Terms Of Use

Your use of Verity Media Group’s (“VMG”) “Fusion45.com” web site and content and software (as defined below) contained hereon (collectively referred to as the “Site” unless specifically stated otherwise) is conditioned on your acceptance without modification of the terms, conditions, and notices contained in this Terms of Use Agreement (the “Terms of Use Agreement”) and Verity Media Group’s Privacy Policy located at http://fusion45.com/privacy-policy/ (the “Privacy Policy”) both of which shall collectively be referred to as the “Terms of Use” unless specifically stated otherwise. By using the Site you agree to the Terms of Use and to abide by all rules, terms, conditions, restrictions and notices therein.

The Site is owned and operated by VMG. VMG reserves the right to modify the Terms of Use at any time without notice. Modifications will be effective immediately as of the date that modification is posted on the Site. You are responsible for regularly reviewing the Terms of Use. Your continued use of the Site indicates your knowledge and acceptance of the Terms of Use and any subsequent modifications thereto.

In addition and where specifically stated, additional terms of use or guidelines for use may govern the use of specific areas of the Site or certain services provided on the Site. Your use of these specific areas of the Site and certain services are subject to any such additional terms of use or guidelines, which are hereby incorporated by reference.

I. GENERAL PROVISIONS

A. PROPRIETARY RIGHTS AND LICENSE AGREEMENT
All Content and Software that is made available to view or download in connection with the Site is owned by and is the copyrighted work of VMG or its licensors. “Content” in these Terms of Use shall mean all Software, object code, source code, schematics, data, text, sound, graphics, video, photographs, images, documents, papers, instructions, information and other material, available for download through or incorporated into the Site. “Software” in this Agreement shall mean all object, source code or other software available on or through the Site whether in written form as part of a document or as a file capable of download together with all documentation, explanatory notes and other materials associated therewith.

Your use of the Site or any of the services available through the Site constitutes your acknowledgement that the Content and the Software contain proprietary and confidential information and that such proprietary and confidential information is protected by all applicable local, state, federal and international intellectual property and other laws. In addition, your permitted use of the Content or Software constitutes your acknowledgement that the Content or Software of VMG or that of other third parties available through the Site contains protected proprietary information, copyrights, trademarks, trade names, service marks, patents, or other intellectual property rights owned by the respective owner of such Content or Software. You hereby agree not to sell, assign, license, sublicense, distribute, create derivative works of, loan, copy, modify, reverse engineer, reverse assemble, attempt to discover source code, or otherwise exploit or transfer any right in the Content, the Software, the Site or any portions thereof without the express prior written permission of VMG or other applicable third parties.

You may not download, install or use any Content or Software that is accompanied by or that includes a license agreement unless you first agree to the terms of such license agreement.

For any Content or Software available for download that is not accompanied by a license agreement, VMG and/or other third parties, as applicable, hereby grant to you subject to the Terms of Use, free of charge, a nonexclusive, non-sublicensable, non-transferable, limited license, during the term of this Terms of Use Agreement, to install and/or use the Content and Software in machine-readable form solely for the intended purpose. You may copy the Content and Software only for backup purposes, provided that you reproduce all copyright and other proprietary notices that are on the original copies of the Content or Software. VMG and/or other third parties, as applicable, may assign any and all rights under this license at any time, without your permission. Notwithstanding any of the foregoing, you hereby acknowledge that VMG and/or other third parties, as applicable, shall retain all right, title and interest in and to the Content, Software, and other development tools available through the Site. You hereby agree not to remove any copyright, trademark or other proprietary notices of any party from the Content, the Software, the Site or any materials thereon.

Any modification, reproduction or redistribution of the Software is expressly prohibited by law. You acknowledge that the Software, and any accompanying documentation or technical information, is subject to applicable export control laws and regulations of the United States or the laws of the country in which you reside and that you will act in compliance with any such export control laws and regulations.

