Terms & Conditions
Effective December 5, 2011
This Wireless Internet Access Service Agreement is between you and Fuzion Mobile, Inc. (“Fuzion Mobile, Inc.”) and is referred to as the “Terms of Service” or the “Agreement.” By purchasing or using Fuzion Mobile, Inc. wireless Internet access service (“Service”) provided through use of a wireless USB data modem or similar device provided by Fuzion Mobile, Inc.(“Equipment”) and any firmware or software used by Fuzion Mobile, Inc. to provide the Service, whether embedded in any Equipment, or used in connection with the Service (collectively "Software") you agree to be bound by and comply with the following Terms of Service: Agreement Governing Use of Service.
The current version of this Agreement can be found at www.fuzionmobile.com. Fuzion Mobile, Inc. reserves the right to revise, amend, or modify this Agreement or any other policy at any time by sending you an email notification to the email address associated with your account, or by posting any amendments or modifications at www.fuzionmobile.com. Amendments or modifications to this Agreement will become effective on the date we send them to you by email, or immediately upon posting to our website, whichever is earlier. Your continued use of the Service or Equipment will constitute your acceptance of any such amendments or modifications. This Agreement may not be otherwise amended except in a writing signed by you and the Company. If you do not wish to continue service after a change that is materially disadvantageous to you, you may terminate this Agreement by providing written notice to Fuzion Mobile, Inc. within fourteen (14) days of the effective date of the modification.
Service(s) may require third party software to be installed in order to function. Fuzion Mobile, Inc. shall not be liable for any use or installation of such software. Any third party software installed shall be governed by that third party end user license agreement. By accepting this Agreement, you agree to accept the terms of those third party end user license agreements. Service Term.
Your service is prepaid and provided to you on a month-to-month basis. If you purchased your service at a retail location, your service will expire thirty (30) days after activation. You can purchase another thirty (30) days of service at a retail location or by making a payment at www.fuzionmobile.com. If you subscribed to the Service via a web purchase, you will be automatically billed thirty (30) days from the date your equipment is shipped and every thirty (30) days thereafter, using the credit card associated with your online account. If you purchased your Fuzion Mobile Broadband Plan at a retail location and registered to make online payments, your account will automatically be billed every thirty (30) days using the credit card associated with your online account. If you wish to suspend automatic billing, you must notify Fuzion Mobile, Inc. in writing at at least fifteen (15) days prior to your automatic bill date. Fuzion Mobile, Inc. is not responsible for lost or stolen equipment or fraudulent use of services by any party. Service Termination.
Subject to applicable law, you expressly agree that all applicable monthly service fees and charges will accrue until this Agreement has terminated and the Services have been disconnected. Monthly Service fees will not be pro-rated. Upon termination of this Agreement for any reason, Fuzion Mobile, Inc. and its suppliers reserve the right, to the extent permitted by applicable law, to delete any data or files, including documents, photographs, electronic messages and/or voicemails, or other information stored on Fuzion Mobile, Inc.’s or its suppliers' servers or systems (collectively, the “Data”). Fuzion Mobile, Inc., its officers, directors, employees, affiliates and their agents and suppliers will have no liability whatsoever as the result of the loss of any such Data. Fuzion Mobile, Inc. may suspend or discontinue providing the Service generally, or terminate your Service, either in whole or in part, at any time in its sole discretion. If Fuzion Mobile, Inc. discontinues providing the Service generally or terminates your Service for a reason other than your breach of this Agreement, you will be responsible only for charges accrued through the date of such discontinuation or termination. Payments and Invoices.
