1. FUSEAPP, LLC (FUSEAPP) SERVICES AGREEMENT
READ THIS FUSEAPP SERVICES AGREEMENT CAREFULLY PRIOR TO PURCHASING SERVICES. THIS AGREEMENT IS LEGALLY BINDING BETWEEN FUSEAPP AND USERS OF FUSEAPP SERVICES (REFERRED TO HEREIN AS “CUSTOMER”).
This services agreement (“Agreement”) is between FuseApp and Customer. FuseApp offers cloud server, storage, connectivity and other cloud related products and offerings (“Services”) and Customer seeks to utilize these Services for its own purposes. Customer certifies that he or she is at least 18 years of age. The Agreement also includes and consists of each of the following:
FuseApp Acceptable Use Policy
Services will include items listed as part of the FuseApp order generated by Customer during the online signup process and any other ordering records maintained by FuseApp. Additional items may include custom and professional services provided by FuseApp’s staff that Customer acquires online through FuseApp.
3. THIRD PARTY PRODUCTS AND SERVICES
Customer will acquire third party products and services directly from the third party provider. FuseApp is not responsible or liable for third party products and services and FuseApp provides no warranty or indemnity related to third party products and services.
4. PAYMENT TERMS AND TAXES
Customer will pay for Services on a pay-as-you-go model. Payment is due one month after signup data, and continues until customer suspends their service.
Customer may manage, expand or upgrade its Services through the FuseApp cloud portal found at https://cloud.FuseApp.com/. Charges for Services will go into effect upon deployment of servers.
Customers may cancel all Services through the FuseApp cloud portal, and by submitting a support ticket for any other services not managed through the cloud portal. Customers will be responsible for the payment of the fees for Services provided.
Monthly fees for Services may be revised from time to time. Customer will pay fees required according to FuseApp’s standard pricing policies. Monthly fees for Services provided are non-refundable and no credit will entitle Customer to a refund. SLA credits issued by FuseApp may be applied to future months’ invoices.
Customer will notify FuseApp of any billing dispute within 30 days of the date on the invoice in question, or waive such dispute. Interest for late payments will accrue at a rate of 1% per month from the date due until paid.
Customer will maintain and update a valid credit card on file through the customer portal at all times. FuseApp may charge such card for Service fees or other fees on the first business day prior to any payment due-date. If any charge attempt is denied, FuseApp may interrupt Services without advanced notice but will make reasonable efforts to provide such notice.
Customer is responsible for any taxes or charges on its sales.
5. MAINTENANCE AND SECURITY
FuseApp may interrupt Services to perform maintenance on FuseApp equipment or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties. FuseApp will exercise reasonable efforts to inform Customer before interrupting Services and to repair Services promptly.
Customer is responsible for maintaining security and for maintaining patches and disaster recovery systems, except to the extent FuseApp specifically accepts such responsibility by listing such features as part of the Services purchased at customer signup. Whether or not Customer’s Signup calls on FuseApp to maintain back-ups, Customer will keep a back-up copy of all data hosted by FuseApp. Customer will promptly report any failure in Services to FuseApp via the online ticketing system in the customer portal. FuseApp is not responsible for providing physical access to or copies of software, data, or content stored on FuseApp’s equipment under any circumstances and is not required to provide network access after any termination or suspension of Customer’s Service or in the event of hardware failure, abuse by hackers or other third parties, improper administration by Customer, or other interruption of network access.
FuseApp is not required to reimburse any expenses Customer incurs for technology diagnosis or repair, including without limitation expenses for outside consultants.
6. SERVICE LEVEL AGREEMENT
FuseApp provides a Service Level Agreement (SLA) to guarantee the performance and availability of Services.
6.1 Normal Operational Times
Non-compliance can only occur during normal operational times as agreed upon between FuseApp and the Customer. In addition, the following items are excluded from normal operational times: • Issues arising from the use of Services by the Customer, its employees, or agents, in ways not agreed upon in this Agreement. • Scheduled maintenance times.
6.2 Uptime Guarantee
FuseApp strives for 100% availability. FuseApp achieves this level of compliance through hardware, networking and software redundancies and proactive monitoring of Services. FuseApp guarantees minimum Services availability of 99.99% on a 24x7x365 basis excepting scheduled maintenance. Availability will be calculated monthly using the following formula. Actual Minutes of Services Availability during the month / Total Minutes of Services Availability during the month x 100 shall equal the Percent of Availability.
