Terms of Use

Last Updated: January 1, 2020

These Terms of Use govern the use of the Fusion Services (as defined below), which are made available by Fusion Media Network, LLC and its affiliated companies (collectively, “Fusion,” “we,” “us” or “our”). Also, our Privacy Policy is incorporated by reference into these Terms of Use.

NOTICE OF ARBITRATION AGREEMENT: THESE TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT (SECTION 21) THAT REQUIRES YOU TO (i) RESOLVE ANY DISPUTE WITH US ARISING HEREUNDER THROUGH BINDING ARBITRATION, (ii) WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTE, AND (iii) WAIVE THE RIGHT TO A TRIAL BY JURY OR COURT.

  1. Certain Definitions.

    As used in these Terms of Use:

  • “Content” means any and all information, content and material made available on or through the Fusion Services, including, without limitation, text, photos, graphics, and video content. Fusion offers both original Content produced by or for Fusion and Content licensed from third parties. All Content is deemed part of the Fusion Services.
  • •“Suppliers” means any and all of the following: (i) third parties that provide or license their content to Fusion in connection with the Fusion Services; (ii) third parties that distribute Content under authorization of Fusion (e.g., cable, satellite, and internet television providers); (iii) third parties that advertise on or participate in advertising, marketing campaigns, promotions, offers, etc. with Fusion; and (iv) third parties that provide information technology products (software, hardware, etc.), services or support to Fusion in connection with the Fusion Services.
  • •“Supplier Trademarks” means the names, titles, marks, logos, and other source identifiers of Suppliers, whether registered or unregistered.
  • •“Fusion Services” means any and all Fusion-branded websites and online and mobile applications and services (whether existing now or in the future) where we specifically post or link to these Terms of Use, including, without limitation, the TV website and associated online and mobile applications and services. For the avoidance of doubt, all references to “Fusion Services” in these Terms of Use include Content, as well as any software (whether or not downloadable) and technology components of the Fusion Services.
  • •“Fusion Trademarks” means the names, titles, marks, logos, and other source identifiers of Fusion, including, without limitation, the “FUSION” name and logo.
  • •“User” or “you” means anyone who uses any of the Fusion Services.
  1. Acceptance

    By using any of the Fusion Services, (i) you expressly accept and agree to be bound by these Terms of Use that, together with the other legal notices referenced herein, constitute a legally binding contract between you and Fusion, and (ii) you represent and warrant that you are at least 18 years of age or otherwise have legal capacity to consent to and enter into these Terms of Use. If you do not wish to be contractually bound to these Terms of Use or any of the other legal notices referenced herein, you should not use the Fusion Services.

  2. Applicability.

    These Terms of Use are only applicable to those Fusion-branded websites, applications and services that specifically post or link to these Terms of Use.

    Some Fusion-branded sites, applications and services post or link to different terms and policies, and not these Terms of Use. Accordingly, before using any such sites, applications or services, you should carefully review their posted or linked terms and polices. Also, from time to time Fusion and/or our Suppliers may conduct events, sweepstakes, contests, and giveaways (“Promotions”) on or through the Fusion Services, and participation in Promotions will be governed by the official rules of the Promotions, as prescribed by Fusion and/or our Suppliers, which are separate and distinct from these Terms of Use.

 

  1. Not Intended for Children.

    The Fusion Services are not designed or intended for anyone under the age of 18.

    We may restrict and/or deny your access to the Fusion Services (including terminating any account you may have for the Fusion Services), if we have reason to believe or suspect that you are under the age of 18.

Pursuant to 47 U.S.C. Section 230(d) (as amended), we hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from Common Sense Media (https://www.commonsensemedia.org) and OnGuard Online (http://onguardonline.gov/). Please note that Fusion is not affiliated with, and does not endorse any of the products or services listed on, such sites.

  1. Not Intended for Use Outside the U.S.

    The Fusion Services are hosted and operated from within the United States of America. Fusion and our Suppliers do not represent or warrant that the Fusion Services will be appropriate or available for use in locations outside the U.S. If you access the Fusion Services from a location outside the U.S., you understand and agree that you do so of your own volition and at your own risk and that you are responsible for complying with all applicable local laws.