You will make payments to Fuzion Mobile, Inc. for the Service and Equipment using your credit, debit, or other acceptable bank card (the "Card"). You will ensure that the Card information you have provided to Fuzion Mobile, Inc. is valid at all times. Failure to provide valid Card information or Card status may result in Service suspension or termination. Fees and charges for Service are contained in the Order Confirmation and your invoice on "My Account" (My Account is Fuzion Mobile, Inc.’s web-based online account management system that allows you to view your account status, view and pay invoices, make changes to your account profile at any time and purchase additional services at any time). Whenever you update your Card information on file with us, Fuzion Mobile, Inc. may pre-authorize a $1.00 charge to validate your Card. Fuzion Mobile, Inc. will bill you, on a monthly basis. Monthly charges will be automatically charged to your Card on record, as specified in any applicable recurring payment plan you enter with Fuzion Mobile, Inc. You expressly agree that Fuzion Mobile, Inc. may charge your Card all amounts associated with your Fuzion Mobile, Inc. account. You will pay Fuzion Mobile, Inc. all outstanding balances when due. Accounts not paid in full by the due date are subject to suspension or termination by Fuzion Mobile, Inc. To avoid service suspension or termination you must maintain valid Card information on your account. If your Card expires or the account is closed or suspended and you have not provided Fuzion Mobile, Inc. with valid replacement Card information, your account will be suspended or terminated. Before Service can be reactivated, you must pay Fuzion Mobile, Inc. all amounts due. You may also be required to pay a reasonable re-activation fee per account to cover Fuzion Mobile, Inc.’s administrative costs associated with the termination. Billing Disputes.
You must notify Fuzion Mobile, Inc. in writing no later than thirty (30) days after receiving your Card or bank account statement if you dispute any Fuzion Mobile, Inc. charges on that statement or such dispute will be deemed waived. Service Availability.
You acknowledge that Fuzion Mobile, Inc. Service may not be available in all areas and even within coverage areas service availability, signal strength, quality and network speeds may vary and may be lower than advertised or be insufficient for use of the Service. Service Usage.
We reserve the right to safeguard our network from abuse, excessive bandwidth consumption or any activity that compromises the performance of our network. We may limit throughput speeds, control the amount of data transferred, and suspend, modify or terminate service, without notice, if your usage adversely impacts our network or exceeds the monthly allowance of your data plan. All excess usage will be billed at a rate of 2 cents per MB. We may monitor your compliance with the above but will not monitor the content of your transmissions except as otherwise expressly permitted or required by law. Prohibited Uses.
The service may not be used in a manner that violates any law (including without limitation, copyright and intellectual property laws); or the Service Usage clause. Service Outage.
From time to time, Fuzion Mobile, Inc. (or its applicable suppliers or network providers) may perform maintenance on its network, at such times as Fuzion Mobile, Inc. or such suppliers or network providers may determine in their sole discretion. This may require Fuzion Mobile, Inc. to conduct either a planned or unplanned interruption of the Service. All such maintenance or service interruptions may occur without notice to you. Fuzion Mobile, Inc. will use commercially reasonable efforts to schedule maintenance outages so as to minimize the impact on its customers, but cannot guarantee that your Service will not be interrupted. You acknowledge and agree that Fuzion Mobile, Inc. shall not be responsible for any losses or damages suffered by you as a result of any Service interruptions due to maintenance outages. Except as otherwise provided in this Agreement, no refunds or credits will be made for any Service outages. Limited Warranty Equipment.
Fuzion Mobile, Inc. warrants to you that the Equipment, when properly used with any Software or firmware supplied by Fuzion Mobile, Inc., will be substantially free from material defects in material or workmanship, under normal use in compliance with Fuzion Mobile, Inc.’s instructions, for a period of ninety (90) days from the date of purchase ("Limited Warranty"). Fuzion Mobile, Inc. does not warrant that the Equipment or any associated Software will meet your requirements, or that the operation of the Equipment or Software will be uninterrupted or error-free. This Limited Warranty excludes any defects resulting from (a) normal wear and tear; (b) any defect that is (i) discovered by you during the warranty period but you do not notify or request a return merchandize authorization ("RMA") number from Fuzion Mobile, Inc., as required below, until after the end of the warranty period, (ii) caused by any accident, misuse, abuse, neglect, theft, vandalism, improper installation, handling or testing, or actual or attempted unauthorized repair or modification of the Equipment other than that which is expressly granted in writing by Fuzion Mobile, Inc., (iii) caused by use of any software other than any Software supplied by Fuzion Mobile, Inc., or by use of the Equipment other than in accordance with its documentation, or (iv) the result of electrostatic discharge, extremes in temperature, unusual physical stress, electrical surge, fire, water, flood, act of God or similar causes; (c) your failure to comply with Fuzion Mobile, Inc.’s policies, Equipment documentation or other instructions provided by Fuzion Mobile, Inc., or (d) any other cause beyond the reasonable control of Fuzion Mobile, Inc., all as determined by Fuzion Mobile, Inc. in its sole discretion. Repair or Replacement.
