This End-User License Agreement (this “Agreement”) is a legal agreement between you(“you” or “your”), and Secured Investment Corp. dba SendFuse (the “Owner”). This Agreement governs your use of the SendFuse software application (the “Application”), the website located at http://getsendfuse.com (the “Site”), and your use of any other applications, widgets, tools, features, content (including without limitation text messages, videos, and images), services and options available through the Site or Application or otherwise provided by Owner in connection with the Site or Application (collectively with the Site and Application, the “Software”).
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED BELOW IN SECTION 13.
The Software is owned solely by the Owner and the Owner’s licensors. The Software is licensed, not sold. The Software is protected by United States and international copyright laws and treaties, as well as other intellectual property laws and treaties. The Software is intended for business purpose use and is not intended for consumer purposes (personal, family or household use).
SECTION 1. LICENSE AND ACCOUNTS
Subject to the terms of this Agreement and the payment of the applicable license and subscription fee, the Owner hereby grants you a limited, nonexclusive, personal, and nontransferable license for use of the Software (in object code form only) by a single person on a single telephone and on one computer at a time, such as a workstation, terminal, or other device. One license is required for each individual user, but you may be given the option to add additional authorized users to utilize the “Bird Dog” feature. Each authorized “Bird Dog” will be required to read and accept this Agreement. When using the Software you will be required to create an account. You agree that you shall take all steps necessary to protect your log in details and keep them secret. Owner will be entitled to assume that anyone logging into your account using your log in details is you. If you fail to keep your login details secret, or if you share your login details or account with someone else (whether intentionally or unintentionally), you accept full responsibility for the consequences of this (including any unauthorized purchases) and agree to fully compensate Owner for any losses or harm that may result. You agree to immediately notify Owner of any unauthorized use of the Software, an account, email and/or password by contacting Owner’s Customer Support at 800-341-9918 or by sending Owner an email at firstname.lastname@example.org.
SECTION 2. CONFIDENTIALITY; SCOPE AND LIMITATIONS OF USE
2.1 The Software constitutes trade secrets and confidential information of the Owner and its licensors. The foregoing license is for business purposes only and ends on the termination of this Agreement.
2.2 In order to purchase a license to use the Software you must restrict your use of the Software to within the fifty states of the United States of America, the District of Columbia, and certain US territories and have reached the age of 18, or the age of legal majority in your state or territory of residence.
2.3 You may not under any circumstances:
(a) Copy the Software;
(b) Sublicense, rent, lease, lend, distribute, modify, adapt, translate, reverse engineer, decompile, disassemble, or prepare derivative works based on the Software;
(c) Use or allow use of the Software after the termination or expiration of this Agreement (except pursuant to another valid license);
(d) Allow others to use, copy, or access the Software in connection with a service bureau, application service provider, public computer bulletin board, shareware or timeshare process, or any similar business or service;
(e) Access, attempt to access, decrypt, use, or disclose the Software source code;
(f) Remove or alter any copyright or other proprietary rights notices included in or affixed to the Software;
(g) Publish or disclose the results of any benchmark tests relating to the Software; or
(h) Use the Software in applications or systems when failure of the Software to perform could reasonably be expected to result in serious physical injury, loss of life, or material damage to property;
(i) Use the Software in a manner that violates the Telemarketing Sales Rule or other applicable consumer protection law;
(j) Use the Software to execute any documents or instruments, or to make any offers or proposals that you intend to be legally binding, the functionality of the Software might not be technically adequate to support legally binding contracts;
(k) Use the Software for a consumer purpose (personal, family or household use).
(l) Purchase a license to use or use the Software if you have not reached the age of 18, or the age of legal majority in your state or territory of residence;
(m) Use the Software outside of the fifty states of the United States of America, the District of Columbia, and certain US territories.
2.4 Access to the Software is provided to users who agree to pay applicable subscription fees. Owner is not a licensed real estate agent, a registered broker-dealer, or a licensed investment adviser, and Owner does not provide any kind of advice, including but not limited to tax advice, legal advice, accounting advice, or investment advice.
