FORTIS GLOBAL, LLC WEBSITE TERMS OF SERVICE – EFFECTIVE AS OF 11/26/2019
IMPORTANT! THIS IS A BINDING LEGAL AGREEMENT (this “Agreement”).
PLEASE READ THIS AGREEMENT BEFORE USING THIS SITE.
LAST UPDATED 11/26/2019.
We reserve the right, in our sole discretion, to modify, add, or remove portions of the terms of this Agreement at any time without notice. Unless otherwise indicated, such changes will become effective immediately upon our posting of the changes to www.fortisglobal.org/legal. Therefore, please check www.fortisglobal.org/legal periodically for such changes. You hereby agree that your Use of the Site following the posting of changes to this Agreement at www.fortisglobal.org/legal means that you accept all such changes.
Please note that additional terms and conditions may apply to other transactions or activities on or through this Site or the Application. You agree to comply with the terms and conditions set forth herein and any and all such applicable additional terms and conditions.
We reserve the right in our sole discretion to revoke or deny your access to the Site and/or the Application, including, without limitation, if you violate any provision of this Agreement or the ALA.
As a condition of your Use of the Site and/or the Application: (i) you must be at least 18 years of age; (ii) you must possess the legal authority and capacity to create a binding legal obligation, including to be bound by the terms of this Agreement; and (iii) your Use of the Site and/or the Application must not violate any law, statute, ordinance, rule or regulation. You hereby represent and warrant that you satisfy all of the foregoing conditions. If you do not satisfy all of the foregoing conditions, you are not authorized to use the Site or the Application.
RESTRICTIONS ON USE OF SITE AND CONTENT
Except as set forth below with respect to “Communications” (as defined below): (i) all rights in the information, data, text, software, music, photographs, pictures, designs, graphics, logos, files, products, services, images, videos, messages, sounds, files, and other materials contained and/or displayed on the Site and/or the Application, the layout and design of the Site, and the selection and arrangement of material on the Site are owned or licensed by Fortis Global (hereinafter the “Content”); and (ii) you may not modify, alter, download, upload, post, reproduce, distribute, publish, transmit, copy, display, transfer, sell, re-sell, perform, license or sublicense the Content or use the Content to create derivative works in any form, manner or by any means, for any commercial purpose without the prior written permission of Fortis Global, and/or otherwise as specifically provided herein.
Subject to your compliance with the terms of this Agreement, we grant you a limited, nonexclusive, non-transferable, non-sublicensable license to access and use the Content solely in connection with your permitted use of the Site and solely for your personal and for non-commercial purposes.
The Site may contain or reference trademarks, service marks, trade names, patents, copyrighted materials, trade secrets, technologies, products, processes or other proprietary rights (collectively the “IP”) owned by Fortis Global and/or other parties. No license to or right in any such IP is granted to or conferred upon you and you may not use the IP for any purpose (including those identified in the restrictions provisions set forth below), except as otherwise permitted herein or as permitted by law.
In addition to the foregoing restrictions, you further agree that in connection with your Use of the Site, you will not in any manner:
- use any devices or mechanisms, including but not limited to software, routines, malicious or unauthorized code, engines, tools, agents, robots, spiders, crawlers, data mining tools, viruses, worms, Trojan horses, malware, programs, time bombs, mail bombs, cancelbots, spam or other harmful components (hereinafter collectively “Devices”) or engage in any conduct to (i) interrupt, disrupt, alter, destroy, impair, restrict, tamper or interfere with, or otherwise hamper the proper operation of, access to or provision of services to the Site, or(ii) monitor, scrape, download or copy the Site or the Content, or any aspect thereof;
- provide or send us any information or data that includes any Devices;
- engage in any conduct that creates or is intended to create liability for Fortis Global;
- decipher, decompile, disassemble or reverse engineer any of the software used in connection with the Site; violate the restrictions in any robot exclusion headers on the Site or otherwise bypass, breach or circumvent any security or authentication measures and/or other measures employed to prevent or limit access to the Site; send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or otherwise use or send altered, deceptive or false source-identifying information; impersonate or misrepresent your affiliation with any person or entity; collect or store from the Site any personally identifiable information regarding other users of the Site without their express permission; intercept or expropriate any system, data or information from the Site; deep-link to any portion of the Site for any purpose without our express written permission; “frame”, “mirror” or otherwise incorporate any part of the Site or Content into any other website, mobile application, product or service without our prior written authorization; use any meta tags or other hidden text or metadata utilizing the Content without our express written consent;
- engage in any conduct that: (i) infringes, misappropriates or violates any other party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) is fraudulent, false, misleading or deceptive; (iii) is defamatory, obscene, pornographic, vulgar or offensive; (iv) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (v) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (vi) promotes illegal or harmful activities or substances; (vii) otherwise violates, or encourages any conduct that would violate, any applicable law, statute, ordinance, rule or regulation or that would give rise to civil liability; or (viii) violates the ALA; or
- Encourage or enable any other individual to do any of the foregoing.