 

  1. Changes.

    From time to time we may change these Terms of Use. Any material changes to these Terms of Use will be effective thirty (30) days following our notification to you by email or by posting a notice of the changes on the Fusion Services. By continuing to use any of the Fusion Services after such 30-day period, you are deemed to have agreed to the changes. If you do not agree with a change to these Terms of Use, your sole and exclusive remedy will be to discontinue use of the Fusion Services.

  2. Consent to Electronic Communications.

    By using any of the Fusion Services and providing your email address and/or mobile number, you consent to receiving electronic communications from us that are related to your use of the Fusion Services. These electronic communications may include emails, text messages, push messages, in-app messages, and notifications directly posted to your account on the Fusion Services. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that the same be in writing.

 

  1. Mobile Service Charges.

    You understand and agree that standard carrier charges may apply if you access the Fusion Services on a mobile device and that depending on your wireless service plan, your wireless carrier may impose data and/or other charges that will solely be your responsibility.

  2. Use of Location-Based Features.

    The Fusion Services may include features that depend on knowing a User’s geographical location (a “location-based service feature”). By using a location-based service feature on the Fusion Services, you expressly give consent to the collection and use of your location information by the Fusion Services in connection with the operation of such feature. In order to use a location-based service feature on a mobile device, it may be necessary for you to enable/turn on GPS tracking on your device.

 

  1. Mobile Device Platform Providers.

    Mobile device platform providers such as Apple, Inc., Google, Inc., Amazon.com, Inc., Samsung Electronics America, Inc. and Microsoft Corporation, are third-party beneficiaries to these Terms of Use. However, these platform providers are not parties to these Terms of Use and are not responsible for the operation, maintenance or support of the Fusion Services. You understand and agree that use of these platform providers’ devices to access the Fusion Services shall be subject to the usage terms set forth in the applicable platform providers’ terms of service.

 

    1. Third-Party Links and Ads.

      The Fusion Services may display links and/or ads for third-party websites, applications, goods or services. Fusion is not responsible for such third-party sites, applications, goods or services, and the display of links or ads does not constitute or imply Fusion’s endorsement, sponsorship or approval of such third-party sites, applications, goods or services. Your dealings with third parties that advertise on the Fusion Services, including any purchases or other transactions you enter into with them, are solely between you and such third-parties. Moreover, you understand and agree that: (i) your use of third-party sites, applications, goods or services will be governed by the terms and policies of the applicable third-party providers, and not by these Terms of Use; (ii) any claim or dispute arising from your use of third-party websites, applications, goods or services will be solely between you and the applicable third-party providers; and (iii) under no circumstances will Fusion be liable in any way for any act or omission of the third-party providers, or for any injury, loss or damage that you incur as a result of your use of third-party websites, applications, goods or services.

      1. Export Controls.

        You agree not to export, re-export, or transfer, directly or indirectly, any of the Fusion Services, or any U.S. technical data acquired from any of the Fusion Services, or any products utilizing such data, in violation of the U.S. export laws or regulations.

      2. Reservation of Rights.

        Fusion and our Suppliers reserve the rights to:

      • • discontinue any or all of the Fusion Services at any time and with or without notice;

      • • suspend and/or terminate your access to your account (if any) on any of the Fusion Services if we determine (in our sole and absolute discretion) that you have violated these Terms of Use, or that your use of the Fusion Services may expose Fusion or any of our Suppliers to liability of any kind, or may adversely affect the reputation or goodwill of Fusion or any of our Suppliers; and

      • • investigate, and cooperate with law enforcement and/or others in the investigation of, an actual or suspected violation of these Terms of Use by a User, including disclosing to law enforcement the identity of the User implicated in such investigation or in response to a valid court order or subpoena; EACH USER HEREBY WAIVES AND AGREES NOT TO ASSERT ANY CLAIM AGAINST FUSION OR ANY OF OUR SUPPLIERS BASED UPON OR BY REASON OF (i) ANY SUCH INVESTIGATION (WHETHER CONDUCTED BY FUSION, BY LAW ENFORCEMENT, OR BY OTHERS), (ii) ANY ACTION TAKEN IN CONNECTION WITH OR AS A RESULT OF SUCH INVESTIGATION, OR (iii) THE DISCLOSURE OF A USER’S IDENTITY TO LAW ENFORCEMENT OR IN RESPONSE TO A VALID COURT ORDER OR SUBPOENA.