Under the ninety (90) day Limited Warranty period applicable to any product purchased by you, Fuzion Mobile, Inc., at its expense, will repair or (at its option) replace the Equipment, and will ship the repaired or replacement Equipment to you, if Fuzion Mobile, Inc. determines, in the exercise of its reasonable judgment, that the Equipment has a covered defect, provided that you first notify Fuzion Mobile, Inc. of any such defect, furnish Fuzion Mobile, Inc. with a proof of purchase, request an RMA number from Fuzion Mobile, Inc., and return the Equipment, shipping charges prepaid, to Fuzion Mobile, Inc. under that RMA. If the defective device is not shipped within 15 days of receiving an RMA and replacement equipment has been shipped to you, you will be charged the current retail rate for the replacement equipment. If, upon reasonable examination of the returned Equipment, Fuzion Mobile, Inc. does not substantiate the defect claimed by you, or determines that the defect is not covered under this limited warranty, Fuzion Mobile, Inc. will not be required to repair or replace the Equipment, but may instead reship the Equipment to you, in which case you shall be responsible for paying Fuzion Mobile, Inc.’s usual charges for unpacking, testing, and repacking the Equipment for reshipment to you. You shall bear the risk of loss or damage in transit to any Equipment returned by you to Fuzion Mobile, Inc., or any returned Equipment not found to be defective or covered under the Limited Warranty and reshipped by Fuzion Mobile, Inc. to you. Replaced Equipment shall be covered by the Limited Warranty for sixty (60) days after the date of shipment of such replacement Equipment. Fuzion Mobile, Inc. will replace Equipment pursuant to the foregoing warranty within thirty (30) days of being so notified. Any returned and replaced Equipment becomes the property of Fuzion Mobile, Inc. Repair or replacement, in Fuzion Mobile, Inc.’s discretion, of the Equipment is Fuzion Mobile, Inc.’s only responsibility, and your exclusive remedy, for breach of any warranty regarding the Equipment, as applicable. This Limited Warranty is personal to you, and will terminate immediately upon the sale or transfer of the Equipment or expiration or termination of this Agreement. Credits.
(i) The Service and Equipment, and any Software used to provide the Service; (ii) all Service information, documents and materials delivered to you by Fuzion Mobile, Inc. or located on Fuzion Mobile, Inc.’s website (collectively "Information"); (iii) all names, service marks, trademarks, trade names, logos and domain names (collectively "Marks") of Fuzion Mobile, Inc.; and (iv) all other intellectual property rights in the data, schematics, layout, designs, specifications, firmware and software related to the Equipment, Service and/or the Software are and will remain the sole property of Fuzion Mobile, Inc. and nothing in this Agreement grants you the right or license to use any of such Software, Information, or Marks except for your nonexclusive use of the Software and Information in connection with your personal use of the Service and Equipment in accordance with this Agreement. You may not decompile, disassemble, reverse engineer or modify the Equipment or Service or any other product or service purchased from Fuzion Mobile, Inc., or combine it with, or incorporate it in, other products without prior written authorization from Fuzion Mobile, Inc. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
THE ONLY WARRANTIES BEING MADE BY FUZION MOBILE, INC.WITH REGARD TO THE SERVICE AND EQUIPMENT ARE THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT. FUZION MOBILE, INC. AND ITS AFFILIATES, THE AGENTS AND SUPPLIERS OF EACH, AND ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS, SERVICE PROVIDERS AND SUPPLIERS (COLLECTIVELY, THE "FUZION MOBILE, INC. PARTIES") DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY PERFORMANCE AND FITNESS FOR A PARTICULAR PURPOSE OR USE, AVAILABILITY, NON-INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE OR EQUIPMENT, OR NON-INFRINGEMENT. ANY STATEMENTS MADE IN ANY PACKAGING, MANUALS OR OTHER DOCUMENTS NOT EXPRESSLY INCORPORATED HEREIN, OR BY ANY FUZION MOBILE, INC. EMPLOYEES OR REPRESENTATIVES, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS REPRESENTATIONS OR WARRANTIES OF ANY KIND BY ANY FUZION MOBILE, INC.PARTIES. FUZION MOBILE, INC .DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON FUZION MOBILE, INC.’S BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SERVICE AND THE EQUIPMENT. THIS SECTION WILL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT FOR ANY REASON. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU IN WHOLE OR IN PART. LIMITATION OF LIABILITY.