Should monthly Services availability fall below the agreed to 99.99% for any month, FuseApp shall credit the customer the equivalent of one (1) day of the monthly contract amount for each 1%, or part thereof, of the 99.99% target not met due to inaccessible Services. This SLA is applicable only to items within FuseApp’s assumed control and to outages outside scheduled maintenance windows.
7. CONTENT AND LIABILITY
Customer will be responsible for all content on Services. FuseApp will make no effort to validate this information for correctness or usability.
In the event that content is not “server-ready”, FuseApp may at its option reject this content, notify the Customer and provide Customer the opportunity to amend or modify the content to satisfy the requirements of FuseApp.
If the Customer fails to modify the content within a reasonable period of time, which shall be determined between the parties themselves, the Agreement will be terminated.
FuseApp will not be responsible for any damages that may be suffered by the Customer, including loss of data resulting from delays, non-deliveries or service interruption by any cause, errors or omissions of the Customer. FuseApp expressly limits its liability to the Customer for any non-accessibility time or other down time to the credits outlined in the Service Level and Remedies section of this Agreement.
8. WARRANTY AND DISCLAIMERS
FuseApp represents and warrants that FuseApp is free to enter into this Agreement and that FuseApp is under no disability, restriction, or prohibition that will interfere in any manner with FuseApp’s full compliance with and performance under this Agreement. FuseApp warrants that Services will be of good quality and to the reasonable satisfaction of Customer. FuseApp also warrants and represents that no Services provided to the Customer hereunder will infringe or violate any right of any person or firm and that Customer may exploit such Services provided hereunder without liability or obligation to any person or firm.
FuseApp does not warrant that the Services will be uninterrupted, error-free, or free from viruses or other harmful components. Services are provided with no warranties regarding security, reliability, protection from attacks, data integrity, or data availability (including without limitation data integrity or availability related to cloud storage features of the Services). Except to the extent specifically provided in the SLA, Services are provided on an “as is” and “as available” basis. No communication between Customer and FuseApp will create a warranty or in any way alter or restrict any disclaimer of warranty or limitation of liability set forth in this section or elsewhere in this Agreement. Communication, from the previous sentence, includes, without limitation, marketing materials and representations of salespeople, advice provided by FuseApp or any of its representatives, quotes, Customer’s Signup, and any work order or other ordering document.
9. LIMITATIONS OF LIABILITY
FuseApp will not be liable for any consequential, incidental, indirect, exemplary, punitive, or multiple damages, even if advised in advance of the possibility of such damages. FuseApp’s maximum liability arising out of or related to this agreement will not exceed the total amount of monthly fees paid by Customer during the two months preceding the incident giving rise to the claim.
Except to the extent specifically provided in Section 6 above, and except to the extent that applicable law specifically forbids such limitation of liability, FuseApp will have no liability whatsoever for any claims, losses, actions, damages, suits, or proceedings resulting from any of the following or from any FuseApp efforts to address or mitigate any of the following: (i) security breaches, including without limitation eavesdropping, third party access to customer data or to assigned computers, third party access to or misuse of passwords provided to FuseApp, and interception of traffic sent or received using the service; (ii) release or exposure, for any other reason, of personally identifiable information or other private data, including data belonging to customer’s own customers and other users; (iii) denial of service attacks, viruses, worms, and other intentional interference by third parties, including without limitation by other FuseApp customers; (iv) loss of data or loss of access to data; (v) actions of third parties, including without limitation other FuseApp customers and third party products and service providers; (vi) actions of FuseApp employees, agents, or contractors acting outside the scope of their duties; (vii) mistakes, omissions, interruptions, deletions of files, errors, defects, delays in operation, or other failures of performance of Services, including without limitation accidental disconnection and termination of Services; and (viii) the accuracy, completeness, and usefulness of the Services. The provisions of this section apply, without limitation, even, if customer purchases Services addressing security, data integrity, data backup, attack protection, viruses, spam, monitoring, or system integrity. FuseApp does not control and has not thoroughly reviewed all the websites linked to FuseApp’s website or run by FuseApp’s customers or by providers of third party products and services. With the exception of its own website, FuseApp is not responsible or liable for the content or practices of any website, including without limitation third party websites referenced in the preceding sentence.
