PRIVACY POLICY
1. SCOPE OF TERMS & CONDITIONS
Unless otherwise indicated, these Terms and
Conditions of Service (“Terms & Conditions”) apply to (i)
your use of and/or access to the Fordyce Fusion website and/or other websites
(collectively, “Website”) which are owned or operated by Fordyce Fusion or its
affiliates (collectively, “Fordyce Fusion”, “we,” “us,” or “our”), including
any portions thereof available only to subscribers, and (ii) your use of and/or
access to the mobile phone applications which we may own or operate currently
or in the future (collectively, the “Mobile App”) and (iii) your use of and or
access to any content or information and other online or mobile-enabled
technology, digital tools and other services and products provided by us
(together with the Website and the Mobile App, collectively, the “Services”).
For purposes of these Terms & Conditions, “affiliates” shall mean any
entity or person, directly or indirectly, who provided services to Fordyce
Fusion. We are committed to protecting your privacy and security. For more
information, you should review our Privacy Policy which are incorporated into
these Terms & Conditions by this reference. IF YOU ARE NOT WILLING TO BE OR
CANNOT BE BOUND BY ALL OF THESE TERMS AND CONDITIONS, INCLUDING WITHOUT
LIMITATION THE FOLLOWING AGREEMENT AND ACKNOWLEDGEMENT, THEN DO NOT ACCESS,
BROWSE OR USE THE SERVICES. MOREOVER, FORDYCE FUSIONDOES NOT AND WILL NOT GRANT
YOU ANY RIGHT OR LICENSE TO ACCESS, BROWSE OR USE THE SERVICES WITHOUT YOUR
WILLINGNESS AND ABILITY TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT. IF YOU DO NOT ABIDE BY THE PROVISIONS OF THESE TERMS &
CONDITIONS, EXCEPT AS WE MAY OTHERWISE PROVIDE FROM TIME TO TIME, YOU AGREE
THAT WE MAY IMMEDIATELY DEACTIVATE OR DELETE YOUR USER ACCOUNT AND ALL RELATED
INFORMATION AND FILES IN YOUR USER ACCOUNT AND/OR RESTRICT ANY FURTHER ACCESS
TO SUCH INFORMATION AND/OR FILES, OR OUR SERVICES, WITH OR WITHOUT NOTICE. You
must exercise caution, good sense and sound judgment in using the Services. You
are prohibited from violating, or attempting to violate, the security of the
Services. Any such violations may result in criminal and/or civil penalties
against you. Fordyce Fusion will investigate any alleged or suspected
violations and if a criminal violation is suspected, we may contact and/or
cooperate with law enforcement agencies in their investigations.
2. AGREEMENT AND ACKNOWLEDGEMENT
a. User Agreement. By using the Services, you accept
these Terms & Conditions and agree to be legally bound and to abide by the
terms, conditions, and notices contained or referenced herein, just as if you
had signed them. b. Changes to Terms & Conditions. From time to time, we
may, at our sole discretion, change, modify, supplement or remove portions of
these Terms & Conditions (“Additional Terms”). Such Additional Terms shall
become effective upon posting by the Company on the Website, the Mobile App,
via the Service or sending you an email or other notification. You will be
deemed to have agreed to such Additional Terms by your decision to continue
accessing the Mobile App or the Website or otherwise using any of the Services
following the date in which such Additional Terms become effective. c. Modification
of Services. In our sole discretion and without prior notice or liability, we
may discontinue, modify or alter any aspect of the Services provided to you,
including, but not limited to, (i) restricting the
time the Services are available, (ii) restricting the amount of use permitted,
(iii) restricting or terminating any user’s right to use the Services and (iv)
changing any feature or functionality provided by the Services. You agree that
any termination or cancellation of your access to, or use of, the Services may
be effected without prior notice. Further, you agree that we shall not be
liable to you or any third-party for any termination or cancellation of your
access to, or use of, our Services. d. Downloading Mobile App. You may access
the Mobile App which can be downloaded from an applications store or
applications distribution platform, such as the Apple Mobile App Store or
Google Play, (the “Mobile App Provider”). You acknowledge and agree that: (i) these Terms & Conditions are entered into between
us, and not with the Mobile App Provider, and that we are solely responsible
for the Mobile App (not the Mobile App Provider); (ii) the Mobile App Provider
has no obligation to furnish any maintenance and support services with respect
to the Mobile App; (iii) the Mobile App Provider is not responsible for
addressing any claims you have or any claims of any third party relating to the
Mobile App or your possession and use of the Mobile App, including, but not
limited to: (a) product liability claims; (b) any claim that the Mobile App
fails to conform to any applicable legal or regulatory requirement; and (c)
claims arising under consumer protection or similar legislation; (iv) in the
event of any third party claim that the Mobile App or your possession and use
of that Mobile App infringes that third party’s intellectual property rights,
we will be responsible for the investigation, defence, settlement and discharge
of any such intellectual property infringement claim to the extent required by
these Terms & Conditions; (v) the Mobile App Provider and its subsidiaries
are third party beneficiaries of these Terms & Conditions as it relates to
your license of the Mobile App, and that, upon your acceptance of these Terms
& Conditions, the Mobile App Provider will have the right (and will be
deemed to have accepted the right) to enforce these Terms & Conditions as
related to your license of the Mobile App against you as a third party
beneficiary thereof; and (vi) you must also comply with all applicable third party
terms of service when using the Services.
3. ELIGIBILITY
Individuals who are currently or have a goal to be
at a BMI below 18.5 will be unable to use our Services. According to the Centre
for Disease Control (CDC), current medical standards indicate a healthy BMI
range to be between 18.5-24.9, with a BMI falling below 18.5 to be considered
underweight. Weight loss for underweight individuals is not recommended and
should be supervised by a medical professional. Similarly, individuals with type
1 diabetes should not make use of our Services prior to consulting with a
registered practitioner.
4. SUBSCRIPTIONS
Our Services consist of (i)
a free version (“Free Service”) and (ii) a paid for service (“Paid Service”).
Paid Service requires a monthly fee, which is paid by the user, while the Free
Service does not require any payment. Whether or not you use the Free or Paid
Service, you are responsible for all charges and fees associated with
connecting to and using the Website and/or Mobile App, including without
limitation all telephone access lines (including mobile data and data roaming
charges, when applicable), telephone and/or internet service provider fees,
telephone and computer equipment, sales taxes and any other fees and charges
necessary to access our Website and/or Mobile App.
