to the Site or to products you purchase through the Site shall be submitted to confidential arbitration in TEXAS, U.S.A., except that, to the extent you have in any manner violated or threatened to violate the Sites intellectual property rights, the Site may seek injunctive or other appropriate relief in any state or federal court in the state of TEXAS, U.S.A., and you consent to exclusive jurisdiction and venue in such courts. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrators’ award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
We reserve the right to make changes to our site, policies, and these Conditions of Use at any time. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
These terms and conditions govern your use of services provided by FuseMind, Inc. (“FuseMind,” also doing business as “LeadForce PRO”, together with FuseMind, the “Service Provider”). FuseMind and LeadForce PRO are engaged in the business of developing front and back-end data, web-based and mobile solutions for companies and agencies (the “Services”). Your use of Service Provider Services constitutes your agreement and acceptance without modification of the following terms and conditions (the “Terms”). FuseMind reserves the right, in its sole discretion, to modify, alter or otherwise update these Terms at any time. Such modifications shall be effective immediately upon posting of the modified Terms. You should review these terms and conditions regularly as they may change at any time at our sole discretion. By using our Services after we have posted modifications, alterations or updates, you agree to be bound by the revised Terms. If you do not agree to any term or condition, you should not access or otherwise use FuseMind’s Services. In addition, as a condition of your use of the Services, you represent and warrant to FuseMind that you will not use these Services for any purpose that is unlawful, immoral or prohibited by these Terms.
Service Provider shall provide to Client such services and deliver to Client such deliverables as are described in any one or more mutually executed statements of work (each an “SOW”). There shall be no change to a SOW, other than pursuant to a written agreement referencing such SOW and signed by each of the Parties. Client (i) acknowledges that in some instances the provision of Services by Service Provider may be contingent in whole or in part upon Client’s delivery of information, data, and/or other deliverables specified in the applicable SOW; and (ii) agrees that to the extent that Client does not make such deliveries as and when specified in, and otherwise in compliance with, such SOW, Service Provider shall, at its option, be excused, without liability to Client, from providing the affected Services.
In the event a client enters into a Master Professional Services Agreement or Service Level Agreement with Service Provider (each, an “Agreement”), where conflict applies, the terms of such Agreement shall supersede the Terms and Conditions provided herein.
a) Except as may be stated otherwise in an applicable Agreement or SOW, Client agrees to pay Service Provider’s invoices NET 15 days from the invoice date. Amounts specified in an invoice and not paid by the due date shall bear interest from the due date until paid at the lesser rate of (i) 1.5% per month or (ii) the maximum non-usurious rate allowed by applicable law.
b) If Client fails to pay any invoice in accordance with an applicable Agreement or SOW and/or the terms of such invoice, or to make any other payment under such an Agreement (including under any SOW) as and when due, Service Provider reserves the right, without waiving any other right by reason of Client’s breach or such action constituting an election of remedies, to suspend performance of any and all Services under such an Agreement or SOW until such outstanding amount(s), including interest accrued thereon, have been received by Service Provider.
Client will provide Service Provider compliance approval of all Lead Creatives in writing. Upon request, Service Provider shall provide the Client with existing lead piece creatives.
a) The Parties acknowledge and agree that the Services may include use, manipulation, and/or storage of Client data (“Client Data”) by or at the direction of Service Provider. The Parties agree that: (i) Service Provider may store Client Data with one or more third party providers, such as a colocation facility, and/or on Service Provider’s in-house servers, or otherwise, as determined by Service Provider in its sole discretion; (ii) Service Provider will cause Client Data to be stored, and the confidentiality thereof maintained, in accordance with then-current applicable industry standards; and (iii) in any event, Service Provider shall use commercially reasonable processes and procedures with respect to maintenance and confidentiality of Client Data.
b) Client agrees to maintain at its sole cost and expense at least one back-up copy of all Client Data in the format and media designated by Service Provider in accordance with paragraph (a) of this section below and to provide copies of all or any portion thereof as Service Provider may request from time to time in order to provide any of the Services.
c) With respect to any Services requiring Client to supply Client Data to Service Provider, Client shall deliver all such Client Data to Service Provider at Client’s sole expense, in such format(s) and upon such computer media as from time to time designated by Service Provider.
d) Upon the termination of Services, Client shall provide written instructions to Service Provider as to the manner in which Client desires Service Provider to return Client Data to Client. Service Provider shall deliver Client Data in accordance with such instructions, at Client’s expense, within fifteen (15) days of its receipt of such instructions. Service Provider shall have no obligation to deliver Client Data in any format other than that in which it is then being stored by Service Provider. If Client does not provide such written instructions within said thirty (30) day period, then Service Provider may, without liability to Client, destroy any and all Client Data, it being agreed, however, that for so long as Service Provider remains in possession of Client Data, even after the expiration or earlier termination of Services, Service Provider shall maintain such Client Data in accordance with paragraph (a) of this section hereof.