2.5 You are solely responsible for the internet connection and/or mobile charges that you may incur for accessing and/or using the Software.
SECTION 3. CONSENT TO ELECTRONIC COMMUNICATIONS
SECTION 4. PAYMENT FOR SERVICE AND BILLING
To access the Software, you must pay the initial license fee, create an account and provide a current and valid method of payment, such as a credit card or debit card (a “Payment Method”). By creating an account, you agree to pay a subscription fee and any applicable taxes and service fees on a designated cycle for the Software (“Subscription Fee”). The first Subscription Fee will be charged to your Payment Method on the date Owner confirms your account details. Thereafter, the Subscription Fee will be charged to your Payment Method on a recurring basis in accordance with your designated cycle. Owner reserves the right to change the price for a Subscription Fee to the Software in its sole discretion and will be responsible for communicating any price changes to you in accordance with the law.
It is a condition of use of the Software that all the details you provide, including account details and Payment Method, will be correct, current, and complete and will not violate any law. If Owner believes the details are not correct, current or complete, or that you have otherwise violated this Agreement or any law, Owner has the right in its sole discretion to suspend, terminate or refuse you access to the Software, your account, and/or the Site and any of its resources. If at any time Owner is unable to charge your Payment Method for the Subscription Fee due to insufficient funds, expired or invalid account details, or otherwise, you remain responsible for the cost of such Subscription Fee.
Our Software may include virtual currencies such as FuseCoins. You agree that once purchased, FuseCoins have no monetary value and can never be exchanged for real money from Owner or anyone else. You agree that FuseCoins are not transferrable to anyone else. You acknowledge and agree that you are fully responsible for managing your FuseCoins and the amount you spend on services within the Software. You do not own FuseCoins but instead you purchase a limited personal revocable license to use them – any balance of FuseCoins does not reflect any stored value. Owner may revise the pricing for FuseCoins and services offered through the Software at any time, but if you have an active account, such changes will only take effect following the end of the then-current subscription period.
You can cancel the Subscription Fee at any time. Please note that you must cancel your Subscription Fee before it renews for a subsequent month in order to avoid being charged for the next month’s Subscription Fee. If you cancel your Subscription Fee, the cancellation will become effective at the end of the then-current monthly subscription period.
Given the nature of digital content, we do not offer a refund or credit on a purchase of the license to use the Software unless it is legally required. REFUNDS WILL NOT BE PROVIDED FOR ANY SUBSCRIPTION. WE DO NOT PROVIDE CREDIT, REFUNDS, OR PRORATED BILLING FOR SUBSCRIPTIONS THAT ARE CANCELLED MID-MONTH. In such a circumstance, you will continue to have access to the Software until the end of the monthly billing cycle. Owner reserves the right to offer refunds, discounts or other consideration in select circumstances at its sole discretion. Please note that each circumstance is unique and election to make such an offer in one instance does not create the obligation to do so in another.
SECTION 5. OWNERSHIP
All right, title, and interest in the Software, including any updates or revisions to the Software, is and will remain the sole and exclusive property of the Owner, its licensors, and their successors and assigns. Other than the limited license explicitly set forth in this Agreement, no interest in or rights or licenses to the Software are granted to you, and no interest in or rights or licenses to the Software will inure in or accrue to you, whether by implication, estoppel, or otherwise. All rights of any kind in the Software that are not expressly granted in this Agreement are entirely and exclusively reserved to and by the Owner, its licensors, and their successors and assigns.