5. FEES, RENEWAL, CANCELLATIONS &
REFUND POLICIES
If you are a subscriber to our Paid Service, you
further agree as follows: a. Agreement to Pay. (i)
Paid Service. If you are a Paid Service User, you will be responsible for the
fixed and periodic charges and fees (including prepayment plan fees for
multiple periods or recurring monthly fees) you selected at the time of
subscription. Applicable taxes, and other charges and fees incurred in order to
access the Premium Services may also apply. b. Auto-Renewal. Unless instructed
otherwise, in writing, your Paid Service membership will automatically be
extended for successive, renewal periods, one month in duration at a time, at
the then-current non-promotional subscription rate. Until you cancel, giving
one calendar months written notice, we will charge or debit your payment method
at the beginning of your subscription. Your non-cancellation of the Paid
Services or continued use of the paid subscription features of the Paid Service
will reaffirm that we are authorized to charge you. If your credit or debit
account has been closed or your payment method is otherwise invalid, your
subscription may not renew and your subscription will be automatically be
suspended. The renewal charge will generally be the same as the prior period’s
charge, unless we notify you in advance at the time of sign up or prior to the
beginning of the renewal period as described above. If (i)
you purchased a multiple-period prepayment plan or (ii) you were eligible for a
promotional rate but are no longer eligible for that rate, then your
subscription will be offered to renew your subscription at our then-current
non-promotional subscription rates at the start of the renewal period. If you
wish to renew and we are currently offering promotional rates at such time, you
must renew your subscription prior to the termination of your current plan. If
you fail to renew your subscription for any Paid Services before its scheduled
expiration date, then the then-current non-promotional subscription rate will
apply. c. Cancellation of Paid Service Subscription. You can cancel your
subscription for our Paid Services at any time by contacting your dietician at
iain@fordycefusion.co.za, or by such other means as we may provide from time to
time. Cancellation of subscription must be done in writing. All cancellations
require a minimum 1 calendar months’ notice to become effective. We reserve the
right to collect fees, surcharges, or costs incurred before your cancellation takes
effect. If you terminate your paid subscription, your subscription will remain
active until the end of your then-current subscription period. d. No Refund
Policy. (i) All fees and charges assessed by Fordyce
Fusion are non-refundable. e. Membership through Fordyce Fusion. Members who
have Free use of the Fordyce Fusion programme due to their Fordyce Fusion
membership, expressly agree that on the termination of their Fordyce Fusion for
ANY reason, their membership of Fordyce Fusion will be terminated. f.
Modifications. We reserve the right to revise the terms of the fee charge,
cancellation and refund policies, upon reasonable advance notice communicated
to you through a posting on the Website and/or Mobile App or such other means
as we may deem appropriate from time to time (including electronic mail or
conventional mail). Any changes made will apply to all memberships created or
renewed after the date such change was implemented.
6. USER ACCOUNT AND SECURITY
In connection with your use of certain features of
the Services, you will be required to complete a registration form. You
represent and warrant that all user information you provide on the registration
form or otherwise in connection with your use of the Services will be current,
complete and accurate. As a registered user of the Services, you are entirely
responsible for maintaining the confidentiality of your user account
information. You may not use the account or user name
of any other member at any time. You must notify us immediately in the event of
any known or suspected unauthorized use of your user account, or any known or
suspected breach of security, including loss, theft, or unauthorized disclosure
of your or anyone else’s user account information. You are also entirely
responsible for any and all activities which occur
under your user account. We will not be liable for any loss that you incur as a
result of someone else using your account, either with or without your
knowledge. You may also be held liable for any losses incurred by Fordyce
Fusion, its affiliates, officers, directors, employees, consultants, agents and
representatives due to someone else’s use of your account. As a subscriber to
our Paid Service, you further agree as follows: a. Subscription Data. For
purposes of your use of the Paid Service including identification and billing,
you agree to provide us with true, accurate and complete information as
required by the subscription or sign up process to the
Paid Service (“Subscription Data”). You agree to maintain and promptly update
the Subscription Data and any other information you provide to us to keep it
accurate. Without limiting any other provision of these Terms & Conditions,
if you provide any information that is untrue, inaccurate, or incomplete, or we
have reasonable grounds to suspect that such is the case, we reserve the right
to suspend or terminate your user account or subscription and refuse any and
all current or future use by you of our Services (or any portion thereof). You
are obligated to check whether your Subscription Data is current and accurate,
and, if not, to correct or update your Subscription Data. b. One Account Per
User. You agree not to register or subscribe for more than one account, create
an account on behalf of someone else, or create a false or misleading identity
on this Website. If your registration or subscription is revoked for any
reason, you agree not to register or subscribe again with our Services using
another user name or through any other means. If we have reason to suspect, in
our sole discretion, that your account has previously been terminated, we
reserve the right to terminate any new accounts you have registered without any
notice to you, or to exercise any other remedies available to us under these
Terms & Conditions or by law.
7. CONSENT TO RECEIVE ELECTRONIC
COMMUNICATIONS FROM FORDYCE FUSION & BUSINESS CUSTOMERS
a. Legal Communications. We may send the following
to you by email or posting them on the Website and/or the Mobile App: these
Terms & Conditions, including legal disclosures; future changes to these
Terms & Conditions, Privacy Policy, and other notices, legal communications
or disclosures and information related to the Service. Such communications are
part of the Services which you cannot opt out of receiving. b. Service Announcements.
In using the Services, you may receive periodic electronic communications from Fordyce
Fusion, regarding the Services, such as new product offers and other
information regarding the Website and/or the Mobile App, which are part of the
Services and which you cannot opt out of receiving. c. Promotional
Communications. You may also receive periodic promotions and other offers or
materials Fordyce Fusion believes might be of interest to you. You can opt-out
of receiving these promotional messages at any time by (a) following the
unsubscribe instructions contained in each message; or (b) changing the messaging
preferences in your account. d. Withdrawing Your Consent. If you later decide
that you do not want to receive future Communications electronically, please
send an email to iain@fordycefusion.co.za
informing Fordyce Fusion of such intention. Your withdrawal of consent shall be
effective within a reasonable time after we receive your withdrawal notice
described above. Your withdrawal of consent will not affect the legal validity
or enforceability of the Terms provided to, and electronically signed by, you
prior to the effective date of your withdrawal. If you withdraw your consent to
receive Communications electronically, we may terminate your account and/or
access to the Service (or any part thereof).
