Consumer Fusion Software and Service Agreement

In consideration of your obligations under this Agreement, we grant you a limited, non-transferable, non-exclusive, revocable right and license for the term of this Agreement to obtain access to the Services for internal business purposes.

Subject to the terms and conditions of this Agreement, we will use commercially reasonable efforts to provide access to the Services twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. You agree that from time to time the Services may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades, service malfunctions, and causes beyond our control or which are not foreseeable by us, including but not limited to, the interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures.

You acknowledge that the Services may change from time to time and that we necessarily rely on various programs, products and services provided by independent third parties in order to offer our Services. Because these third parties may modify, suspend or cancel their programs, products and services at any time, the Services offered by us may be affected, including the termination of specific features, benefits and Services. No modification, suspension or cancellation by any third party that causes us to change or terminate specific features, benefits or Services shall release you from your obligation to pay for the Services or otherwise affect your obligations under this Agreement or the Services Agreement as defined within this agreement.

We will use commercially reasonable efforts to operate and maintain our web sites and systems and to ensure the security, confidentiality and integrity of all text, data, video and other information provided by you, your customers and clients, or otherwise related to your organization (“User Content”) transmitted through or stored on our system. You will bear full risk of loss or damage to all User Content. The Services and our systems are not an archive for any User Content.

a. Warranty Limitations. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. WE WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN ACCEPTABLE PERFORMANCE OF THE SERVICES. HOWEVER, WE PROVIDE NO WARRANTIES WHATSOEVER AND WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. WE DO NOT MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF ACCURACY, RELIABILITY OR OTHERWISE. YOU ASSUME SOLE RESPONSIBILITY FOR YOUR USE OF THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS. WE DO NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM OUR SYSTEM AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICE PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT YOUR AND/OR OUR CONNECTIONS TO THE INTERNET.

b. Liability Limitation. IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU, YOUR CUSTOMERS OR CLIENTS, OR ANY OTHER THIRD PARTY ARISING FROM OUR OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATE STATUTES MAY APPLY RESTRICTIONS REGARDING LIMITATIONS OF LIABILITY. OUR SOLE AND MAXIMUM LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS WHATSOEVER, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES WITHIN THE THREE (3) MONTHS IMMEDIATELY PRECEDING A CLAIM IN WHICH WE ARE LIABLE TO YOU FOR SUCH CLAIM.

c. Reliance on Limitations. YOU AND WE ACKNOWLEDGE THAT WE HAVE SET OUR PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT AND THAT THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF PORTIONS OF THIS AGREEMENT ARE FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.

You agree to pay for the Services as set forth in the separate Services Agreement between you and us, which agreement is incorporated herein by this reference (“Service Agreement”). You acknowledge that you have signed and received a copy of the Services Agreement and that it forms a part of this Agreement. Fees for the Services will be billed and charged to you. Any payment not received within thirty (30) days of the billing date will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If you are delinquent in your payments, we may, upon notice to you, require full payment for the remainder of the term and suspend the Services until payment in full is received; we also reserve the right to terminate this Agreement for non-payment. All fees charged by us for Services are exclusive of taxes and similar fees now in force or enacted in the future imposed on the transaction, all of which you will be responsible for, except for taxes based on our net income.

Exclusive rights of the User Content, we will retain all rights, title and interest, including but not limited to, copyright and other proprietary or intellectual property rights relating to the Services and all legally protectable elements or derivative works thereto. We will not obtain any right, title or interest in the User Content. We may place copyright and/or proprietary notices, including hypertext links, within our website, system and software applications. You may not alter or remove such notices without our written permission. You will not, directly or indirectly, reverse engineer, decompile, modify, sublicense or otherwise attempt to derive source code, trade secrets or other intellectual property from us.

You are solely responsible for all acts, omissions and use under and charges incurred with your account or password. You agree not to engage in any conduct that is not in compliance, if applicable, with the privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA). You will indemnify us for any and all claims, damages, liabilities, costs and expenses, including attorneys’ fees and court costs, related to any breach of this Agreement by you.

