Terms of Service
EFFECTIVE DATE: May 31st, 2024
These Terms of Use (“Terms”) are a legal contract between you (“you”) and Fortify Education, Inc. (“us” or “our” or “we” or “Fortify”) and govern your use of all the text, data, information, software, graphics, photographs and other materials (collectively referred to as “Materials”) that we and our affiliates may make available to you through any area of the websites located at https://fortifyedu.com, https://apply.fortifyedu.com, and https://schools.fortifyedu.com (“Websites”), any services we may provide through the Websites (“Services”), and any software that we provide (including, but not limited to, software for installation and use on a mobile device) that permits you to access and use the Services (collectively, the "Software", and in conjunction with the Materials, the Websites and the Services, the “Fortify Service”).
Read these terms carefully before browsing the websites or otherwise using the Fortify Service. Using any part of the Fortify Service indicates that you have both read and accepted these terms. You cannot use the websites, any mobile application or our services if you do not accept these terms.
These terms contain a dispute resolution and arbitration provision, including class action waiver that affects your rights under these terms and with respect to disputes you may have with Fortify. You may opt out of the binding individual arbitration and class action waiver as provided below.
FORTIFY SERVICES
The Fortify Service is a lending platform, providing financing for qualified users at qualifying educational programs and institutions in the United States. Through the Fortify Service, students (each a "Student”) can apply for financing at approved educational programs at approved educational institutions ("Schools") that Fortify has elected to work with.
CHANGES.
We may alter the Services we offer and/or may choose to modify, suspend or discontinue any part or all of the Fortify Service at any time and without notifying you. We may also change, update, add or remove provisions of these Terms from time to time. We will inform you of any modifications to these Terms by posting them on the Websites and in the Software. For major modifications to the Terms of Service, we will send an email to the address associated with your account. To be sure we properly reach your email inbox, you agree to promptly update us if your preferred email address changes at any time after your registration.
If you object to any such modifications, your sole recourse shall be to cease using the Fortify Service. Continued use of the Fortify Service following notice of any such modifications indicates you acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by our credit agreement, by expressly-designated legal notices, or by terms located on particular pages of the Websites or in the Software or on the sites of our partners. Such expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
GENERAL USE.
By using the Fortify Service, you agree that you are at least 18 years of age and that you are a citizen of the United States. If you are not at least 18 years old or if you are not a citizen of the United States, you may not use the Fortify Service.
In these Terms, we are granting you a limited, personal, non-exclusive and non-transferable license to access the Websites, use the Services, and display the Materials; your right to use the Materials is conditioned on your compliance with these Terms. You have no other rights in the Websites, Services or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit the Websites, the Services or any of the Materials in any manner. If you make copies of any of the Materials, you must keep on such copies all of our copyright and other proprietary notices as they appear on the Websites and Mobile Applications.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials (and any copies thereof).
MOBILE APPLICATIONS.
We may distribute Mobile Applications that permit users to access and use the Services via a mobile device. To use a Mobile Application, you must have a mobile device that is compatible with it. We do not warrant that any of the Mobile Applications will be compatible with your mobile device. We hereby grant you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased by you, solely for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that we may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and we and our third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
iOS Apps. The following additional terms and conditions apply with respect to any Mobile Application that we provide to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
You acknowledge that these Terms are between you and Fortify only, and not with Apple, Inc. (“Apple”).
Your use of the iOS App must comply with Apple’s then-current App Store Terms of Service.
Fortify, and not Apple, is solely responsible for the iOS App and the Services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App.
You agree that Fortify, and not Apple, is responsible for addressing any claims by you or any third-party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
You agree that Fortify, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You agree to comply with all applicable third-party terms of agreement when using the iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
You agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of the iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
Android Apps. The following additional terms and conditions apply with respect to any Mobile Application that we provide to you designed for use on an Android-powered mobile device (an “Android App”):
You acknowledge that these Terms are between you and Fortify only, and not with Google, Inc. (“Google”).
Your use of the Android App must comply with Google’s then-current Google Play Terms of Service.