SECTION 6. UPDATES; SUPPORT
There may be times when the Software or any part of it are not available for technical or maintenance related reasons, whether on a scheduled or unscheduled basis. The Owner is not obligated to provide any updates, revisions, new versions, bug fixes, maintenance, or support for the Software. Owner does not guarantee that any of our services will be available at all times or at any given time or that Owner will continue to offer all or any of its services for any particular length of time. Owner may change and update the Software without notice to you. Owner makes no warranty or representation regarding the availability of its Software and reserves the right to modify or discontinue the Software in its sole discretion without notice, including for example, ceasing a functionality or other service for economic reasons due to a limited number of users continuing to make use of that functionality or other service over time, for technical reasons (such as technical difficulties experienced by Owner or on the internet) or to allow Owner to improve user experience. NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT ANY OR ALL OF OWNER’S SOFTWARE MAY BE TERMINATED IN WHOLE OR IN PART AT OWNER’S SOLE DISCRETION WITHOUT NOTICE TO YOU. YOU ASSUME ANY AND ALL RISK OF LOSS ASSOCIATED WITH THE TERMINATION OF OWNER’S SOFTWARE.
SECTION 7. DISCLAIMER OF WARRANTIES
YOU AGREE THAT YOUR USE OF THE SOFTWARE AND ANY CONTENT, PRODUCTS, SERVICES, OR FEATURES MADE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE SHALL BE AT YOUR SOLE RISK AND UNLESS OTHERWISE EXPRESSLY STATED BY OWNER, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMITTED BY LAW, OWNER, ITS AFFILIATED ENTITIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SOFTWARE AND YOUR USE THEREOF, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COMPLIANCE WITH UNITED STATES FEDERAL AND STATE REAL ESTATE LAW, SECURITIES OR BLUE SKY LAWS OR REGULATIONS, SECURITIES EXCHANGE OR SELF-REGULATORY ORGANIZATION’S RULES OR REGULATIONS AND EQUIVALENT LAWS OR REGULATIONS IN FOREIGN JURISDICTIONS, CORRECTNESS, ACCURACY AND RELIABILITY.
OWNER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SOFTWARE OR ANY HYPERLINKED SERVICES AND OWNER WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION YOU PURSUE THROUGH THE USE OF THE SOFTWARE.
OWNER AND ITS AFFILIATES HAVE NO SPECIAL RELATIONSHIP WITH OR FIDUCIARY DUTY TO YOU AND WITHOUT LIMITING THE FOREGOING, MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE MERITS AND RISKS OF ANY TRANSACTION YOU PURSUE THROUGH THE USE OF THE SOFTWARE. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
SECTION 8. LIMITATION OF LIABILITY
THE MAXIMUM LIABILITY OF OWNER AND THE AFFILIATED ENTITIES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE WILL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO OWNER TO ACCESS AND USE THE SOFTWARE. IF YOU LIVE IN A JURISDICTION WHOSE LAWS PREVENT YOU FROM TAKING FULL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SOFWARE IN ACCORDANCE WITH THIS AGREEMENT, OWNER’S LIABILITY IS LIMITED TO THE GREATEST EXTENT ALLOWED BY THE LAW OF THAT JURISDICTION.
SECTION 9. TERMINATION
This Agreement will commence at the time you click the “ACCEPT” button and will continue until terminated. Owner may suspend or terminate your account and access to the Software for any reason or for no reason whatsoever, including if Owner reasonably determines that you are in violation of this Agreement or receives information. In such event, you must cease all use of the Software. The suspension or termination of your account and access to the Software is in addition to, and not in lieu of, any rights and remedies available to Owner, its partners and affiliates under this Agreement or under applicable laws.
Additionally, you may terminate your account at any time by following the cancellation process set forth in Section 4 above. Please note you shall still be responsible for all Subscription Fees incurred prior to the effective date of termination.
This Agreement is effective until terminated; however, your past and any future use of the Software shall be governed by the terms of this Agreement. Your rights under this Agreement will terminate automatically without notice from Owner if you fail to comply with any term(s) of this Agreement.
SECTION 10. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software and documentation are “Commercial Items,” as that term is defined at 48 CFR §2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as those terms are used in 48 CFR §12.212 or 48 CFR §227.7202, as applicable. Consistent with 48 CFR §12.212 or 48 CFR §§227.7202-1–227.7202-4, as applicable, the commercial computer software and commercial computer software documentation are licensed to U.S. government end users (a) only as commercial items and (b) with only the same rights as are granted to all other end users pursuant to the terms and conditions set forth in this Agreement. Unpublished rights are reserved under the copyright laws of the United States.