B. UNLAWFUL OR PROHIBITED USE

You may not use the Site for any purpose that is unlawful or prohibited by the Terms of Use. You agree not to use the Site to (a) promote any unlawful activity or purpose, including without limitation, any activity that could give rise to criminal or civil liability; (b) carry out any unauthorized alteration of any data or information on or supplied by another user of the Site; (c) conduct any activity that infringes on the copyright, patent, trademark, service mark or any other rights of any person or entity; (d) harm minors in any manner; (e) upload, post, e-mail or transmit any Content that is unlawful, offensive or obscene, vulgar, harassing, threatening, libelous, defamatory, objectionable racially or otherwise, or invasive of the privacy of another; (f) upload, post, e-mail or transmit any junk mail, “spam,” or any other unauthorized communication, advertisement, promotion or other solicitation; (g) upload, post, e-mail or transmit any materials or files that contain any software “viruses,” “bugs,” “worms,” or any other computer programs or codes designed to alter, interrupt, limit or destroy access to or the functionality of any computer, hardware, software, server, network or other equipment or devices; (h) impersonate or misrepresent any person or entity or the origin of any Content or Software; (i) subscribe to any service on this site that requires you to provide personal information if you are under age 13; or (j) collect, store, transmit, exchange or otherwise distribute the personal information of any users of this Site or any other web site.

You shall not use the Site in any manner that could damage, disable, overburden, or impair any VMG service(s) or interfere with any other party’s use and enjoyment of any VMG service(s). You may not attempt to gain unauthorized access to any VMG service(s) or accounts not registered to you, or computer systems or networks connected to any VMG service(s) through hacking, password mining or any other means. If you are under age 13, you may not attempt to gain access to certain VMG services by providing wrong birth date information. VMG reserves the right, in its sole discretion, to terminate your access to the Site and the related services or any portion thereof at any time, with or without cause and without notice. Some content, materials, services and links on the Site may not be appropriate or available for use in all jurisdictions, especially some jurisdictions outside of the United States. Accessing any such content, materials, services or links from certain jurisdictions may be illegal and prohibited. Accessing any of the foregoing from any such jurisdiction is done so at your own initiative and VMG is not responsible for your or its compliance with any other local applicable laws. You hereby agree that you shall not access any of the foregoing where prohibited by any law.

C. THIRD PARTY SITES

The Site may contain links to third party web sites. The third party Content and linked sites are not under the control of VMG and VMG is not responsible for the content of any linked site. VMG is not responsible for web casting or any other form of transmission received from any linked site, nor is VMG responsible if the linked site is not functioning properly. VMG is providing these links to you merely as a convenience, and the inclusion of any link does not imply endorsement by VMG of any third party site or any association with its operators. You are responsible for viewing and abiding by the privacy statements and terms of use posted at any third party linked site.

Any dealings with third parties, such as advertisers, included within the Site or participation in promotions involving the delivery of and payment for goods and services, or any other terms, conditions, warranties, or representations associated with such third parties, are solely between you and that third party. VMG is neither responsible nor liable for any part of such dealings or promotions.

II. BILLING/CHARGES

A. PURCHASES/PAYMENTS

The price of any product or service purchased through the Site will be the price specified at the time of your purchase. Prices for all products and services exclude all applicable taxes and telecommunication charges, unless otherwise indicated. To the extent permissible by law, you agree to be responsible for any such applicable taxes and telecommunication charges.

In certain cases, payment for products or services through the Site may have direct billing to your telecommunications carrier (“Carrier”) available for such products or services (“Direct Billing”). In the event that you purchase a product or service through the Site that is subject to Direct Billing, the charge for that product or service will appear on your monthly billing statement from your Carrier. Although VMG will work in good faith with you to resolve any billing disputes that you may have for products or services purchased through the Site, VMG shall not be liable for or held responsible for billing disputes between you and your Carrier that are the result of Direct Billing.

B. BILLING INFORMATION

Your purchase of Software or other Content through the Site constitutes your acknowledgement that you are of legal age to form a binding contract, and if not of legal age that you have placed such order with the involvement of a parent or legal guardian, and that you are not a person barred from using or receiving the services available on the Site by any local, state, federal or international law. You must provide current, complete, and accurate information to your Carrier in connection with your billing account in order to receive products or services ordered through the Site. You also agree to maintain and promptly update your billing account information with your Carrier to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or VMG or your Carrier has grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, VMG has the right to suspend or terminate any further purchases by you through the Site and refuse any and all current or future use of the Site by you, or any portion thereof for any reason at any time, and your Carrier has the right to suspend or terminate further billing to your billing account.