Additional restrictions on the Use of this Site are set forth in other provisions of this Agreement.
Our Site may provide you with the ability to use usernames, passwords, or other codes or devices to gain access to certain portions of our Site (“Passwords”). You are entirely responsible for maintaining the confidentiality of your Passwords and for all activities that occur under your account. We reserve the right to immediately terminate your account in our sole discretion and without prior notice to you, including, for example, if you violate any part of this Agreement or the ALA.
With respect to all communications you make available, provide or send to Fortis Global, including but not limited to information, feedback, questions, comments, proposals, content, suggestions, submissions, reviews, photographs, images, designs, music, videos, ideas, concepts, know-how, content, techniques and/or any other materials (“Communications”), and all Communications you post, display or upload on the Site, you grant (or warrant that the owner of such materials expressly granted) Fortis Global a worldwide, nonexclusive, royalty-free, perpetual, transferable, irrevocable and fully sublicensable right and license in our sole discretion to: (i) use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from, publicly display and perform and/or otherwise use or disclose to or share with others such Communications or incorporate such Communications into any form, forum, medium, or technology for any purpose whatsoever throughout the world in any media, now known or hereafter devised, including, without limitation, the development, production and marketing of products and services that incorporate such Communications; (ii) use the name that you submit in connection with such Communications; and/or provide attribution of your Communications at our sole discretion; and (iii) pursue at law any person or entity that violates your or our rights in the Communications by a breach of these Terms. You expressly waive any and all ‘moral rights’ (including rights of attribution or integrity) that may subsist in your Communications.
Subject to the foregoing, nothing in this Agreement shall be deemed to restrict any rights that you may have to use, modify and/or otherwise exploit your Communications.
Please do not send us any confidential messages, and please use Internet e-mail only to send us non-confidential messages. Do not include confidential personal or private information. Please do not use Internet e-mail to send us transaction instructions (including, for example, instructions that include credit card, wire transfer, routing, banking or other confidential information). Customers who choose to send Internet e-mail messages to Fortis Global that contain confidential, private or personal information do so entirely at their own risk.
THIRD PARTY SITES AND MATERIALS
This Site contains links to websites and resources operated by parties other than us, who may provide goods and/or services and whose websites may link to our Site (hereinafter “Third Party Sites”). Such links are provided for your convenience only. We do not control such Third Party Sites and are not responsible for their content or accuracy. We make no warranties regarding and are not liable or responsible for them, for links displayed on such websites or for any third party materials, products, or services that you purchased, rent, lease or otherwise acquire from such Third Party Sites. The inclusion on the Site of links to Third Party Sites does not imply any endorsement or accuracy of the material on such websites or any association with their operators. You acknowledge sole responsibility for and assume all risk arising from your use of any Third Party Sites.
FORTIS GLOBAL’S RIGHT TO MAKE CHANGES
Fortis Global reserves the right to make changes, corrections, cancellations and/or improvements to the Site and Content, and the products, services and programs described therein at any time without notice, including after confirmation of a transaction.
INDEMNIFICATION AND RELEASE
You hereby indemnify, defend and hold us and the services we and our affiliates manage and each of our respective owners, parents, partners, subsidiaries, affiliates, officers, directors, agents, contractors, subcontractors, attorneys, licensees, invitees, permitees and employees (collectively, the “Indemnified Parties”) harmless from and against any and all allegations, demands, claims, liabilities, damages, fines, penalties, liens, actions, agreements, suits, causes of action, obligations, controversies, debts, expenses, judgments, orders and liabilities or costs of whatsoever nature (including attorneys’ fees), including without limitation, claims for wrongful death of or injury to any person, loss of or damage to any property, infringement or violation of any intellectual property or personal rights (including without limitation, copyright, patent, trade secret, trademark, service mark, domain name, artist, droit moral, privacy, and/or publicity related rights, or defamation) or violation of any other rights of any kind (hereinafter each a “Claim” and collectively, “Claims”) which arise out of, concern, pertain or relate in any way to: (i) this Agreement (including without limitation, a breach by you of this Agreement or the ALA); (ii) the Site, including but not limited to the Use of or inability to Use or access the Site or the Application or the functioning or non-functioning of the Site or Application; (iii) the Content; (iv) Third Party Sites; (v) the Communications; (vi) the Passwords; (vii) the IP; (viii) any act or omission by you, including without limitation, any transaction in which you engage on and/or in connection with the Site, the Application and/or any Third Party Sites; and/or (ix) the performance or failure to perform by the Indemnified Parties in connection with any transaction, or activity on or relating to the Site, the Application and/or any Third Party Sites (hereinafter subsections (i)-(ix) of this section are referred to as the “Claims List”).