SECTION 11. CONSENT TO USE DATA
You agree that the Owner and its agents may collect and use technical and related information, including but not limited to technical information about your computer, system and application software, telephone, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Software and to verify compliance with the terms of this Agreement. You are solely responsible and liable for all data, information and other materials (“User Content”) that you submit, text message, upload, post, e-mail or otherwise transmit (“Transmit”) in connection with the Software. In addition, Owner has no control over, and shall have no liability for, any damages resulting from the use (including without limitation republication) or misuse by any third party of information made public through the Software. IF YOU CHOOSE TO SUBMIT TO OWNER, OR OTHERWISE MAKE ANY PERSONAL INFORMATION OR OTHER INFORMATION PUBLICLY AVAILABLE, YOU DO SO AT YOUR OWN RISK AND OWNER SHALL HAVE NO RESPONSIBILITY OR LIABILITY THEREFOR. You acknowledge and agree that Owner may disclose or use any User Content that you Transmit for purposes that include, but are not limited to: (a) enforcing this Agreement; (b) complying with any laws, regulations or rules of any federal, state or local government or agency; (c) responding to claims that any User Content violates the rights of third parties; or (d) protecting the rights or property of Owner, its customers or the public. With respect to User Content that you Transmit to or through the Software, you grant Owner a perpetual, worldwide, royalty-free, non-exclusive transferable, sub-licensable (through multiple tiers) license to use, copy, excerpt, reproduce, display, aggregate, de-identify, publish, modify, distribute and create derivative works of such User Content in any form or media, and to allow others to do so, however, Owner will only share personally identifiable information that you provide in accordance with Owner’s privacy statement at: https://securedinvestmentcorp.com/privacy-policy/
SECTION 12. INDEMNITY
You agree to indemnify and hold harmless Owner and its respective directors, officers, shareholders, parents, subsidiaries, affiliates, partners, agents, and licensors (collectively, the “Indemnified Parties”), from and against all losses, expenses, damages and costs, including reasonable attorney fees, resulting from your breach of any of the foregoing provisions, representations or warranties, and/or from your placement or transmission of any content onto the Software’s servers, and/or from any and all use of your account in violation of this Agreement or the failure to fulfill any obligations relating to your account incurred by you or any other person using your account. We reserve the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide us with such cooperation as is reasonably requested by us.
SECTION 13. DISPUTE RESOLUTION
If you have any concerns or queries regarding our Software, our customer support team can be reached by submitting a ticket to: email@example.com. Most concerns are quickly resolved in this manner to the customer’s satisfaction.
This Agreement will be governed by and construed in accordance with the laws of the state of Idaho, U.S.A., without regard to Idaho’s conflict-of-laws principles.
In the event an issue arises, Owner and you hereby agree to resolve those disputes through binding arbitration instead of in courts. Arbitration is more informal than a lawsuit in court. Arbitration uses neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you hereby waive any right to such proceedings.
Any dispute, claim or controversy arising out of or relating to the Software or your use of the Software, this Agreement, or this arbitration agreement, must be filed within one year of the relevant events. You waive – that is, give up- your right to pursue- any dispute, claim or controversy that is not filed within one year and any right you may have had to pursue that dispute, claim or controversy in any forum is permanently barred.
Except as set forth below, Owner and you agree that any dispute, claim or controversy arising out of or relating to the Software or your use of the Software, this Agreement and this arbitration agreement, shall be determined by binding arbitration instead of courts of general jurisdiction. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
• claims arising out of or relating to any aspect of the relationship between you and Owner, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
• claims that arose before this Agreement or any prior agreement;
• claims that may arise after the termination of this Agreement.