(A) IN NO EVENT SHALL ANY OF THE FUZION MOBILE, INC. PARTIES BE LIABLE OR OBLIGATED IN CONNECTION WITH THIS AGREEMENT, UNDER ANY THEORY, WHETHER IN CONTRACT, TORT, NEGLIGENCE, PRIVACY, SECURITY, STRICT OR PRODUCT LIABILITY, BREACH OF WARRANTY, OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY AMOUNTS (WHETHER SEPARATE OR CUMULATIVE) IN EXCESS OF THE AGGREGATE OF THE FEES PAID TO FUZION MOBILE, INC.FOR THE APPLICABLE SERVICE AND EQUIPMENT HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO LIABILITY; (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICE, PRODUCTS, OR RIGHTS; (III) FOR ANY LOSS OR CORRUPTION OF DATA, DELAYED, DEGRADED OR INTERRUPTED USE OF THE SERVICE OR ACCESS TO THE INTERNET, INABILITY TO MAKE OR COMPLETE CALLS USING THE INTERNET PHONE SERVICE, OR DAMAGE TO ANY HARDWARE, SOFTWARE, OR THE SERVICE LOCATION; (IV) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES AND/OR LOST PROFITS (INCLUDING WITHOUT LIMITATION LOSS OR INTERRUPTION OF USE, DATA, BUSINESS, REVENUES OR PROFITS), HOWEVER CAUSED, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE EQUIPMENT, SERVICE OR OTHER PRODUCTS OR SERVICES PROVIDED BY FUZION MOBILE, INC. HEREUNDER, EVEN IF FUZION MOBILE, INC.HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES; (V) FOR ANY LACK OR BREACHES OF SECURITY OF THE SERVICE OR IN THE STORAGE OR INTEGRITY OF YOUR DATA OR ANY USER'S DATA; OR (VI) FOR ANY DAMAGES ARISING FROM ANY DELAY OR FAILURE IN PERFORMANCE DUE TO EVENTS OR CAUSES OUTSIDE FUZION MOBILE, INC.’S REASONABLE CONTROL.
(B) THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT FUZION MOBILE, INC.WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES, AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IF YOU ARE DISSATISFIED WITH THE SERVICE OR EQUIPMENT OR IF YOU HAVE ANY OTHER DISPUTE WITH FUZION MOBILE, INC., OR CLAIM AGAINST FUZION MOBILE, INC., THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE AND ANY LIABILITY WILL BE LIMITED TO THE RECOVERY OF YOUR DIRECT DAMAGES, LIMITED BY THE LIMITATIONS OF LIABILITY CONTAINED HEREIN AND BY THE EXCLUSIONS SET FORTH IN THIS SECTION. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION WILL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OTHER MODIFICATIONS OF OR LIMITATIONS TO CERTAIN REMEDIES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU, IN WHOLE OR IN PART.
(C) YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT BETWEEN YOU AND FUZION MOBILE, INC. AND THAT, IN THE ABSENCE OF SUCH LIMITATIONS, FUZION MOBILE, INC. WOULD NOT ENTER THIS AGREEMENT WITH YOU AND ANY ALTERNATIVE AGREEMENT BETWEEN YOU AND FUZION MOBILE, INC. FOR THE PROVISION OF THE EQUIPMENT AND THE SERVICE WOULD CONTAIN TERMS SUBSTANTIALLY DIFFERENT THAN THOSE CONTAINED IN THIS AGREEMENT. Complaint Resolution and Notices.