The liabilities limited by this section 9 apply: (i) to liability for negligence; (ii) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (iii) even if FuseApp is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (iv) even if customer’s remedies fail of their essential purpose. FuseApp’s limitations and exclusions of liability and disclaimers of warranty, set forth in this Section 9 and elsewhere in this Agreement apply equally to FuseApp’s officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies. Customer acknowledges and agrees that FuseApp has set its prices and entered into this Agreement in reliance upon such limitations of liability, and that such limitations of liability form an essential basis of the bargain between FuseApp and Customer.
Customer will defend, indemnify, and hold harmless FuseApp (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from a claim by any of Customer’s customers or users, or any other third party, arising out of or related to Customer’s use of, misuse of, or failure to use the Services, including without limitation: (a) alleged Customer conduct that would breach this Agreement, including alleged infringement of intellectual property or privacy rights and other AUP violations; (b) security breaches or other alleged faults in the Service, including without limitation faults listed in the SLA and faults leading to the release or exposure of personally identifiable information or other private data (whether such data belongs to Customer, to one of Customer’s customers, or to other third parties); and (c) any action taken by FuseApp as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, judgments, settlements, and costs, including without limitation attorneys’ fees.
11. ACCEPTABLE USE
Customer agrees to adhere to FuseApp’s Acceptable Use Policy found at http://www.FuseApp.com.
This Agreement may be terminated by Customer or FuseApp, without cause, by giving the other party 30 days written notice. Customer or FuseApp may terminate Services under this Agreement at any time, without penalty, if either party fails to comply with the terms of this Agreement.
This Agreement will automatically renew for successive one (1) month periods.
Renewal prices are guaranteed for the first billing period of Services and thereafter subject to change. Customer may terminate this Agreement for material breach, effective on 30 days’ written or email notice specifying the nature of the breach, provided this Agreement will not terminate if FuseApp cures the breach within 10 business days. Customer may also terminate this Agreement for convenience. Customer will provide notice of any termination through the online Customer Portal. FuseApp is not required to refund any payments in the event of termination for convenience by Customer, except as specifically set forth in Section 6 above.
FuseApp may terminate Services or this Agreement for material breach, including without limitation any breach of the provisions of the AUP or of the payment obligations set forth in Section 4, without advanced notice. FuseApp is not required to refund any fees paid or prepaid after such termination. FuseApp may also terminate this Agreement for convenience at any time. FuseApp will provide 30 days’ advanced written notice of any termination for convenience. Upon termination for convenience, FuseApp will refund any amounts prepaid for Services not yet provided.
13. GENERAL PROVISIONS
13.1 Governing Law
The laws of the state of Utah shall govern this Agreement without giving effect to conflict or choice of law principles.
13.2 Force Majeure
Neither Customer nor FuseApp shall be deemed in breach of this Agreement for any failure to perform an obligation where such failure is caused by an Act of God; provided that Customer or FuseApp shall promptly notify the other party of the event and take all reasonable efforts to cure failure caused by the event.
Any waiver under this Agreement must be in writing and any waiver of one event shall not be construed as a waiver of subsequent events.
13.4 Attorneys’ Fees
In the event of any litigation or arbitration between Customer and FuseApp relating to this Agreement or the Services, the prevailing party shall be entitled to recover from the other party all reasonable attorneys’ fees and other reasonable costs incurred by the prevailing party in connection therewith.
13.5 Entire Agreement
This Agreement: (i) represents the entire agreement between Customer and FuseApp relating to the subject matter of this Agreement, (ii) supersedes all prior Customer orders, agreements, understandings, representations and warranties applicable to the subject matter of this Agreement, and (iii) may only be amended, canceled or rescinded by a writing signed by both parties. Any terms or conditions of any Customer order or other document submitted by Customer in connection with any Services, which are in addition to, different from or inconsistent with the terms and conditions of this Agreement are not binding on FuseApp and are ineffective.
13.6 Jurisdiction and Venue
The exclusive venue for any judicial action arising out of or relating to this Agreement shall be the state or federal courts located in Salt Lake City, Utah, and Customer and FuseApp hereby consent to the jurisdiction of said courts and waive any objection that venue in such courts is inconvenient.
13.7 Customer Name and Logo Usage
Customer grants FuseApp the right to list Customer’s name and logo on FuseApp’s website and to place a hyperlink on FuseApp’s website to Customer’s website and to provide Customer’s name to potential clients of FuseApp for the purpose of reference.
Revised – 05/02/2012