VMG has the right at any time to change any fees associated with the Site, the Content or the Software. In the event of any fee changes by VMG, VMG will provide you with commercially reasonable notice of such change. You will have ten business days to accept any new fees. In the event that you fail to accept the new fees by written notice to VMG, your subscription, plan or account, as applicable, may be immediately terminated.
VMG reserves the right to collect applicable taxes and impose premium surcharges for certain features on the Site.

C. REFUNDS

VMG shall notify your Carrier in the event downloaded Software from the Site is either defective or not received due to an error by VMG (“VMG Error”). VMG assumes no liability for purchaser error, trial versions, Software purchased for the wrong telephone, device or platform, promotion codes or discounts not provided at the time of purchase or any purchased item 30 days after the purchase date for any reason (“Purchaser Errors”). Refunds for VMG Errors will be handled pursuant to the refund policies and procedures of your Carrier. VMG shall not be liable for any errors on billing statements issued to you by your Carrier.

You accept full responsibility for confirming that the phone or other device manufacturer, phone or other device model, and carrier are supported and that the phone or other device is compatible to the products or services purchased, downloaded or otherwise obtained by you through the Site. Although VMG will make commercially reasonable efforts to help you obtain the proper Software for your telephone, device or platform, VMG shall not be liable or responsible for any Purchaser Errors. If you have other questions in connection with any product or service available through the Site, please contact VMG Support by visiting http://fusion45.com/support/. In no event shall VMG be liable for any defects or other problems associated with downloads or purchases through the Site after a period of thirty (30) calendar days has expired from the date of such download or purchase, as applicable.

III. SUBSCRIPTION POLICY

Use of a particular product or service on the Site may require opening a subscription account. Subscriptions may be available on a one time or monthly basis. All subscriptions are subject to Direct Billing. If you purchase a monthly subscription, your billing account with your Carrier will be charged at the time of purchase for your first month of use. Your billing account with your Carrier will automatically be charged monthly pursuant to the regular billing procedures of your Carrier for the use of the subscription, until you cancel your subscription.

You may cancel your subscription at any time by contacting your Carrier. If your subscription requires a minimum commitment period, you will be responsible for all charges for the entire minimum commitment period. If you cancel your subscription, you will not be refunded any remaining portion of your subscription fees already billed to your billing account with your Carrier, including any minimum commitments.

IV. LIMITATION OF LIABILITY AND WARRANTY

This disclaimer of VMG’S liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record of the Site, whether for breach of contract, tortuous behavior, negligence, or under any other cause of action.
VMG shall not be responsible for unauthorized access to or alteration of transmissions or data, any material or data sent or received or not sent or received, or any transactions entered into through the Site. You acknowledge that VMG is not responsible or liable for any threatening, defamatory, obscene, offensive or illegal content or conduct of any other users or third parties, or any infringement of another’s rights, including intellectual property rights. You further acknowledge and accept full responsibility for any risk of injury from the foregoing. VMG shall not be liable for any termination, cessation, interruption or cancellation of your password, account, access to the Site, the Content or the Software, temporary or permanent. VMG hereby reserves the right to terminate your access to your password, account, the Site or any Content or Software thereon or any portions thereof and bar any further access to the same by you for any reason and without prior notice to you.

VMG is neither responsible nor liable for any viruses or other contamination of your computer system or other device used to access the Site as a result of your use of the Site; or for any delays, inaccuracies, errors, or omissions arising out of your use of the Site; or with respect to the Content, Software or other material contained on the Site, including without limitation, any material posted by VMG or any third party on the Site.
VMG does not recommend use of its service during certain activities, such as automobile driving, where there exists a significant risk of accident. You agree not to use VMG’S service or games during such activities and acknowledge that any such use constitutes a violation of these Terms of Use. VMG will not be responsible for any direct, incidental, consequential, special or punitive damages resulting from such use.

Neither VMG nor any of its affiliates shall have any liability to you for usage charges related to any device that you use to access the Site or to use VMG’S services, including, without limitation, usage charges for mobile telephones, Palm OS devices, Windows CE devices, Android, Apple iPhone, car navigation systems, pagers, Smartphones and other devices, whether wireless, wireline, requiring cradle synchronization or otherwise.