Google is only a provider of the Android Market where you obtained the Android App. Fortify, and not Google, is solely responsible for the Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to the Android App or these Terms.
You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Android App.
Geo-Location Terms. The Mobile Applications, Software, and Websites may include and make use of certain functionality and services provided by third parties that allow us to provide maps, address autocomplete suggestions, geocoding, places and other content. If the Mobile Application you install includes geolocation services from Google, Inc. (“Google”), use of such geolocation Services is subject to Google’s then-current Terms of Use for Google Maps/Google Earth, and by using such services, you are agreeing to be bound by Google’s Terms of Use and Privacy Policy.
USING THE SERVICES.
Fortify Accounts
You need not register with us to simply visit and view the Websites, browse the Software, or download and install the Mobile Applications. However, in order to access password-restricted areas of the Websites and Software and to use the Fortify Service in its entirety, you must have registered for an account with us and that account must have been granted access to use the Fortify Service. If you are registering as a School, you will be required to agree to and sign our additional services agreement for Schools (the “Ancillary Agreement”) before being permitted to partner with Fortify to offer financing to current or potential students. Fortify reserves the right to refuse to do business with Schools or to decline to execute Ancillary Agreements with Schools at our discretion. For so long as you use your Fortify account, you agree to provide only true, accurate, current, and complete information to Fortify, and to update this information regularly, which can be accomplished by logging into your account and making relevant changes directly.
You are responsible for complying with these Terms and the terms of any applicable Ancillary Agreement when you access and use the Fortify Service. Because it is your account, it is your responsibility to obtain and maintain all equipment and services needed for you to access to and use the Fortify Service, as well as to pay related charges. It is also your responsibility to maintain the confidentiality of your password. Should you believe your password or security for the Fortify Service has been breached in any way, you must immediately notify us.
Using the Services
Students. Students may use the Fortify Service to apply for financing, to submit information about themselves for consideration for said financing, and to facilitate the actual financing of their education at a qualifying educational institution if approved.
Schools. Schools may use the Fortify Service to encourage students to enroll and seek financing, and to regularly provide information to Fortify to facilitate the application of students and the collection of owed payments. By using the Fortify Service, you agree that you will not attempt to use the Services for purposes of replicating (or encouraging others to replicate) Fortify's service, other than through the Fortify Service. A breach of these terms is immediate grounds for the termination of your account and your ability to access the Fortify Service.
ELECTRONIC COMMUNICATIONS CONSENT.
The Fortify Electronic Communications Consent ("Electronic Communications Consent") is incorporated by reference into these terms. By agreeing to these Terms, you also agree to the Electronic Communications Consent.
By using the Fortify Service (or any part thereof), you consent to receiving electronic communications from us (including, if you have opted in, via text message) and from other users of the Services. These electronic communications may include communications from third parties and affiliates of Fortify, from Fortify directly, and may include notices about applicable fees and charges, transactional information and other information concerning or related to the Fortify Service. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. Standard carrier data charges may apply to your use of text messaging and you are solely responsible for such charges.
PRIVACY POLICY.
The Fortify Privacy Policy ("Privacy Policy") is incorporated by reference into these Terms. By agreeing to these Terms, you also agree to the Privacy Policy.
We respect the information that you provide to us, and want to be sure you fully understand exactly how we use that information. We encourage you to review the Privacy Policy in detail, which explains how we collect and use such information.
CREDIT PULL AUTHORIZATION
During the application for financing with Fortify, you will provide Fortify with authorization to pull credit. The final promissory note that you sign will contain a full authorization for Fortify to pull your credit report. You are entitled to know your rights under the Fair Credit Reporting Act, and we encourage you to review this document to know your rights relating to your credit report, such as but not limited to your right to dispute inaccurate information or your right to know if your credit report has been used adversely against you. The purpose of the credit report pull will be to facilitate your application for financing at a qualifying educational program.
LINKS TO THIRD-PARTY SITES.