      1. Prohibited Uses and Reporting Abuse.

        Any unlawful or unauthorized use of the Fusion Services is strictly prohibited. Without limiting the generality of the foregoing or any other provision in these Terms of Use, you may not:

      • • use the Fusion Services other than as specifically permitted by these Terms of Use;
      • • use the Fusion Services to violate any applicable law, including engaging in, facilitating, aiding or abetting criminal or other illegal activities;
      • • use the Fusion Services to violate the legal rights (including, without limitation, intellectual property rights and rights of privacy and publicity) of any person or entity;
      • • use the Fusion Services to impersonate, defame, harass, threaten, bully, or harm another person;
      • • use the Fusion Services to upload, post or transmit material that (i) is unlawful, threatening, hateful, discriminatory, abusive, pornographic, obscene, defamatory, fraudulent, or otherwise objectionable or offensive, or (ii) that contains virus, spyware, malware, or other harmful code, or (iii) that you do not have the legal right or authorization to disseminate;
      • • use the Fusion Services to exploit or endanger a minor;
      • • use the Fusion Services to sell, offer, market, advertise or promote third-party goods or services without the express written permission of Fusion;
      • • use the Fusion Services to send (or cause to be sent) “spam” or other unsolicited bulk messages;
      • • disrupt or interfere in any way with the operation of the Fusion Services or any server, network or system associated therewith, or another’s use of the Fusion Services;
      • • modify or otherwise make derivative works from, or decompile, disassemble or otherwise reverse engineer, any software or technology component of the Fusion Services;
      • • disable, remove, breach, or circumvent any content protection or access control mechanisms (including geo-blocking mechanisms) associated with any of the Fusion Services;
      • • access another’s account or a password-protected area on the Fusion Services without proper authorization; or
      • • use automated means (scripts, spiders, web crawlers, bots, etc.) (i) to collect or disseminate usernames, passwords, email addresses or other data from the Fusion Services; or (ii) to access the Fusion Services (other than by individually performed searches on publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices – but not caches or archives – of the Fusion Services, but excluding any search engines or indices that host, promote, or link primarily to infringing or unauthorized content).

To report abusive conduct by any User, please email abuse@fusion.tv.

      1. Proprietary Rights.

        All of the Fusion Services (including Content), Fusion Trademarks and Supplier Trademarks and all rights, title and interest therein and thereto (including, without limitation, all copyrights, moral rights, trademark rights, trade dress rights, trade secret rights, patent rights, and all other intellectual property or proprietary rights), are the property of Fusion and/or our Suppliers (as applicable), and are protected by U.S. and foreign intellectual property and other laws. Other than a limited license to use as specified in Section 16 of these Terms of Use, you have no other right or license with respect to any of the Fusion Services. Unauthorized use or exploitation of any of the Fusion Services, or of any other property of Fusion or our Suppliers, is strictly prohibited and may result in civil and/or criminal penalties. Fusion and our Suppliers reserve all rights not expressly granted herein. There are no implied rights or implied licenses granted to you under these Terms of Use.

All of the Fusion Trademarks appearing on the Fusion Services are the property of Fusion and protected by U.S. (federal and state) and foreign trademark laws. All of the Supplier Trademarks and other third-party marks and logos appearing on the Fusion Services are the property of their respective owners.