8. PUBLIC FORUM: INFORMATION PROVIDED
BY MEMBERS
a. Definition. “Public Forum” is any area, site or
feature offered as part of the Services (including, but not limited to, chat,
message board, blog, groups, emails or instant messaging features) that enables
you (a) to upload, submit, post, display, perform, distribute and/or view User
Content, and/or (b) to communicate, share, or exchange User Content with other
members. Except as otherwise provided in our Privacy Policy, all Public Forum
communications are public and not private communications. You are, and shall
remain, solely responsible for the User Content that you upload, submit, post,
transmit, communicate, share or exchange by means of any Public Forum and for
the consequences of submitting or posting same. b. Fordyce Fusion Group. As a
subscriber to our Paid Services, you are automatically invited to join and
participate in group discussions (“Fordyce Fusion”) with other Services users
that may be designated as a Fordyce Fusion Group facilitator by Fordyce Fusion
(such person or persons, collectively, the “Facilitators”) as well as a coach,
who may be an employee or a contractor of Fordyce Fusion, personnel from an
unaffiliated third party service provider. Fordyce Fusion Group is a Public
Forum, and by using the Fordyce Fusion Group, you may receive electronic
communications, including group chat messages and/or private messages from
Coaches, Facilitators and other Fordyce Fusion Group members who are members of
the same Fordyce Fusion Group. Fordyce Fusion Group members can see your user
id and public profile, but will not see your email
address. If you do not wish to receive messages from other members, you should
opt out of a Fordyce Fusion Group. Whether you transmit any user content via
private messaging or group chat feature, you agree to abide
by our community standards and conduct guidelines at all times. You
further acknowledge that by providing you with the ability to distribute User
Content in the discussion forums, we are acting as a passive conduit for such
distribution and we are not undertaking any obligation or liability relating to
any User Content or activity in any Public Forum, nor do we endorse any such
User Content or activity. Although we reserve the right to monitor some, all,
or no areas of the Services (including any discussion forum and Fordyce Fusion
Group) for adherence to the community standards and conduct guidelines set
forth above and to remove, without notice, any User Content for any reason, we
have no obligation to review Content prior to the Content’s posting or to
delete User Content that you may find objectionable or offensive. FORDYCE
FUSION DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR PUBLIC FORUMS
AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION
PROVIDED THEREON. c. Public Profile: Information Provided by Members. In order
to join a Fordyce Fusion Group or access similar services that provide Public
Forums or interactions with other members, you may be required to create public
profiles, which may contain certain identifying information (such as age,
profile photos, location, etc). In addition, members have the option to post
photographs, messages, videos and other information on their public profiles. Fordyce
Fusion relies on its members to provide current and accurate information, and Fordyce
Fusion does not, and cannot, investigate information contained in member public
profiles. Accordingly, we must assume that information contained in each member
public profile is current and accurate. FORDYCE FUSION DOES NOT REPRESENT,
WARRANT OR GUARANTEE THE CURRENCY OR ACCURACY OF PUBLIC PROFILE INFORMATION,
AND HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY INFORMATION
PROVIDED BY MEMBERS BY MEANS OF PUBLIC PROFILES OR OTHERWISE IN CONNECTION WITH
THEIR USE OF THE SERVICES.
9. LIMITED LICENSE
Subject to your continued compliance with the Terms
& Conditions, including without limitation the timely payment of all applicable
fees, we grant you a non-exclusive, nontransferable,
non-sublicensable, fully revocable, limited license to access and use our
Services (whether through the Website or by downloading and installing the
Mobile App, including any updates and bug fixes). Your use is limited for your
personal, noncommercial use only. The Services, or
any portion thereof, may not be reproduced, duplicated, copied, modified, sold,
resold, distributed, visited, or otherwise exploited for any commercial purpose
without the express written consent of Fordyce Fusion. Furthermore, except for
the limited rights granted in this Section, you will not (and will not
encourage or assist any third party to): (i) modify,
alter, tamper with, repair or otherwise create derivative works of the Services
or any software or technology included in or used or distributed by Fordyce
Fusion to provide the Services; or (ii) reverse engineer, disassemble or
decompile the Services, or attempt to discover or recreate the source code for
the Services.
10. RESTRICTIONS ON USE OF CONTENT
You acknowledge that our Services contain content,
information, software, photos, video, text, graphics, music, sounds, questions,
creative suggestions, messages, comments, feedback, ideas, recipes, notes,
drawings, articles and other materials (hereinafter defined collectively,
“Content”) that are protected by copyrights, patents, trademarks, trade secrets
and/or other proprietary rights, and that these rights are valid and protected
in all forms, media and technologies existing now or hereafter developed. All
Content is copyrighted and we own a copyright in the selection, coordination,
arrangement and enhancement of such Content. All trademarks appearing on the
Services are trademarks of their respective owners. The Fordyce Fusion Marks
(hereinafter defined) are tradename and the registered trademark and service
mark of Fordyce Fusion. Our commercial partners, suppliers, advertisers,
sponsors, licensors, contractors and other third parties may also have
additional proprietary rights in the Content which they make available on our
Services. You may not modify, publish, transmit, distribute, perform,
participate in the transfer or sale, create derivative works of, or in any way
exploit, any of the Content, in whole or in part. When Content is downloaded to
your computer, phone, tablet or any other mobile device, you do not obtain any
ownership interest in such Content. Modification of the Content or use of the
Content for any other purpose, including, but not limited to, use of any
Content in printed form or on any other applications or networked computer
environment is strictly prohibited unless you receive our prior written
consent. We may at any time suspend your use of the Services and/or remove or
disable any Content as to which we reasonably and in good faith believe is in
violation of any of these Terms & Conditions. We will provide you with
notice of any such suspension or disablement before its implementation unless
such suspension or disablement is necessary to comply with legal process,
regulation, order or prevent imminent harm to the Services or any third party,
in which case we will notify you to the extent allowed by applicable law of
such suspension or disablement as soon as reasonably practicable thereafter.
11. USER CONTENT
a. Definition. “User Content” is any content,
materials or information (including without limitation, any text, information,
graphics, messages, photos, images, nutritional information contributed to the
our food database and works of authorship kind), data, questions, comments,
suggestions or other content, including personally identifiable information
that you upload, send, email, display, perform, distribute, post or otherwise
transmit to us, at our request or on your own, on, or through the Services (such
as message boards, recipe logging), whether in connection with your use of the
Services or through the use of any Third Party Websites or Third Party Services
or otherwise, and whether publicly posted or privately transmitted. b.