By utilizing the Site, you, and (if applicable) each of your respective officers, employees, directors, shareholders, parents, subsidiaries, alter egos, affiliates, partners, agents, attorneys, accountants, heirs, executors, administrators, conservators, trustees, successors and assigns hereby fully and forever release and discharge the Indemnified Parties from any and all Claims, whether or not caused by or contributed to by the negligence of any of the Indemnified Parties, and whether now known or suspected, which existed or may have existed, or which do exist or which hereafter can, shall or may exist, based on any facts, events or omissions occurring from any time on or prior to the effective date of this Agreement and/or any modifications of this Agreement arising out of, concerning, pertaining or relating in any manner to the items listed in the Claims List. You have been advised of the existence of Section 1542 of the California Civil Code (“Section 1542”), which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
NOTWITHSTANDING SUCH PROVISION, this release shall constitute a full release in accordance with its terms. You knowingly and voluntarily waive the provisions of Section 1542, as well as any other statute, law or rule of similar effect. In connection with this release and such waiver and relinquishment, you acknowledge that you are aware that you may hereafter discover Claims presently unknown or unsuspected, or facts in addition to or different from those which you now know or believe to be true, with respect to the matters released herein. Nevertheless, it is your intention, through this Agreement, and with the advice of counsel, fully and finally settle and release all such matters, and all Claims relative thereto, which do now exist, may exist, or have existed between and among the parties hereto, including the Indemnified Parties. You hereby acknowledge that you have been advised by your legal counsel regarding – or after having had the opportunity to consult with counsel but having elected not to do so, understand and acknowledge the significance and consequence of – this release and of this specific waiver of Section 1542 and other such laws.
DISCLAIMER AND LIMITATION OF LIABILITY AND WAIVER
Your Use of the Site and the Application is at your own risk. The Site and the Application are provided “as is” and on an “as available” basis without representations or warranties of any kind, either express, implied or statutory. To the maximum extent permissible pursuant to applicable law, on behalf of the Indemnified Parties, we expressly disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, design, accuracy, capability, sufficiency, suitability, capacity, completeness, availability or compatibility, or arising from course of dealing or course of performance. We expressly exclude, and you hereby waive any liability on the part of the Indemnified Parties for any special, indirect, direct, incidental, consequential or punitive damages or any other damages whatsoever, including but not limited to loss of profits, data, income, revenue, business, contracts, savings or anticipated savings, goodwill or cost of cover, or wasted management, business, personal or office time, arising out of or relating to the Site, the Application, or the Content, and whether caused in whole or in part by negligence, acts of god, telecommunications failure, theft, destruction or any other reason.
In particular, and without limitation, we make no oral, written or any other representations, warranties or endorsements regarding the Application, the Content or the Site (including but not limited to the Use and/or operation of the Site), and disclaim any and all liability regarding the Application, the Content and the Site (including but not limited to the Use and/or operation of the Site).
If you are dissatisfied with the Site or any aspect thereof, or members or suppliers associated herewith, as the case may be, your sole and exclusive remedy shall be to discontinue use of the Site.
OUR LIABILITY AND/OR RESPONSIBILITY FOR PRODUCTS AND/OR SERVICES PROVIDED ON OR THROUGH THE SITE IS LIMITED TO DAMAGES ARISING FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. YOUR REMEDY IS LIMITED TO REPLACEMENT OF SUCH PRODUCTS OR SERVICES. WITH RESPECT TO PRODUCTS OR SERVICES ON THE SITE FOR WHICH WE ARE NOT THE ACTUAL PROVIDERS OF SUCH PRODUCTS AND SERVICES, WE DISCLAIM ANY AND ALL LIABILITY RELATING TO THEM. SHOULD YOU HAVE ANY ISSUES WITH SUCH PRODUCTS AND SERVICES, YOU AGREE THAT YOUR SOLE RECOURSE IS WITH THE MERCHANT OR SERVICE PROVIDER WHO PROVIDED SUCH PRODUCTS AND SERVICES AND NOT WITH US.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS.
ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 U.S.C. 27012711)
We make no guaranty of confidentiality or privacy of any Communications or information transmitted on the Site or any website linked to the Site. We will not be liable for the privacy of
Communications and/or any other information, e-mail addresses, registration and identification information, disk space, confidential or trade-secret information, or any other content transmitted over networks accessed by the Site, or otherwise connected with your use of the Site.
You and we are independent contractors, and no agency, partnership, joint venture, employeeemployer or franchiser-franchisee relationship is intended or created by this Agreement.