  1. Our Limited License to you.

    Subject to your compliance with these Terms of Use and all applicable laws, Fusion and our Suppliers hereby grant you a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to access the Fusion Services, for your own lawful personal and noncommercial use only. You understand and agree that the foregoing license:

    • • is personal to you, which means that only you are authorized to access the Fusion Services and that you may not sell, lend, rent, lease, transfer, sublicense, or otherwise provide such access to any third party; and
    • • is subject to immediate revocation and termination by us and/or our Suppliers, if we determine, in our sole judgement, that you are in violation of these Terms of Use or any applicable law, or that your use of the Fusion Services may expose us or any of our Suppliers to liability of any kind, or may adversely affect our or any of our Suppliers’ reputation or goodwill.

     
    NOTE: Access to certain Content (e.g., full episodes of a video program) on the Fusion Services requires purchase of a subscription service plan from a third-party television service provider (Spectrum, DirecTV, DISH, AT&T U-verse, Verizon Fios, etc.).

        1. Linking to Fusion Services.

          You may link to the Fusion Services from your website, application or service, subject to the following conditions:

        • •You may not link to any live stream or live streaming event on the Fusion Services (except with our prior written authorization).
        • •Your website, application or service may not disseminate virus, spyware, malware, or other harmful code, and may not feature any content that is unlawful, threatening, hateful, discriminatory, abusive, pornographic, obscene, defamatory, fraudulent, or otherwise objectionable to Fusion.
        • •You may not misrepresent or falsely suggest that your website, application or service is sponsored, endorsed or approved by, or is affiliated or otherwise connected or associated with, Fusion.
        • •You may not publish false, misleading or inaccurate information about, or otherwise disparage, Fusion or any of the Fusion Services.
        • •We are under no obligation to support your link.

     
    We reserve the right to deny you the permission to link to the Fusion Services at any time for any reason in our sole and absolute discretion. Upon our request, you must promptly edit and/or delete your link to the Fusion Services. By linking to the Fusion Services, you acknowledge acceptance of all of the above conditions and agree to be bound by them. If you do not agree, you must not link to the Fusion Services. Any deviation from the above conditions must be specifically authorized in writing by us.

        1. General Disclaimers.

          You understand and agree as follows:

        • THE FUSION SERVICES ARE FOR GENERAL INFORMATIONAL, EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY, AND ARE NOT INTENDED TO ADVISE, INSTRUCT OR MAKE RECOMMENDATIONS WITH RESPECT TO ANY PARTICULAR SUBJECT, MATTER, MATERIAL, PROBLEM, SITUATION OR INDIVIDUAL.

        • THE FUSION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, FUSION AND OUR SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE FUSION SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF TITLE AND NON-INFRINGEMENT. FUSION AND OUR SUPPLIERS DO NOT WARRANT THE AVAILABILITY, ACCESSIBILITY, COMPLETENESS, CORRECTNESS, ACCURACY, USEFULNESS, TIMELINESS, RELIABILITY OR SAFETY OF, OR THE RESULTS OF YOUR USE OF OR RELIANCE UPON, THE FUSION SERVICES.

        • WITHOUT LIMITATION TO THE GENERALITY OF THE ABOVE, FUSION AND OUR SUPPLIERS DO NOT WARRANT THAT THE FUSION SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECT OR ERROR WILL BE CORRECTED; OR THAT THE FUSION SERVICES WILL BE SECURE, SAFE, AND FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF OR RELIANCE UPON THE FUSION SERVICES IS ENTIRELY AT YOUR OWN RISK.

    NOTHING IN THIS SECTION AFFECTS ANY CONSUMER RIGHT OR REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

        1. Limitations of Liability

          YOU UNDERSTAND AND AGREE THAT IN NO EVENT WILL FUSION OR ANY OF OUR SUPPLIERS:

        • BE LIABLE UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND, OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) RELATING TO YOUR USE OF, YOUR INABILITY TO USE, OR YOUR RELIANCE UPON, ANY OF THE FUSION SERVICES, REGARDLESS OF WHETHER OR NOT FUSION AND/OR OUR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
        •  

        • BE LIABLE (ON AN AGGREGATE BASIS) TO YOU FOR ANY AND ALL CLAIMS RELATING TO YOUR USE OF, YOUR INABILITY TO USE, OR YOUR RELIANCE UPON, ANY OF THE FUSION SERVICES, IN AN AMOUNT THAT EXCEEDS (i) THE AMOUNT (IF ANY) ACTUALLY PAID BY YOU TO ANY OF THE FUSION SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM(S), OR (ii) ONE HUNDRED U.S. DOLLARS ($100.00), WHICHEVER IS LESS.
        •  