e) Notwithstanding any provision herein to the contrary, in the event of loss, damage, or destruction to or of any Client Data while in Service Provider’s possession or control or that of a third-party processor or storage facility engaged by Service Provider, Service Provider’s liability to Client with respect to such loss, damage, or destruction shall be limited to the reasonable cost of regeneration of such Client Data utilizing Client’s copy of such Client Data maintained by Client pursuant to paragraph (b) of this section hereof.
f) Client hereby represents, warrants, and covenants that: (i) all Client Data is owned by and/or duly licensed to Client and that Client has all legal right and authority to deliver Client Data to Service Provider pursuant to the Services and to authorize and direct Service Provider to perform the Services, including with respect to all Client Data; (ii) no Client Data includes or is comprised of any information that is illegal for Client and/or Service Provider to own and/or possess, that is defamatory, that constitutes an infringement or violation of the privacy, intellectual property, or other right of any person or entity, that is obscene, and/or that is governed in whole or in part by privacy laws, rules, or regulations of any country other than the United States; and (iii) Client’s business practices, customer contact applications, data capture/usage, and marketing practices with respect to which Services are provided all comply with (A) applicable federal and state laws, including without limitation FCRA (defined below), (B) published policy guidelines of the Direct Marketing Association, and (C) all third party agreements by which Client is bound or to which the Client Data is subject.
g) Service Provider reserves the right (without being deemed to be in breach of these Terms or any applicable Agreement) to not use Client Data that Service Provider reasonably believes not to conform to or with any one or more of the representations contained in this section and to not provide Services that would utilize any such non-conforming Client Data. Under such circumstances there shall be no reduction in payments due from Client to Service Provider.
h) Client hereby grants to Service Provider a non-exclusive, terminable upon expiration or termination of the Services, paid up license to use, possess, and manipulate Client Data as reasonably necessary or appropriate for Service Provider to provide the Services. Service Provider acknowledges and agrees that, unless and except as expressly provided in an Agreement or SOW, the Services do not result in a transfer of ownership by Client to Service Provider of any Client Data.
Except as expressly stated otherwise in an applicable Agreement or SOW, Client acknowledges and agrees that (a) the Services do not constitute a “work for hire”, (b) do not include a transfer of ownership and/or license by Service Provider to Client of any software, hardware, or intellectual property, and (c) all software, hardware, and intellectual property utilized by Service Provider in connection with the provision of any Service is and shall remain the property of Service Provider and/or its licensors, as applicable, and this Agreement does not grant Client any right, title or interest therein.
Service Provider represents and warrants to the Client that: (a) Service Provider is either the owner of the right to use (or authorized to use and, when necessary, is authorized to grant to the Client the right to use) all software, hardware, methods, methodologies, and third party materials used in connection with the Services that are not otherwise owned or licensed by the Client; (b) the Services do not knowingly contain any matter which violates applicable law; and (c) the receipt or use of any Services by the Client does not infringe, or constitute an infringement, a misappropriation or an unauthorized use of any existing patent, copyright, trademark, trade secret, license or other property or proprietary right of any third party and there are no claims, demands or proceedings that have been instituted, or are pending or threatened, by any person against Service Provider or, to Service Provider’s knowledge, any customer of Service Provider, alleging any matter contrary to the foregoing.
Performance. The Services will be performed in a reasonably professional and workmanlike manner by Service Provider employees who possess the requisite skills and knowledge necessary to perform the Services. Further, the Services will function in conformity with any applicable requirements or specifications set forth in an applicable Agreement or SOW or other documentation provided to the Client.
No Disabling Procedures. Service Provider shall not knowingly introduce or allow the introduction into the LeadForce PRO system of any “viruses”, “worms”, “time bombs”, “time locks”, “drop dead devices”, “traps” or “trap door” devices designed to: (i) disrupt, disable, harm, or otherwise impede the operation of the LeadForce PRO system; (ii) permit Service Provider or an unauthorized party to remotely access the Client’s computers or remotely cause disablement or impairment; or (iii) cause a corruption or damage to the Client’s data, storage media, programs, equipment or communications, or otherwise interfere with the operations of the Client.