Agreement. You represent and warrant that, when using the Services, you will
obey the law and respect the intellectual property rights of others. Your use
of the Services is at all times governed by and subject to laws regarding
copyright ownership and use of intellectual property generally. You agree not
to upload, post, transmit, display, perform or distribute any content,
information or other materials in violation of any third party’s copyrights,
trademarks, or other intellectual property or proprietary rights, or rights or
publicity or privacy, or in violation of any applicable law or regulation. YOU
SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY
INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE SERVICES. YOUR
BEAR THE SOLE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO
NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS. c. Grant of License. You hereby
grant Fordyce Fusion, its directors, officers, employees, agents, affiliates,
representatives, service providers, partners, sublicensees, successors and
assigns (collectively, the “Fordyce Fusion Parties”) a royalty-free, perpetual,
irrevocable, sublicensable, assignable, non-exclusive right (including any
moral rights) and license (as well as consent) to use, license, reproduce,
modify, adapt, publish, translate, transmit, edit, reformat, create derivative
works from, distribute, derive revenue or other remuneration from, communicate
to the public, perform, display and otherwise use any User Content (in whole or
in part and with or without the use of your name) worldwide and/or to
incorporate the User Content in other works in any form, media, or technology
now known or later developed, for the full term of any copyrights, trademarks
and other intellectual and proprietary rights (collectively, the “Rights”) that
may exist in such User Content. You hereby represent and warrant that you own
all rights, title and interest in and to User Content or are otherwise
authorized to grant the rights provided to the Fordyce Fusion Parties under
this section. You also warrant that, to the extent you are not the exclusive
holder of all Rights in a User Content, any third party holder of any Rights,
including moral rights in such User Content, has completely and effectively
waived all such rights and validly and irrevocably granted to you the right to
grant the license stated above. You further acknowledge that we and our
successors and assigns shall be entitled to unrestricted use of the User
Content for any purpose whatsoever, commercial or otherwise, without
compensation to the provider of the User Content. You also permit any user to
access, display, view, store and reproduce any User Content that you have made
available in any Public Forum for personal use. Subject to the foregoing, the
owner of a User Content placed on the Services retains any and all Rights that
may exist in such User Content. Except as provided in our Privacy Policy, none
of the User Content shall be subject to any obligation of confidence on our
part, and you agree to waive, and hereby waive, any claims arising from or
relating to the exercise by the Fordyce Fusion Parties of the rights granted
under this section. You will not be compensated for any exercise of the license
granted under this section. We are not responsible for maintaining a copy of
any material we remove from our Services, and we are not liable for any loss
you incur in the event that Content you post or
transmit to our Services is removed. Fordyce Fusion reserves the right to (i) remove, suspend, edit or modify any User Content in its
sole discretion at any time, without notice to you and for any reason
(including, but not limited to, upon receipt of claims or allegations from
third parties or authorities relating to such User Content or if Fordyce Fusion
is concerned that you may have violated these Terms & Conditions), or for
no reason at all and (ii) to remove, suspend or block any User Content. Fordyce
Fusion also reserves the right to access, read, preserve, and disclose any
information as Fordyce Fusion reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or
governmental request, (ii) enforce these Terms & Conditions, including
investigation of potential violations hereof, (iii) detect, prevent, or otherwise
address fraud, security or technical issues, (iv) respond to user support
requests, or (v) protect the rights, property or safety of Fordyce Fusion, its
users and the public. You acknowledge that all User Content are the sole
responsibility of the person who made such User Content. This means that you
are entirely responsible for all User Content that you post, email or otherwise
transmit to the Website, the Mobile and the Services. We do not control the
User Content posted, emailed or otherwise transmitted on our Services by others
and, as such, we do not guarantee the accuracy, integrity or quality of such
User Content. Although we have adopted community standards and conduct
guidelines for the users of the Services, you understand that by using the Services,
you may be exposed to User Content that are offensive or objectionable. FORDYCE
FUSION DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE USER
CONTENT, AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR
INFORMATION PROVIDED HEREIN. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY
WAY FOR ANY USER CONTENT (OTHER THAN FOR CONTENT DEVELOPED BY US), INCLUDING,
BUT NOT LIMITED TO, FOR ANY ERRORS OR OMISSIONS IN ANY USER CONTENT, OR FOR ANY
LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY USER CONTENT
POSTED, EMAILED OR OTHERWISE TRANSMITTED TO OR THROUGH THE SERVICES.
12. THIRD-PARTY WEBSITE CONTENT
Certain Contents provided in
the Website and/or Mobile App include links to websites of third parties
(“Third-Party Websites”), some of whom may have established relationships with Fordyce
Fusion and some of whom may not. We do not have control over the content and
performance of Third-Party Websites. FORDYCE FUSION HAS NOT REVIEWED, AND
CANNOT REVIEW OR CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE OR
OTHER GOODS OR SERVICES, MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES AND
DOES NOT ENDORSE (AND IS NOT RESPONSIBLE OR LIABLE FOR) ANY CONTENT,
ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH THIRD PARTY WEBSITES. ACCORDINGLY, FORDYCE FUSION DOES NOT
REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE, OR THE ACCURACY,
CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION MATERIAL,
GOODS OR SERVICES AVAILABLE THROUGH THIRD-PARTY WEBSITES. FORDYCE FUSION
DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY
DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR
USE OF OR RELIANCE ON, ANY CONTENT, ADVERTISEMENTS, PRODUCTS OR OTHER RESOURCES
AVAILABLE ON ANY THIRD-PARTY WEBSITES (REGARDLESS OF WHETHER WE DIRECTLY OR
INDIRECTLY LINK TO SUCH CONTENT, ADVERTISEMENTS, PRODUCTS OR OTHER RESOURCES).