All complaints must be sent to Fuzion Mobile, Inc. Customer Care at firstname.lastname@example.org
or by calling 1.888.937-3894. Fuzion Mobile, Inc. may require you to describe the complaint in writing. Written notices to you from Fuzion Mobile, Inc. will be deemed given when sent to the email address specified on your most recent Order or Payment Confirmation. You are responsible for notifying Fuzion Mobile, Inc. of any changes in your email and/or mailing address. Written notice to Fuzion Mobile, Inc. will be effective when directed to Fuzion Mobile, Inc.’s Customer Care Department and received at email@example.com
Except as provided in this Agreement, notices must be in writing to be effective. You also agree that all correspondence and notice sent to you by Fuzion Mobile, Inc., including account statements, account status, payment and billing information, and changes to terms of service may be sent by Fuzion Mobile, Inc. electronically to the last email address provided by you. Indemnification.
You will defend, indemnify, and hold harmless the Fuzion Mobile, Inc. Parties against any and all claims, losses, damages, and liabilities arising from the use or misuse of the Service or Equipment or any breach of this Agreement by you or by any person you allow to use the Service or Equipment. You also agree to reimburse the Fuzion Mobile, Inc. Parties and pay each Fuzion Mobile, Inc. Party's reasonable attorneys' fees and costs related to defending such claims and related to enforcing this Agreement, including any such fees incurred in connection with any appeal. This section will survive termination or expiration of this Agreement for any reason. Assignment and Successors in Interest.
All of the provisions of this Agreement will be binding upon, inure to the benefit of, and be enforceable against your respective successors and permitted assigns. Except as specifically stated herein, you may not assign or delegate this Agreement or any of your rights, interests, or obligations without the prior written consent of Fuzion Mobile, Inc., which consent may be withheld in its sole discretion. Any such assignment without consent will be null, void and of no effect. Entire Agreement/Severability.
This Agreement may be amended from time to time and represents the entire agreement and understanding of you and Fuzion Mobile, Inc. regarding the subject matter of this Agreement and supersedes all other representations, whether electronic written, or verbal, regarding the subject matter contained herein. In the event this Agreement is inconsistent with any document incorporated herein by reference or any other agreement between you and Fuzion Mobile, Inc., this Agreement will control unless Fuzion Mobile, Inc. has expressly stated or agreed otherwise. In the event that a court of competent jurisdiction determines, in a final non-appealable judgment, that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be deleted and the remainder of this Agreement will remain in full force and effect and shall be enforced as nearly as possible in accordance with the stated intention of the parties. ARBITRATION; CHOICE OF LAW; STATUTE OF LIMITATIONS; JURY AND CLASS ACTION WAIVER. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES. ALL DISPUTES ARISING UNDER THIS AGREEMENT (OTHER THAN YOUR FAILURE TO MAKE PAYMENTS IN ACCORDANCE WITH THIS AGREEMENT, ANY ACTION TO COLLECT AMOUNTS DUE TO FUZION MOBILE, INC. UNDER THIS AGREEMENT, AND/OR ANY ACTIONS CONCERNING FUZION MOBILE, INC.’S INTELLECTUAL PROPERTY RIGHTS, EACH OF WHICH MAY BE BROUGHT BY FUZION MOBILE, INC. IN ANY COURT OF COMPETENT JURISDICTION) WILL BE SETTLED EXCLUSIVELY BY BINDING ARBITRATION USING THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA") THEN IN EFFECT. THE PLACE FOR ARBITRATION WILL BE IN DALLAS COUNTY, TEXAS. ONE (1) ARBITRATOR SELECTED IN ACCORDANCE WITH THE AAA RULES WHO HAS EXPERTISE IN TELECOMMUNICATIONS, E-COMMERCE AND LICENSING MATTERS WILL CONDUCT THE ARBITRATION. THE DECISIONS OF THE ARBITRATOR WILL BE BINDING AND CONCLUSIVE UPON ALL PARTIES INVOLVED AND JUDGMENT UPON ANY AWARD OF THE ARBITRATOR MAY BE ENTERED BY ANY COURT HAVING COMPETENT JURISDICTION. THIS PROVISION WILL BE SPECIFICALLY ENFORCEABLE IN ANY COURT OF COMPETENT JURISDICTION. THIS DUTY TO ARBITRATE AND THE PROVISIONS IN THIS SECTION WILL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT FOR ANY REASON. THE ARBITRATOR WILL NOT HAVE ANY AUTHORITY TO AWARD ANY SPECIAL OR PUNITIVE DAMAGES OR ANY OTHER DAMAGES EXCEPT AS PERMITTED BY THIS AGREEMENT. YOU AND FUZION MOBILE, INC. WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIMS OR DISPUTES RELATING TO THIS AGREEMENT OR THE SERVICE OR EQUIPMENT. NEITHER PARTY SHALL, AND EACH PARTY WAIVES ANY RIGHT TO, PARTICIPATE IN A CLASS ACTION (INCLUDING ANY CLASS ARBITRATION), EITHER AS A CLASS REPRESENTATIVE OR A CLASS MEMBER, ACT AS A PRIVATE ATTORNEY GENERAL, OR JOIN OR CONSOLIDATE CLAIMS WITH CLAIMS OF ANY OTHER PERSON, UNLESS IN THE SOLE JUDGMENT OF FUZION MOBILE, INC., FUZION MOBILE, INC. WISHES TO CONSOLIDATE THE LEGAL CONTROVERSY OF TWO OR MORE PARTIES IN ANY ARBITRATION PROCEEDING OR OTHER LEGAL ACTION. YOU AND FUZION MOBILE, INC. AGREE THAT ANY CLAIM ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE CLAIM ARISES, OR THE CLAIM WILL BE PERMANENTLY BARRED. NOTHING IN THIS AGREEMENT WILL PREVENT FUZION MOBILE, INC. FROM SEEKING CONSERVATORY, PROTECTIVE OR INJUNCTIVE RELIEF WITH RESPECT TO A VIOLATION OF ITS INTELLECTUAL PROPERTY RIGHTS IN ANY COURT OF COMPETENT JURISDICTION PENDING THE OUTCOME OF THE ARBITRATION, OR ENFORCEMENT OR RECOGNITION OF ANY AWARD OR ORDER IN ANY COURT OF COMPETENT JURISDICTION. SHOULD YOU FILE AN ACTION CONTRARY TO THIS PROVISION, FUZION MOBILE, INC. MAY RECOVER FROM YOU ITS REASONABLE ATTORNEY FEES AND COSTS. YOU AND FUZION MOBILE, INC. INITIALLY SHALL SHARE EQUALLY THE FEES AND EXPENSES OF THE ARBITRATION. HOWEVER, THE PREVAILING PARTY (IF APPLICABLE AND AS DETERMINED BY THE ARBITRATOR) SHALL BE ENTITLED TO RECOVER FROM THE NON-PREVAILING PARTY ALL SUCH FEES AND EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES). THE FOREGOING TERMS NOTWITHSTANDING, FUZION MOBILE, INC. MAY SEEK ANY INTERIM OR PRELIMINARY RELIEF FROM A COURT OF COMPETENT JURISDICTION IN DALLAS, TEXAS NECESSARY TO PROTECT ITS RIGHTS PENDING THE COMPLETION OF ANY ARBITRATION PROCEEDING AND SHALL ALWAYS HAVE AND RETAIN THE RIGHT TO PURSUE LEGAL ACTION OF ANY KIND OR NATURE WHATSOEVER IN ANY APPROPRIATE JURISDICTION IN ORDER TO PROTECT ITS INTERESTS.
IN THE EVENT THAT ANY OF THE TERMS IN THIS SECTION (ARBITRATION) IS HELD TO BE IN CONFLICT WITH A MANDATORY PROVISION OF APPLICABLE LAW, THE CONFLICTING TERM OF THIS SECTION SHALL BE MODIFIED AUTOMATICALLY TO COMPLY WITH SUCH PROVISION AND THE REMAINDER OF THIS SECTION SHALL NOT BE AFFECTED.