YOU AGREE THAT ALL INFORMATION, SOFTWARE, CONTENT, PRODUCTS, SERVICES AND RELATED MATERIALS CONTAINED WITHIN THE SITE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. VMG AND ITS RESPECTIVE LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, CONTENT, PRODUCTS, SERVICES AND RELATED MATERIALS, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE AND NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, VMG MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT ACCESS TO OR OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE. IN NO EVENT WILL VMG BE LIABLE FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY CONTENT, SOFTWARE OR OTHER INFORMATION ON THE SITE, OR FOR ERRORS OR MISTAKES MADE BY HUMANS OR MACHINES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, VMG MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SITE UNDER ANY CIRCUMSTANCES. VMG DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR THE CONTENT, SOFTWARE OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY, OR THAT THE SITE, INCLUDING THE CONTENT, SOFTWARE AND COMMUNITY SERVICES OR THE SERVER(S) ON WHICH THE SITE IS OPERATED, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

ANY REFERENCE TO A PERSON, ENTITY, PRODUCT, OR SERVICE ON THIS SITE DOES NOT CONSTITUTE AN ENDORSEMENT OR RECOMMENDATION BY VMG OR ANY OF ITS EMPLOYEES. VMG IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY THIRD PARTY CONTENT ON THE SITE OR THIRD PARTY WEB PAGE ACCESSED FROM THIS SITE, NOR DOES VMG WARRANT THE ACCURACY OF ANY INFORMATION CONTAINED IN A THIRD PARTY SITE OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.

NEITHER VMG NOR ANY OF ITS AGENTS, AFFILIATES OR CONTENT PROVIDERS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SITE OR INABILITY TO GAIN ACCESS TO OR USE THE SITE, THE CONTENT OR THE SOFTWARE OR OUT OF ANY BREACH OF ANY WARRANTY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT AND SOFTWARE ON THE SITE.
NO COMMUNICATION OF ANY KIND BETWEEN YOU AND VMG OR A REPRESENTATIVE OF VMG SHALL CONSTITUTE A WAIVER OF ANY LIMITATIONS OF LIABILITY HEREUNDER OR CREATE ANY ADDITIONAL WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF USE.
VMG RESERVES THE RIGHT TO REMOVE ANY MATERIAL POSTED ON THE MESSAGE BOARDS OR OTHER AREAS OF THIS SITE THAT IT DETERMINES IN ITS SOLE DISCRETION IS VIOLATIVE OF ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE SITE.

V. NOTICES OF INFRINGEMENT OF INTELLECTUAL PROPERTY

If you know or suspect that any Content or other materials or portions of the Site constitute copyright infringement or other violations of local, state, federal or international intellectual property laws, contact VMG at http://fusion45.com/support/.

VI. INDEMNITY

You agree to indemnify and hold VMG, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim, demand, lawsuits, or judgments, including reasonable attorneys’ fees and court costs, made by any third party due to or arising from any content or materials developed by you, content you submit, post, transmit or make available through the Site; your use of the Site; your connection to the Site; any disputes or issues between you and your Carrier; your violation of the Terms of Use Agreement; your violation of any rights of another, including intellectual property rights (infringement of a third party’s patent, trademark, or copyright, or misappropriation of a trade secret); or losses resulting from someone else using your account or password (including any unlawful or prohibited use of the Site).

VII. SUPPORT

Subject to the other provisions of the Terms of Use, VMG will attempt to help you with any queries or problems that you may have with the Site or any of your purchases through the Site. To reach our customer support team, please use our contact form. Providing our representatives with all the information they need to solve your problem as quickly will expedite your request for assistance.

VIII. PRIVACY

Any personal information you provide to VMG is used solely to provide services you have requested, or to enhance your experience while visiting the web site. To learn more about our Privacy Policy, please visit http://fusion45.com/privacy-policy/.

IX. GOVERNMENT USE

If you are or are acting on behalf of an agency or instrumentality of the United States Government, the Software is “commercial computer software” developed exclusively at private expense. Pursuant to Federal Acquisition Regulation 12.212 or Defense Federal Acquisition Regulations 227 7202 and their successors, as applicable, use, reproduction, and disclosure of the Software is governed by these Terms of Use.