        • BE SUBJECT TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE FUSION SERVICES, AND YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR IN CONNECTION WITH THE FUSION SERVICES OR ANY ACT OR OMISSION BY FUSION OR ANY OF OUR SUPPLIERS, ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO SUCH AN INJUNCTION OR OTHER EQUITY RELIEF.
        •  

    NOTHING IN THIS SECTION AFFECTS ANY CONSUMER RIGHT OR REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

        1. Indemnification.

          YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS FUSION AND OUR SUPPLIERS (INCLUDING OUR AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS) AS WELL AS OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES, FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, DEMANDS, SUITS, PROCEEDINGS, JUDGMENTS, ORDERS, DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND LEGAL COSTS) ARISING FROM OR IN CONNECTION WITH: (i) YOUR USE OR MISUSE OF ANY OF THE FUSION SERVICES; OR (ii) YOUR VIOLATION OF THESE TERMS OF USE OR ANY APPLICABLE LAW.

        2. Arbitration Agreement and Class Action Waiver

          .The Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this arbitration agreement. This arbitration agreement shall survive termination of these Terms of Use.

     

    21.1. Except as related to the enforcement of intellectual property rights, and except as expressly otherwise provided below, you and Fusion agree to resolve on an individual basis through binding arbitration, all disputes, controversies, claims and causes of action arising out of or related to these Terms of Use or any of the Fusion Services, whether based in contract, tort, warranty, statute, or any other legal or equitable basis (including, without limitation, any dispute relating to the formation, validity, interpretation, applicability or enforceability of these Terms of Use, the arbitrability of any dispute or claim, and any claim that all or any part of these Terms of Use are void or voidable) (collectively, “Claims” and individually, a “Claim”).

     

    21.2. Arbitration is more informal than a lawsuit. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages). BY AGREEING TO ARBITRATE, YOU AND FUSION EACH AGREE TO UNCONDITIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY OR COURT; except that either you or Fusion may bring an individual action in a small claims court for a Claim that is within such court’s jurisdictional authority.

     

    21.3. Any arbitration between you and Fusion shall be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”), as modified by this arbitration agreement. The arbitration shall be conducted by a single, neutral arbitrator, and if you and Fusion cannot agree on the choice of the single arbitrator, the arbitrator shall be appointed pursuant to the JAMS Rules, with the participation and involvement of you and Fusion pursuant to JAMS Rule 12. The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/. The Consumer Arbitration Minimum Standards are available at https://www.jamsadr.com/consumer-minimum-standards/.

     

    21.4. In order to commence arbitration, you or we must first send via certified mail to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the Claim(s) and the specific facts giving rise to the Claim(s), and the relief requested. Your Notice to us must be sent via certified mail to Fusion Media Network, LLC, 605 Third Avenue,12th Floor, New York, NY 10158 ATTN.: Legal Dispute. We will send any Notice to you at the contact information we have for you. It is the sender’s responsibility to ensure that the recipient receives the Notice. During a period of 45 days following our or your receipt of a Notice, you and we will make reasonable efforts to resolve the Claim(s) through informal negotiations, and arbitration cannot commence during such 45-day period. If we do not resolve the Claim(s) within such 45-day period, then either you or we may initiate arbitration in accordance with the JAMS Rules.

     

    21.5. The arbitrator must follow these Terms of Use and will have the exclusive authority to resolve issues relating to the formation, validity, interpretation, applicability and enforceability of these Terms of Use (including, without limitation, the arbitrability of a dispute/claim, and any claim that all or any part of these Terms of Use are void or voidable).

     

    21.6. Any arbitration between you and Fusion must be held either: (i) at a location determined pursuant to the JAMS Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and Fusion; or (iii) if the only Claim(s) in the arbitration is/are asserted by you and is/are for less than $10,000 in aggregate, then (at your election) by telephone or by written submission.