YOU AGREE THAT, WHEN LINKING TO OR OTHERWISE ACCESSING OR USING A THIRD-PARTY
WEBSITE, YOU ARE RESPONSIBLE FOR: (I) TAKING PRECAUTIONS AS NECESSARY TO
PROTECT YOU AND YOUR COMPUTER SYSTEMS FROM VIRUSES, WORMS, TROJAN HORSES,
MALICIOUS CODE AND OTHER HARMFUL OR DESTRUCTIVE CONTENT; (II) ANY DOWNLOADING,
USE OR PURCHASE OF MATERIAL THAT IS OBSCENE, INDECENT, OFFENSIVE, OR OTHERWISE
OBJECTIONABLE OR UNLAWFUL, OR THAT CONTAINS TECHNICAL INACCURACIES,
TYPOGRAPHICAL MISTAKES AND OTHER ERRORS; (III) ANY DOWNLOADING, USE OR PURCHASE
OF MATERIAL THAT VIOLATES THE PRIVACY OR PUBLICITY RIGHTS, OR INFRINGES THE
INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS OF THIRD PARTIES, OR THAT IS
SUBJECT TO ADDITIONAL TERMS AND CONDITIONS, STATED OR UNSTATED; (IV) ALL
FINANCIAL CHARGES OR OTHER LIABILITIES TO THIRD PARTIES RESULTING FROM
TRANSACTIONS OR OTHER ACTIVITIES; AND (V) READING AND UNDERSTANDING ANY TERMS
OF USE OR PRIVACY POLICIES THAT APPLY TO THOSE THIRD-PARTY WEBSITES.
13. COMMUNITY STANDARDS AND CONDUCT
GUIDELINES
You agree that you will not (and/or will not use
the Website, the Mobile App and/or any part of our Services to): a. Upload,
post, email or otherwise transmit any User Content or other materials that: (i) are unlawful, harmful, threatening, abusive, harassing,
inflammatory, tortious, defamatory, vulgar, libellous, slanderous,
discriminatory, invasive of another’s privacy, hateful, or racially, ethnically
or otherwise objectionable (in our sole discretion); (ii) contain adult
content, including obscene, pornographic, and/or sexual terms, descriptions
and/or images, nudity, profanity or graphic violence; (iii) incite or encourage
criminal or terrorist activities or physical harm against another; (iv) exploit
political agendas or “hot button” issues for commercial use; or that contain
hate speech based upon the race, sex, national original, religious affiliation,
marital status, sexual orientation, gender identify, or language of an
individual or group; (v) are not your own, or that you do not have a right to
upload, post, email or otherwise transmit under any law or under contractual or
fiduciary relationships (such as insider information, proprietary and
confidential information learned or disclosed as part of employment
relationships or under nondisclosure agreements); (vi) infringe upon any
patent, trademark, trade secret, copyright, right of privacy or publicity or
other proprietary rights of any party or that are deceptive, misleading or
fraudulent or that may otherwise be unlawful or give rise to civil or criminal
liability; (vii) are unauthorized advertising, promotional materials, “junk mail,”
“spam,” “phishing,” “chain letters,” “pyramid schemes,” or any other form of
solicitation, opinions or notices, commercial or otherwise; (viii) contain
software viruses, spyware, adware, worms, or any other computer malware or
malicious code, files or programs designed to interrupt, destroy or limit the
functionality of any computer software or hardware or telecommunications
equipment; b. Harm minors in any way, or solicit or otherwise attempt to gain
any information from a minor; c. Advertise or otherwise solicit funds or
constitute a solicitation for goods or services; d. Impersonate any person or
entity, including, but not limited to any user of the Services, a director,
officer, employee, shareholder, agent or representative of FORDYCE FUSION, our
Business Customers or any other person or entity, or falsely state or otherwise
misrepresent your affiliation with FORDYCE FUSION, our Business Customers or
any other person or entity; e. Provide false, misleading or inaccurate
information to FORDYCE FUSION or any other member; f. Create more than one
unique public profile or register for more than one account except as
specifically permitted in these Terms & Services, create an account on
behalf of someone else, or create a false or misleading identity on the
Services; g. Forge headers or otherwise manipulate identifiers in order to
disguise the origin of any Content or other materials transmitted to or through
the Services; h. Attempt to probe, scan or test the vulnerability of the
Services or any associated system or network, or breach security or
authentication measures without proper authorization; i.
Use or affect the Services in any manner that could damage, disable, overburden
or impair the Services or its functionality, or disrupt the normal flow of dialogue
(including, without limitation, “flooding,” “mail bombing,” or “crashing”), or
otherwise act in a manner that negatively affects or otherwise diminishes the
quality of another user’s experience of the Services; j. Interfere with or
disrupt the Services or servers or networks connected to the Services, or
disobey any requirements, procedures, policies or regulations of networks
connected to the Services; k. Intentionally or unintentionally violate any
applicable local, state, national or international law, including, but not
limited to, any regulations having the force of law; l. “Stalk” or otherwise
harass another user or employee of the Services; m. Solicit, collect or post
personal data or attempt to solicit, collect or post personal data about other
users of the Services, including usernames or passwords; n. Access or attempt
to access another user’s account without his or her consent; o. Reverse
engineer, disassemble or decompile the Mobile App, or attempt to discover or
recreate the source code for the Mobile App or any portion of the Services; or
p. Assign, transfer or sublicense your rights as a registered user of the
Services. Your privilege to use the Services (including your ability to
contribute to discussions on ANY Fordyce Fusion Group Forum or communicate with
Coaches and/or other users in a Fordyce Fusion Group) depends on your
compliance with the community standards and conduct guidelines set forth above.
We may revoke your privileges to use all or a portion of the Services and/or
take any other appropriate measures to enforce these community standards and
conduct guidelines if violations are brought to our attention. Further, if you
fail to adhere to our community standards and conduct guidelines, or any part
of these Terms & Conditions, we may terminate, at our sole discretion, your
use of, or participation in, any Public Forum or the Services. Any violation of
this section may subject you to civil and/or criminal liability. YOU AGREE AND
UNDERSTAND THAT YOU MAY BE HELD LEGALLY RESPONSIBLE FOR DAMAGES SUFFERED BY
OTHER MEMBERS OR THIRD PARTIES AS THE RESULT OF YOUR REMARKS, INFORMATION,
FEEDBACK OR OTHER CONTENT POSTED OR MADE AVAILABLE ON THE SERVICES (INCLUDING
ANY PUBLIC FORUM) THAT IS DEEMED DEFAMATORY OR OTHERWISE LEGALLY ACTIONABLE. FORDYCE
FUSION IS NOT LEGALLY RESPONSIBLE, NOR CAN IT BE HELD LIABLE FOR DAMAGES OF ANY
KIND, ARISING OUT OF OR IN CONNECTION TO ANY DEFAMATORY OR OTHERWISE LEGALLY
ACTIONABLE REMARKS, INFORMATION, FEEDBACK OR OTHER CONTENT POSTED OR MADE
AVAILABLE ON THE SERVICES.