You acknowledge that User Content may include protected and confidential customer or client information that is transmitted through or stored on our system. Applicable federal and state laws, as well as ethical and licensure requirements of your profession, may impose obligations with respect to client confidentiality that may limit your ability to use the Services or to transmit certain information to third parties. You represent and warrant that, at all times during and after the term of this Agreement, you will comply with all laws, rules and regulations directly or indirectly applicable to you or your organization that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of client information. Moreover, you will use your best efforts to cause all persons or entities under your direct or indirect direction or control to comply with such laws, rules and regulations. You are, at all times during and after the term of this Agreement, solely responsible for obtaining and maintaining or verifying that you and your organization have obtained and are maintaining all customer and client consents and all other legally necessary consents, authorizations, software licenses or other permissions required or advisable to process, access, retrieve, transmit, monitor, post, store, disclose and view any client information that is transmitted and stored on our system or any third-party web site or system. You agree that we, acting on your behalf as your agent, have the right to process, access, retrieve, transmit, monitor, store, disclose and view client information solely in connection with our providing the Services pursuant to this Agreement. We reserve the right to use and disclose to third parties information obtained while providing Services for purposes of complying with all applicable laws, rules and regulations. You will indemnify us for any and all claims, damages, liabilities, costs and expenses, including attorneys’ fees and court costs, related to any Services we provide or action we may take on your behalf as your agent to process, access, retrieve, transmit, monitor, post, store, disclose and view any customer and client information or other User Content pursuant to this Agreement.

The initial term for the Services and this Agreement shall be set forth in the Services Agreement. Upon the expiration of the Initial Term and each Renewal Term, the term of this Agreement will automatically be extended for additional, consecutive on (1) year periods unless either Party provides at least thirty (30) days advance written notice of non-renewal to the other party prior to the end of the then-current Initial Term or Renewal Term, as applicable. The “Term” means the Initial Term and any Renewal Terms, collectively.

a. Termination. We may terminate this Agreement at any time if you breach a material term or condition of this Agreement. Notwithstanding the foregoing, we may terminate this Agreement for any reason at the end of the Initial Term or any Renewal Term provided we notify you in writing at least thirty (30) days prior to the end of the then current term. You may terminate this Agreement at the expiration of the initial term or any renewal term if you notify us in writing at least thirty (30) days prior to the end of the term of your intention not to renew. You may also terminate this Agreement at any time if we breach a material term or condition of this Agreement and we fail to cure such breach within thirty (30) days following written notice thereof to us by you. Either party may terminate this Agreement if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors.

b. Effect of Termination. Upon the effective date of termination of this Agreement, we will cease providing access to the Services, you will cease using the Services, and all your outstanding payment obligations through the effective date of termination will immediately become due.

a. Assignment. You may not assign any of your rights, duties or obligations under this Agreement to any person or entity, in whole or in part, unless in the context of a professional practice transfer such as a sale or merger, and any attempt to do so shall be deemed void and/or a material breach of this Agreement (in which case this Agreement shall continue in full force and be binding on the transferee, and unless agreed to by us in writing).

b. Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder, shall constitute a waiver of such right or remedy or any other right or remedy, or future exercise thereof.

c. Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain in effect.

d. Applicable Law. This Agreement shall be governed in all respects by the laws of the State of California except for its conflict of laws provisions. The parties expressly agree that all disputes relating to the enforcement and/or interpretation of this Agreement shall be litigated before a court located in California.

e. Digital Signature Provisions. You represent and warrant that the individual electronically agreeing to the terms of this Agreement is authorized and empowered to agree to this Agreement on your behalf. You further agree that clicking the “AGREE” option constitutes an electronic signature as defined by the Electronic Signatures in Global and National Commerce Act and that this Agreement is completely valid, has legal effect, is enforceable and is binding on and non-refutable by you.

f. Entire Agreement. This Agreement, together with the Services Agreement incorporated by reference herein, constitutes the complete and exclusive statement of the agreement and mutual understanding between the parties with respect to the subject matter hereof, superseding all prior proposals, communications, and understandings, oral or written.