     

    21.7. The arbitrator shall: (i) apply internal laws of the State of New York consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the laws of the United States, irrespective of any conflict of law principles; (ii) entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with New York or federal rules of procedure, as applicable; (iii) honor claims of privilege recognized at law; and (iv) have authority to award any form of legal or equitable relief consistent with applicable laws.

     

    21.8. The arbitrator shall issue a written award supported by a statement of decision setting forth the arbitrator’s determination of the dispute/claim and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets.

     

    21.9. Other than an arbitration initiated by you against Fusion that was determined by the arbitrator to be frivolous or have been brought for an improper purpose, Fusion will pay the arbitration filing and arbitrator fees, or reimburse you for the payment of such fees. If you prevail in the arbitration and the arbitrator issues you an award that is greater than the value of Fusion’s last written settlement offer made before an arbitrator was selected (or if we did not make a settlement offer before an arbitrator was selected), then we will pay you the amount of the award or US$1,000, whichever is greater, and will also pay (or reimburse you for) your reasonable attorneys’ fees and other legal expenses incurred in the arbitration. We waive any right to seek an award of attorneys’ fees and expenses in connection with any non-frivolous arbitration between you and us.

     

    21.10. You and Fusion each agree to maintain the confidential nature of the arbitration and not to disclose the fact of the arbitration, any documents exchanged as part of any mediation or proceedings of the arbitration, the arbitrator’s decision, or the existence or amount of any Award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to such confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by applicable law or a valid court order.

     

    21.11. Fusion may modify the provisions of this arbitration agreement, but such modification will only become effective thirty (30) days after we have notified you of such modification by email or by posting a notice of the changes on the Fusion Services, and only on a prospective basis for disputes/claims arising after the effective date of such notification. If any modification to this arbitration agreement is deemed illegal, invalid or unenforceable, then this arbitration agreement without such modification and in effect at the time of your acceptance of these Terms of Use shall govern.

    21.12. CLASS ACTION WAIVER:YOU AND FUSION AGREE THAT: (i) ANY CLAIM WILL BE BROUGHT IN ANY FORUM IN AN INDIVIDUAL CAPACITY ONLY, AND WILL NOT BE BROUGHT ON BEHALF OF, OR AS PART OF, ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING; (ii) NEITHER YOU NOR FUSION WILL SEEK TO HAVE A CLAIM HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PURPORTS TO ACT IN A REPRESENTATIVE CAPACITY; AND (iii) NO ARBITRATION OR OTHER PROCEEDING CAN BE COMBINED WITH ANOTHER WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF ALL PARTIES TO THE ARBITRATION OR PROCEEDING. If the foregoing class action waiver is found to be illegal or unenforceable as to all or some parts of a Claim, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.

        1. Governing Law; Jurisdiction.

     

    22.1. These Terms of Use shall be governed by and construed in accordance with the laws of the State of New York, U.S.A., without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods, if applicable, shall not apply to these Terms of Use.

     

    22.2. Except with respect to Claims to be resolved by binding arbitration in accordance with the arbitration agreement set forth in Section 21 of these Terms of Use, you and Fusion each agree to submit to the exclusive jurisdiction of the state or federal courts located in New York, New York to resolve any Claim arising out of or related to these Terms of Use or any of the Fusion Services. YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD-PARTY CLAIMS) ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR ANY OF THE FUSION SERVICES.

     

        1. Time Limit on Filing of Claims.

          YOU UNDERSTAND AND AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR ANY OF THE FUSION SERVICES, MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR BE FOREVER BARRED.

        1. Miscellaneous.

          These Terms of Use (together with the other legal notices referenced herein) constitute the entire agreement between you and Fusion concerning the use of the Fusion Services. If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, all of which shall remain in full force and effect. No waiver of any provision of these Terms of Use shall be deemed a further or continuing waiver of such provision or a waiver of any other provision, and Fusion’s failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision. Any provision of these Terms of Use which by its nature should survive the termination of these Terms of Use shall survive such termination.