14. HEALTH AND MEDICAL SERVICE
DISCLAIMER
WE DO NOT PROVIDE PROFESSIONAL MEDICAL SERVICES OR
ADVICE. THE SERVICES PROVIDED BY THE WEBSITE AND/OR MOBILE APP DO NOT CONTAIN
OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. NO
DOCTOR-PATIENT RELATIONSHIP IS CREATED. USE OF THE SERVICES IS NOT FOR MEDICAL
EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, PLEASE CONSULT YOUR
GENERAL PRACTITIONER. a. No Doctor-Patient Relationship. Any
and all services provided by, in and/or through the Services are for
informational purposes only. Fordyce Fusion is not a medical professional, and Fordyce
Fusion does not provide medical services or render medical advice. Nothing
contained in the Services should be construed as such advice or diagnosis. The
information and reports generated by us should not be interpreted as a
substitute for physician consultation, evaluation, or treatment, and the
information made available on or through the Services should not be relied upon
when making medical decisions, or to diagnose or treat a medical or health
condition. YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT
RELATIONSHIP BETWEEN YOU AND ANY OF THE FORDYCE FUSION PARTIES (INCLUDING,
WITHOUT LIMITATION, DIETICIANS) OR ANY OF FORDYCE FUSION SERVICE USERS). You
are urged and advised to seek the advice of a physician or a medical
professional with any questions you may have regarding your health before
beginning any weight loss effort regimen, physical activities or any other
plans that may be referenced, discussed or offered under the Services. If you
are being treated for an illness, taking prescription medication or following a
therapeutic diet to treat a disease, it is especially urged to consult with
your physician before using the Services. You represent to us (which
representation shall be deemed to be made each time you use the Services), that
you are not using the Services or participating in any of the activities
offered by the Services for purpose of seeking medical attention. You further
agree that, before using the services, you shall consult your physician,
particularly if you are at risk for problems resulting from exercise or changes
in your diet. If any information you receive or obtain from using the Services
that is inconsistent with the medical advice from your physician, you should
follow the advice of your physician. b. Virtual Coaching Service Disclaimer. As
an Fordyce Fusion member, you may, from time to time,
have access to personal coaching services (“Virtual Coaching Service”). If you
have access to our Virtual Coaching Service, you will be able to interact with
a Coach. A Coach will assist his/her users in developing skills to help them
achieve their health related goals. Fordyce Fusion
may, at its sole discretion, engage or replace any Coach with another without
notice to the Virtual Coaching Service users. The services provided by our
Virtual Coaching Service are not medical, mental health or any other type of
health service. Virtual Coaching Service is not psychotherapy or mental health
counselling. No diagnosis or treatment of, or advice regarding, any medical or
mental health condition or illness will be offered. The Virtual Coaching
Service cannot substitute for, and is not an alternative to, medical,
psychiatric, psychological, psychotherapy or other healthcare diagnosis and
treatment when a medical or mental health condition or illness is present. You
are advised to seek diagnosis, treatment and advice regarding medical or mental
conditions or illnesses from physicians practicing medicine, psychotherapists,
psychologists and other licensed healthcare and mental health professionals. Fordyce
Fusion Groups led by a Coach(es) are designed to provide individuals with
education, information and personal support from peers and the group leader
regarding your health-related issues and goals. Under no circumstances will any
of your interactions with any Coach or any User of the Services be deemed or
construed to create a physician-patient relationship or a fiduciary duty of any
kind whatsoever. IF FORDYCE FUSION BECOMES AWARE OF OR SUSPECTS ANY MEDICAL OR
MENTAL CONDITIONS OR ILLNESS, FORDYCE FUSION MAY, AT ITS SOLE DISCRETION,
TERMINATE ALL OR ANY PORTION OF THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR
YOUR INTERACTIONS WITH COACHES AND/OR OTHER MEMBERS WHEN USING THE SERVICES.
15. RISK ASSUMPTION: YOUR INTERACTIONS
WITH OTHERS ON THE WEBSITES AND/OR MOBILE APPS
FORDYCE FUSION EXPRESSLY DISCLAIMS ANY AND ALL
LIABILITY THAT MAY ARISE FROM OR IN CONNECTION WITH YOUR USE OF THE SERVICES
AND PARTICIPATION IN ANY OTHER ACTIVITIES OFFERED IN THE SERVICES, INCLUDING,
WITHOUT LIMITATION, YOUR PARTICIPATION IN ANY FORDYCE FUSION GROUP OR YOUR
INTERACTIONS WITH ANY FACILITATOR OR COACHES. YOU KNOWINGLY AND FREELY ASSUME
ALL RISK WHEN USING THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR YOUR
INTERACTIONS WITH OTHER MEMBERS. YOU ACKNOWLEDGE AND UNDERSTAND THAT FORDYCE
FUSION IS NOT OBLIGATED IN ANY WAY TO (A) SCREEN ITS MEMBERS, (B) INQUIRE INTO
THE BACKGROUNDS OF ITS MEMBERS, OR (C) REVIEW OR VERIFY THE STATEMENTS OF ITS
MEMBERS, INCLUDING WITHOUT LIMITATION INFORMATION OR REPRESENTATIONS CONTAINED
IN PUBLIC PROFILES. YOU HEREBY AGREE TO EXERCISE REASONABLE PRECAUTION IN ALL
INTERACTIONS WITH OTHER MEMBERS, PARTICULARLY IF YOU DECIDE TO MEET ANOTHER
MEMBER IN PERSON. FORDYCE FUSION DOES NOT REPRESENT, WARRANT, ENDORSE OR
GUARANTEE THE CONDUCT OF ITS MEMBERS OR THEIR COMPATIBILITY WITH YOU.