(NO JURY TRIAL OR CLASS ACTION, ARBITRATION, ILLINOIS COURT ACTIONS)
1. No Jury Trial or Class Action
YOU ACKNOWLEDGE AND AGREE THAT YOU AND WE ARE EACH WAIVING ANY RIGHT YOU OR WE MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING REGARDING
ANY “DISPUTES” (AS DEFINED BELOW), INCLUDING ANY “IP PROTECTION ACTION” (AS DEFINED BELOW) AND “OTHER ACTION” (AS DEFINED BELOW).
You and we agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity hereof or the Use of the Site or regarding Communications, Passwords or Claims (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court, and (ii) to seek injunctive or other equitable relief in the Illinois Courts (as defined below) to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”).
Unless both you and we otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class, jury or representative proceeding. If this “Arbitrator Restrictions” section is held unenforceable, then the entirety of this “Arbitration” section will be deemed void, and the parties shall be bound by the surviving dispute resolution sections of this Agreement. Except as provided in the preceding sentence, this “Arbitration” section will survive any termination of this Agreement.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for
Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and a separate form for California residents at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822). The arbitrator shall be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and we otherwise agree, the arbitration will be conducted in Cook County, Chicago, Illinois. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and we submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Disclaimer and Limitation of Liability and Waiver” section above as to the types and amounts of damages for which we may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party in any arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the terms of this Agreement permitting us to change the terms hereof, if we change this “Dispute Resolution” section after the date you first accepted the terms of this Agreement (or accepted any subsequent changes to the terms hereof), you may reject any such change by sending us written notice to the address set forth below under “Contact Information” within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email to you (if any) notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the terms of this Agreement (or accepted any subsequent changes to the terms hereof).
You agree that regardless of any statute or law to the contrary, you must submit any Disputes for arbitration within one (1) year after such claim or cause of action arose or be forever banned.
3. Illinois Court Actions
The exclusive jurisdiction and venue of any IP Protection Action, and for any other action regarding Disputes that results if the “Arbitrator’s Restrictions” section or the entire “Arbitration” section is held unenforceable (hereinafter “Other Action”) shall be the United States District Court for the Northern District of Illinois or, if there is no federal jurisdiction over the action, in the courts of the State of Illinois, located in the county of Cook, Illinois (hereinafter collectively, the
“Illinois Courts”), and you hereby consent to, and waive all defenses of lack of personal jurisdiction, venue and/or forum non conveniens with respect to venue and jurisdiction in the Illinois Courts.
You further acknowledge and agree that any violation of our IP rights and/or breach of this Agreement may result in irreparable damage or injury to us for which we will not have an adequate remedy at law. Accordingly, in addition to any other remedies and damages available to us, you acknowledge and agree that in the event that we reasonably determine that you have in any manner violated or threatened to violate our IP rights and/or that you have breached this Agreement and that such breach is causing or may cause us irreparable damage, we shall be entitled to immediate and permanent injunctive relief, without any requirement to post a bond or other security, and you agree that you shall not contest our right to such relief. If we prevail in an IP Protection Action or Other Action, we will be entitled to recover from you, and you agree to pay, all reasonable attorney’s fees, the costs of such actions, in addition to any other relief to which we may be entitled, including but not limited to monetary damages. Moreover, you agree that we may debit your credit or debit card or charge you for any such amounts. You agree that regardless of any statute or law to the contrary, you must commence a lawsuit regarding any IP Protection Action or Other Action within one (1) year after such claim or cause of action arose or be forever banned.
Except to the extent that applicable law in your country of residence requires application of another law and/or jurisdiction and provides that such application of another law and/or jurisdiction cannot be waived or altered by contract, this Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without giving effect to any principles of conflicts of law. In any event, this Agreement will not be governed by the United Nations Convention on contracts for the international sale of goods.
Except as otherwise provided herein, if any provision of this Agreement is found by a court to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
No failure or delay on our part in exercising any right or remedy hereunder or enforcing the terms and conditions of this Agreement will operate as a waiver thereof. Except as expressly set forth herein, no waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall any waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by an authorized representative of the party making the waiver.
Except as expressly set forth in this Agreement, the exercise by either party of any remedies under the terms of this Agreement will be without prejudice to any other remedies available under the terms hereof or otherwise available.
You agree that you will execute and deliver to us, in recordable form if necessary, such further documents, instruments or agreements, and shall take such further action, that may be necessary or appropriate to effectuate the purposes of this Agreement.
Any notices or other communications provided by us under this Agreement, including those regarding modifications of the Agreement, will be given: (i) via email; or (ii) by posting to the Site or the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
If you have any questions about this Agreement or the ALA, please contact us at:
Fortis Global, LLC
1360 N. Milwaukee Ave., 3rd Floor
Chicago, IL 60622
Copyright © [2019-] Fortis Global, LLC. All rights reserved except as otherwise provided herein, if any provision of this Agreement is found by a court to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.