X. TRADEMARK NOTICE

“fusion45.com” and their respective logos are trademarks or registered trademarks of Verity Media Group. All other names of companies and products mentioned may be trademarks of their respective owners and are used with permission. Any such trademarks may be used publicly only with permission from VMG or their respective owners. Fair use of any such trademarks requires proper acknowledgment. All rights not expressly granted herein are reserved.

XI. COPYRIGHT NOTICE

All Content, Software and other materials published on the Site are protected by copyright, and owned or controlled by or licensed to VMG, or the party listed as the provider of the Content, Software or other materials. UNAUTHORIZED COPYING, REPRODUCTION, MODIFYING, REPUBLISHING, UPLOADING, DOWNLOADING, POSTING, TRANSMITTING, MAKING DERIVATIVE WORKS OF OR DUPLICATING ANY SUCH MATERIAL IS PROHIBITED. You may download any downloadable materials displayed on the Site for the specified uses only, provided that you maintain all copyright, trademark, and other notices contained in such material, and you agree to abide by all additional copyright notices, information, or restrictions contained in any material accessed through the Site. Except as expressly provided in a separate license agreement, VMG and its licensors of the Site materials do not grant any express or implied rights to you under any patents, copyrights, trademarks, or trade secret information. All content on the fusion45.com web site is Copyright ( c ) Verity Media Group, unless specified otherwise. ALL RIGHTS RESERVED.

XII. GOVERNING LAW; MISCELLANEOUS

These Terms of Use are governed in all respects by the laws of the State of California. Any action brought in connection with the Site or Site content shall be brought in, and adjudicated solely in state or federal courts of the State of California located in the County of San Francisco. Both parties consent to extra-territorial service of process and submit to the jurisdiction of said courts.

Communications made through the Site’s e-mail and messaging system shall in no way be deemed to constitute legal notice to VMG or any of its officers, employees, agents or representatives, with respect to any existing or potential claim or cause of action against VMG or any of its agencies, officers, employees, agents or representatives, where notice to VMG is required by contract, or any United States or foreign federal, state or local laws, rules or regulations.

If any provision of these Terms of Use is held to be invalid or unenforceable, such provision shall be stricken and the remaining provisions shall be enforced. Verity Media Group’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches.

These Terms of Use set forth the entire understanding and agreement of the parties as to the subject matter herein and supersede all prior proposals, discussions or agreements with respect thereto. Except as otherwise expressly provided in these Terms of Use, there shall be no third party beneficiaries to these Terms of Use.

XIII. STATUTE OF LIMITATIONS

Any claim or cause of action arising out of or related to use of the Site, the Content, the Software or these Terms of Use must be filed within one (1) year after such claim or cause of action arose regardless of any status or law to the contrary. In the event any such claim or cause of action is not filed within such one (1) year period, such claim or cause of action shall be forever barred.

XIV. TERMINATION

VMG may terminate your access to the Site, the Software, the Content, your password and/or account or any portions thereof immediately and without prior notice and without cause, including for, but not limited to, any of the following occurrences, (a) breach or violation of the Terms of Use Agreement, any other terms of use for specified portions of the site or services, or any other terms, policies or conditions of VMG; (b) a period of inactivity exceeding one (1) year; (c) a request by law enforcement or any other governmental agency; (d) discontinuance or modification of the Site, the Software or the Content; (e) a request by you to terminate your access; (f) technical problems; (g) security issues; (h) as required by any local, state or federal law.

Copyright and Intellectual Property Agent

VMG may disable and/or terminate the accounts of users who may be infringing the intellectual property rights of others at any time, in Verity Media Group’s sole discretion and without notice to the user.

If you believe that your work or the work of another has been copied in a way that constitutes copyright infringement, or the violation of any other intellectual property rights of yours, please provide Verity Media Group’s Copyright Agent the following information:
1. a description of the infringed work that you claim has been infringed;
2. a description of where the allegedly infringed work is located on the site;
3. your address, telephone number, and e-mail address;
4. a declaration by you that you have a good faith belief that the allegedly infringing use of the work is not authorized by the copyright or intellectual property owner, its agent, or the law;
5. a declaration by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf;
6. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

Verity Media Group’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached via our contact page.

In order to obtain permissions to use Verity Media Group’s trademarks, service marks, logos, trade names, trade dress, slogans, copyrighted materials, or other brand features or materials, please contact VMG by email.