16. DISCLAIMERS OF WARRANTIES
FORDYCE FUSION L, ON BEHALF OF ITSELF AND ITS
AFFILIATES AND ANY OF ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS,
LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE PRODUCTS,
OFFERINGS, CONTENT AND MATERIALS PROVIDED IN THE SERVICES ARE PROVIDED “AS IS”
AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST
EXTENT PERMITTED BY LAW, FORDYCE FUSION, ON BEHALF OF ITSELF, AND ITS
AFFILIATES AND ANY OF ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS,
LICENSORS AND SUPPLIERS, DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR
NON-INFRINGEMENT. NEITHER FORDYCE FUSION, ANY OF ITS AFFILIATES, NOR ANY OF ITS
OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS
WARRANT THAT THE APPLICATIONS OR ANY FUNCTION CONTAINED IN THE APPLICATIONS
WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT
THE APPLICATIONS OR THE SERVERS THAT MAKE THE APPLICATIONS AVAILABLE ARE FREE
OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY PRODUCT, OFFERING, CONTENT AND
MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS
DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
YOUR COMPUTER SYSTEM OR DEVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD
OF ANY SUCH PRODUCT, OFFERING, CONTENT OR MATERIAL. NEITHER FORDYCE FUSION, ANY
OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES,
BUSINESS CUSTOMERS, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY
REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS,
OFFERINGS, CONTENT AND MATERIALS IN THE SERVICES IN TERMS OF THEIR CORRECTNESS,
ACCURACY, RELIABILITY, OR OTHERWISE. NO ADVICE OR INFORMATION, OBTAINED BY YOU
FROM OUR PERSONNEL OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT
EXPRESSLY PROVIDED FOR IN THESE TERMS & CONDITIONS.
17. THIRD-PARTY PRODUCTS, SERVICES AND
DATA COLLECTION
Certain features, aspects, software products and
services offered through the Services are provided, in whole or in part, by
third parties (“Third-Party Services” as provided by “Third-Party Service
Providers”). In order to use Third-Party Services, you may be required to enter
into additional terms and conditions with Third-Party Service Providers. Our
Terms & Conditions apply only to the Services, and not to the apps of any
other person or entity, and your right to use such Third Party Software as part
of the Services is subject to and governed by the terms and conditions of the
third party license applicable to such Third-Party Services. You acknowledge
and agree that we are not responsible for the availability of such external
sites or resources, and do not endorse (and are not responsible or liable for)
any content, advertising, products or other materials on or available from such
apps or resources. In the event of a conflict between the terms of these Terms
& Conditions and the terms of such third party licenses, the terms of the
third party licenses shall control with regard to your use of the relevant
Third Party Service. You further acknowledge and agree that a Third-Party
Service Provider may collect and use certain information about you, which may
include your personal information and (“Protected Health Information”). Any
exchange of data, including Protected Health Information, or other interaction
between you and a provider of a Third Party Services is solely between you and
Third-Party Service Provider. Prior to providing information to any Third-Party
Service Provider, you should review their privacy policy. If you do not
understand or do not agree to the terms of a Third-Party Service Provider’s
privacy policy, you should not use the related third-party services. FORDYCE
FUSION DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR
ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM
(I) YOUR USE OF OR RELIANCE ON, ANY CONTENT, ADVERTISEMENTS, PRODUCTS OR OTHER
RESOURCES AVAILABLE ON ANY SUCH SERVICES OR RESOURCES (REGARDLESS OF WHETHER WE
DIRECTLY OR INDIRECTLY LINK TO SUCH CONTENT, ADVERTISEMENTS, PRODUCTS OR OTHER
RESOURCES) OR (II) YOUR INFORMATION COLLECTED OR USED BY THIRD-PARTY SERVICE
PROVIDERS.
18. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT
SHALL FORDYCE FUSION, ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE
THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES
FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR
RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) THE USE
OF ANY CONTENT OR OTHER MATERIAL ON THE WEBSITE, OUR APPLICATIONS OR
APPLICATIONS LINKED TO OUR APPLICATIONS, (C) THE COST OF PROCUREMENT OF
SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR
SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED
INTO THROUGH OR FROM THE SERVICES; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF
YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR
SERVICES; OR (F) ANY OTHER MATTER RELATING TO THE SERVICES. YOU, ON BEHALF OF
YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY
AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY FORDYCE
FUSION AND FORDYCE FUSION, ITS AFFILIATES AND ANY OF FORDYCE FUSION’S AND ITS
AFFILIATES’ OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AFFILIATES,
REPRESENTATIVES, SUBLICENSEES, SUCCESSORS AND ASSIGNS FROM ANY AND ALL CLAIMS,
ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL
DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD
PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES. YOU UNDERSTAND AND
AGREE THAT THE CANCELLATION OR TERMINATION OF YOUR SUBSCRIPTION IS YOUR SOLE
RIGHT AND REMEDY WITH RESPECT TO ANY DISPUTE WITH US INCLUDING, WITHOUT
LIMITATION, ANY DISPUTE RELATED TO, OR ARISING OUT OF: (I) THESE TERMS &
CONDITIONS OR OUR ENFORCEMENT OR APPLICATION THEREOF; (II) ANY PRACTICE OR
POLICY OF FORDYCE FUSION INCLUDING THESE TERMS & CONDITIONS AND OUR PRIVACY
POLICY, OR OUR ENFORCEMENT OR APPLICATION OF THESE POLICIES; (III) THE CONTENT
AVAILABLE THROUGH THE WEBSITE AND/OR APPLICATIONS OR ANY CHANGE IN CONTENT
PROVIDED THROUGH THE WEBSITE AND/OR APPLICATIONS THROUGH THE SERVICES; (IV)
YOUR ABILITY TO ACCESS AND/OR USE OUR WEBSITE AND/OR APPLICATIONS; OR (V) THE
AMOUNT OR TYPES OF OUR FEES OR CHARGES, SURCHARGES, APPLICABLE TAXES, OR
BILLING METHODS, OR ANY CHANGE TO OUR FEES OR CHARGES, APPLICABLE TAXES, OR
BILLING METHODS. THE MAXIMUM LIABILITY OF FORDYCE FUSION AND ITS AFFILIATES AND
ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS
TO YOU UNDER ALL CIRCUMSTANCES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION
(WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR
OTHERWISE) SHALL NOT EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OUR
SERVICES. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE
INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. YOU AGREE
THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK
AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN FORDYCE FUSION
AND YOU. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. ANY CAUSE
OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES, OR THESE TERMS
& CONDITIONS MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF
ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO
THE LIMITATIONS SET FORTH IN THESE TERMS & CONDITIONS.