It is understood and agreed that Service Provider and the Client are independent corporate entities and that neither entity is an employer, employee, partner or representative of the other and that neither Service Provider nor the Client shall hold itself out to the public as an agent, partner, or representative of the other.
a) Neither Party shall disclose any information or knowledge concerning the other Party’s operations or procedures which are marked or designated as confidential or which would appear to a reasonably prudent person to be non-public, confidential or proprietary information (“Confidential Information”).
b) Confidential Information includes but is not limited to all books, records, files, manuals and procedures, relevant technical, financial, business customer or consumer information, the security of Service Provider’s computing systems, products, operations and the Terms. Confidential Information shall not include information (i) which at the time disclosed to or obtained by the Receiving Party is in the public domain; (ii) which becomes part of the public domain through no fault of the receiving party; (iii) which was communicated to the receiving party by a third party who is not, to the receiving party’s knowledge, subject to any confidentiality obligations with respect thereto; (iv) which was independently developed by the Receiving Party without reference to the disclosing party’s Confidential Information; or (v) which is required to be disclosed by law or legal process, including, without limitations, pursuant to the terms of a subpoena or other similar process or in connection with a litigation, arbitration or other proceeding, provided however, that the Receiving Party shall give prior timely notice in writing of such.
c) Confidential Information received by the Receiving Party shall be held in confidence and surrendered to the disclosing party upon the earlier of termination of the Services or upon prior written request by the Disclosing Party. Upon Disclosing Party’s request, Recipient will promptly return all Confidential Information to the Disclosing Party or destroy such materials and certify the destruction to the Disclosing Party. Receiving Party will not, however, be obligated to erase Confidential Information contained in an archived computer system backup made in accordance with its security and/or disaster recovery procedures, provided that such archived copy will eventually be erased or destroyed in the ordinary course of data processing procedures and will remain fully subject to the obligations of confidentiality stated herein, until the earlier of the destruction of such copy or the expiration of the confidentiality obligations set out in these Terms.
d) The Client and Service Provider shall comply with all applicable laws and regulations regarding confidentiality of insured or customer information. Service Provider shall not furnish any data or information provided to Service Provider by the Client, an insured or potential customer to any third party without the written consent of the Client, except as reasonably necessary to fulfill its obligations pursuant to the Services or as required or permitted by applicable law. The restrictions set forth in this paragraph 11 shall not apply to non-Client identifiable and non-customer-identifiable data for information compiled on an aggregated basis for statistical and reporting purposes.
e) The Client and Service Provider acknowledge that the law and regulations issued pursuant to the federal laws known as the Financial Services Modernization Act (the “Acts”) affect the operations of the Client and Service Provider. The parties agree to use their reasonable best efforts to work with the other to ensure compliance with the applicable requirements of the Acts as they may affect the duties and obligations of each party under these Terms. Such compliance shall include, where applicable, a requirement that subcontractors or agents agree to written contractual provisions as the Client and Service Provider may develop.
f) Service Provider warrants and represents that it maintains a comprehensive written information security program that includes administrative, technical and physical safeguards for the protection of customer information to: (1) protect against anticipated threats or hazards to the security or integrity of customer records and information obtained by financial institutions; (2) protect against unauthorized access to or use of such records or information which could result in substantial harm or inconvenience to any customer; and (3) insure the security and confidentiality of customer records and information. Said security program document is available upon request.
If any action at law or in equity is brought to enforce or interpret the provisions of these Terms, the prevailing party shall be entitled to reasonable attorney’s fees in addition to any other relief that may be available.
The validity of these Terms and of any of its terms or provisions, as well as the rights and duties of the parties to these Terms, shall be governed by and construed in accordance with the laws of the State of Texas.
In case any provision of these Terms shall be deemed invalid, illegal or unenforceable, it shall to the extent practicable be modified so as to make it valid, legal and enforceable and to retain as nearly as practicable the intent of the parties, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Each party shall indemnify, defend and hold harmless the other party and the administrators, directors, officers, trustees, employees or agents of the said other party, from and against any and all loses, claims, damages, actions, penalties, settlements, judgments and expenses (including reasonable attorney’s fees) arising out of or relating to said other party’s performance or non-performance of its duties and obligation under these Terms including, but not limited to, the performance of said obligations by any contractors of said party.
Service Provider shall maintain adequate and reliable computer and other equipment necessary or appropriate to carry out its obligations of the Services under an SOW. Notwithstanding the foregoing or any other provision of the Terms or any applicable Agreement or SOW, Service Provider assumes no responsibility hereunder, and shall not be liable for, any damage, loss of data, business interruption, delay or any other loss whatsoever caused by “Force Majeure Events.” “Force Majeure Events” are events beyond the reasonable control of Service Provider, its agents and its affiliates. In the event of a Force Majeure Event, or any disaster that causes a business interruption, Service Provider shall act in good faith and follow applicable procedures in its disaster recovery and business continuity plan and use all commercially reasonable efforts to minimize service interruptions.
Headings used in these Terms are provided for convenience only and shall not be used to construe meaning or intent.