References in this arbitration agreement to “Owner,” include Owner’s respective subsidiaries, affiliates, agents, employees, predecessors in interest, licensees, licensors or providers of content, successors, and assigns, as well as all authorized or unauthorized users of the Software under this or prior Agreements. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against Owner on your behalf. You agree that, by entering into this Agreement, you and Owner are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement. A party who intends to seek arbitration must first send to the other, by certified mail, return receipt requested, or by other mail delivery service that provides proof of delivery (e.g., FedEx), a written notice of dispute (“Notice”). The Notice to Owner should be addressed to: Attn: Legal, Secured Investment Corp., 701 E Front Ave, Fl 2, Coeur d’Alene ID 83814 (“Notice Address”). The Notice must:
(i) describe the nature and basis of the claim or dispute; and
(ii) set forth the specific relief sought (“Demand”). If Owner and you do not reach an agreement to resolve the claim within 60 days after the Notice is received, you or Owner may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Owner or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Owner is entitled.
If your claim is for less than $75,000, upon written request to the Notice Address prior to commencement of the arbitration, Owner will advance the arbitration filing fee and arbitrator’s costs by direct payment to the appropriate entity. If the arbitration proceeding is decided in Owner’s favor, you shall reimburse Owner for the fees and costs advanced to the extent available in a judicial proceeding. If the arbitration is decided in your favor – which occurs if there is an award to you that is greater than the value of Owner’s last written settlement offer made before an arbitrator was selected – you will not be required to reimburse Owner for any of the fees and costs advanced. The arbitration will be governed by the Commercial Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement, including Disclaimer of Warranties and Limitation of Liability. The arbitrator shall have the right to award money damages and other appropriate relief, consistent with the terms of this agreement; HOWEVER THE ARBITRATOR SHALL NOT HAVE THE RIGHT TO AWARD INJUNCTIVE RELIEF AGAINST EITHER PARTY OR TO CERTIFY A CLASS ACTION OF ANY KIND. All issues are for the arbitrator to decide. Unless Owner and you agree otherwise, any arbitration hearings will take place either (i) in person in the county (or parish) of the billing address associated with your account or in Coeur d’Alene, Idaho, at your option, or (ii) by video conference during which you shall be able to appear from the county (or parish) of the billing address associated with your account, or any other location of your choosing which has appropriate video conference facilities available. If your claim is for $10,000 or less, there shall be no in person hearing; and you and Owner agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by video conference as established by the AAA Rules. If your claim exceeds $10,000, the right to and format of a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Each party shall be responsible for their own attorneys’ fees. Although under some laws Owner may have a right to an award of attorneys’ fees and expenses if it prevails in an arbitration, Owner agrees that it will seek such an award only in the event that the substance of your claim or the relief sought has been deemed by the arbitrator to be frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
YOU AND OWNER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Owner agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the foregoing, disputes enforcing, protecting, or concerning the validity of any of your or Owner’s intellectual property rights (or the intellectual property rights of any of Owner’s licensors) are not covered by this agreement to arbitrate contained in Section 13 If the waiver of the right to participate in a class action set forth above is found to be illegal or unenforceable for any reason whether by judicial, legislative, or other action, than the entirety of the agreement to arbitrate contained in Section 13 is null and void. In that instance, you and Owner agree to waive your right to a jury trial. You and Owner further agree that any dispute, claim or controversy arising out of or relating to the Software or your use of the Software, or this Agreement shall be brought in the appropriate state or federal court located in Kootenai County, Idaho; and that you and Owner both irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Kootenai County, Idaho.
SECTION 14. GENERAL
14.1 Waiver. No waiver of any violation or nonperformance of this Agreement in one instance will be deemed to be a waiver of any subsequent violation or nonperformance. All waivers must be in writing.
14.2 Severability. If any term or provision of this Agreement is to any extent held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each term and provision of this Agreement will be valid and enforced to the fullest extent permitted by law.
14.3 Entire Agreement. This is the entire agreement between the parties with respect to the subject matter of this Agreement. It supersedes all prior or contemporaneous agreements, understandings, or representations with respect to the Software. This Agreement may not be modified or amended except in a writing signed by both parties. Any preprinted terms on your purchase order are expressly rejected by the Owner and will be given no force or effect.