19. INTELLECTUAL PROPERTY
a. Software. You acknowledge and agree that the
Services and all intellectual property rights associated therewith are, and
shall remain, the property of Fordyce Fusion (and, where applicable, its
licensors). Furthermore, you acknowledge and agree that the source and object
code of the Website and/or Mobile App and the format, directories, queries,
algorithms, structure and organization of the Website and/or Mobile App are the
intellectual property and proprietary and confidential information of Fordyce
Fusion and its affiliates, licensors and suppliers. Except as expressly stated
in these Terms & Conditions, you are not granted any intellectual property
rights in or to the Services by implication, estoppel or other legal theory,
and all rights in and to the Services not expressly granted in these Terms
& Conditions are hereby reserved and retained by Fordyce Fusion. b.
Trademarks. Fordyce Fusion and the Fordyce Fusion logo (collectively, the “Fordyce
Fusion Marks”) are trademarks or registered trademarks of Fordyce Fusion and/or
Fordyce Fusion. Other trademarks, service marks, graphics, logos and domain
names appearing on the Website, Mobile App or in other Content provided to you
may be the trademarks of third-parties. Neither your
use of the Services, nor these Terms & Conditions, grant you any right,
title or interest in or to, or any license to reproduce or otherwise use, the Fordyce
Fusion Marks or any third-party trademarks, service marks, graphics, logos or
domain names. You agree that any goodwill in the Fordyce Fusion Marks generated
as a result of your use of the Services will inure to the benefit of Fordyce
Fusion, and you agree to assign, and hereby do assign, all such goodwill to Fordyce
Fusion. You shall not, at any time, nor shall you assist others to, challenge Fordyce
Fusion’s right, title, or interest in or to, or the validity of, the Fordyce
Fusion Marks. c. Copyrighted Materials; Copyright
Notice. All content and other materials available through the Services,
including without limitation the Fordyce Fusion logo, design, text, graphics,
and other files, and the selection, arrangement and organization thereof, are
either owned by Fordyce Fusion or are the property of Fordyce Fusion’s
licensors and suppliers. Except as explicitly provided, neither your use of the
Services nor these Terms & Conditions grant you any right, title or
interest in or to any such content or materials. d. Copyright Complaints. We
respect the intellectual property of others, and we ask our users to do the
same. We may, in appropriate circumstances and in our discretion, terminate the
rights of any user to use our Services (or any part thereof) who infringes the
intellectual property rights of others. If you have evidence, know, or have a
good faith belief that your work has been copied in a way that constitutes
copyright infringement or are aware of someone doing so, please contact us and
include the following information: (i) a physical or
electronic signature of the owner of the copyright or a person authorized to
act on behalf of the owner; (ii) identification of the copyrighted work claimed
to have been infringed (or if multiple copyrighted works located on the Website
and/or Mobile App are covered by a single notification, a representative list
of such works); (iii) identification of the material that is claimed to be
infringing or the subject of infringing activity, and information reasonably
sufficient to allow us to locate the material on our Website and/or Mobile App;
(iv) your name, mailing address, telephone number and email address; (v) a
statement by you that you have a good faith belief that use of the material in
the manner complained of is not authorized by the copyright owner, its agent or
the law; and (vi) a statement by you that the information in your notification
is accurate, and that you attest under penalty of perjury, that you are the
copyright owner or that you are authorized to act on the copyright owner’s
behalf.
20. INDEMNIFICATION
Without limiting any indemnification provisions of
these Terms & Conditions, you agree to indemnify, hold harmless and, at our
option, defend Fordyce Fusion and our affiliates, and our and their respective
officers, directors, members, employees, stockholders, managers, agents and
representatives (collectively, “Fordyce Fusion Indemnified Parties”) from any
and all third party claims, actions, demands, causes of action, liability,
damages and/or costs (including, but not limited to, reasonable attorneys’ fees
and expenses) (collectively, “Claims”) arising from (i)
your improper use of the Services or our products or offerings, (ii) your
violation of these Terms & Conditions, (iii) your provision to Fordyce
Fusion or any of the Indemnified Parties of information or other data, (iv)
your infringement or alleged infringement, or the infringement or use (or
alleged infringement or alleged use) by any other user of your account, of any
intellectual property or other right of any person or entity, or (v) your
violation or alleged violation of any foreign or domestic, federal, state or
local law or regulation. The Indemnified Parties will have the right, but not
the obligation, to participate through counsel of their choice in any defence
by you of any Claim as to which you are required to defend, indemnify or hold
harmless the Indemnified Parties. You may not settle any Claim without the
prior written consent of the concerned Indemnified Parties.
21. TERM AND TERMINATION
a. Termination. These Terms & Conditions will
remain in full force and effect while you use our Services (including our
Website and Mobile Apps). We may terminate your use of, or access to, the
Service in accordance with these Terms & Conditions. b. Effect of
Termination; Survival. Termination of these Terms & Conditions
automatically terminates all rights and licenses granted to you under these
Terms & Conditions, including all rights to use the Services, except that
all terms that by their nature may survive termination shall be deemed to
survive such termination (including, without limitation, intellectual property,
disclaimers, limitations of liability, User Content license, governing law and
venue). Subsequent to termination, Fordyce Fusion
reserves the right to exercise whatever means it deems necessary to prevent
your unauthorized use of the Services, including without limitation
technological barriers such as IP blocking and direct contact with your
Internet Service Provider. c. Legal Action. If we, in our sole discretion, take
legal action against you in connection with any actual or suspected breach of
these Terms & Conditions, we will be entitled to recover from you as part
of such legal action, and you agree to pay, our reasonable costs and attorneys’
fees incurred as a result of such legal action. The Fordyce Fusion Parties will
have no legal obligation or other liability to you or to any third party
arising out of or relating to any termination of these Terms & Conditions.
22. MISCELLANEOUS TERMS
If
any provision of these terms shall be found by a court of competent
jurisdiction to be unlawful, invalid, void or voidable, or for any reason
unenforceable, then that provision shall be deemed severable from these terms
and shall not affect the validity and enforceability of any remaining
provisions. These Terms & Conditions are the entire agreement between you
and us relating to the subject matter herein. We may assign our rights and
obligations under these Terms & Conditions. These Terms & Conditions will
inure to the benefit of our successors, assigns and licensees. The failure of
either party to insist upon or enforce the strict performance of the other
party with respect to any provision of these Terms & Conditions, or to
exercise any right under the Terms & Conditions, will not be construed as a
waiver or relinquishment to any extent of such party’s right to assert or rely
upon any such provision or right in that or any other instance; rather, the
same will be and remain in full force and effect.