We think links are convenient, and we sometimes may provide links on the Fortify Service to third-party websites. If you use these links, you will leave the Fortify Service. We are not obligated to review any third-party websites that you link to from the Fortify Service, we do not control any of the third-party websites, and we are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, unless specifically stated elsewhere in the Fortify Service, we do not endorse or make any representations about such third-party websites, including any information, software, products, services, or materials found there or any results that may be obtained from your use of them. If you decide to access any of the third-party websites linked to from the Fortify Service, you do so entirely at your own risk and you must follow the privacy policies and terms and conditions for those third-party websites.
USER SUBMISSIONS.
Certain areas of the Fortify Service may permit you to upload or submit feedback, information, images, data, text, software, messages, or other materials (each, a “User Submission”). You agree that you are solely responsible for all of your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary. Further, we do not guarantee that you will be able to edit or delete any User Submission you have submitted.
By submitting any User Submission, you are promising us that:
You own all rights in your User Submissions (including, without limitation, all rights to the reproduction and display of your User Submissions) or, alternatively, you have acquired all necessary rights in your User Submissions to enable you to grant to us the rights in your User Submissions as described in these Terms;
You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submissions;
Your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
You voluntarily agree to waive all “moral rights” that you may have in your User Submission;
Any information contained in your User Submission is not known by you to be false, inaccurate, or misleading;
Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
You were not and will not be compensated or granted any consideration by any third party for submitting your User Submission;
Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than your own);
Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
Your User Submission does not contain any information that you consider confidential, proprietary, or personal; and
Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
By submitting a User Submission, you grant to us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:
Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
Use (and permit others to use) your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that we deem appropriate in our sole discretion (including, without limitation, to incorporate your User Submission or any modification thereto, in whole or in part, into any technology, product, or service);
Display advertisements in connection with your User Submissions and to use your User Submissions for advertising and promotional purposes.
We may, but are not obligated to, pre-screen User Submissions or monitor any area of the Fortify Service through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through the Fortify Service and may remove at any time or refuse any User Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, you agree that we may freely disclose your User Submission to any third party absent any obligation of confidence on the part of the recipient.
UNAUTHORIZED ACTIVITIES.
To be clear, we authorize your use of the Fortify Service only for individual purposes and for the purposes of Students finding financing for your qualifying educational program, or for approved Schools to facilitate the financing of students (“Permitted Purposes”). Any other use of the Fortify Service beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of the Fortify Service. Unauthorized use of the Fortify Service may result in violation of various United States and international copyright laws. Unless you have written permission from us stating otherwise, you are not authorized to use the Fortify Service in any of the following ways. These are examples only, and the list below is not a complete list of everything that you are not permitted to do.
For any public or commercial purpose which includes use of the Materials on another site or through a networked computer environment;
In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of the Fortify Service;
In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
To stalk, harass, or harm another individual;
To impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
To interfere with or disrupt the Fortify Service or servers or networks connected to the Websites;
To replicate features of the Fortify Platform, or solicit partner schools with which to offer features of the Fortify Platform;
To use any data mining, robots, or similar data gathering or extraction methods in connection with the Websites; or
To attempt to gain unauthorized access to any portion of the Fortify Service or any other accounts, computer systems, or networks connected to the Fortify Service, whether through hacking, password mining, or any other means.
In a manner that violates any law, statute, ordinance or regulation.
In any manner relating to transactions involving (a) narcotics, steroids, certain controlled substances or other products that present a risk to consumer safety, (b) drug paraphernalia, (c) cigarettes, (d) items that encourage, promote, facilitate or instruct others to engage in illegal activity, (e) stolen goods including digital and virtual goods, (f) the promotion of hate, violence, racial or other forms of intolerance that is discriminatory or the financial exploitation of a crime, (g) items that are considered obscene, (h) items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction, (i) certain sexually oriented materials or services, (j) ammunition, firearms, or certain firearm parts or accessories, or (k) certain weapons or knives regulated under applicable law.
In any manner relating to transactions that (a) show the personal information of third parties in violation of applicable law, (b) support pyramid or ponzi schemes, matrix programs, other "get rich quick" schemes or certain multi-level marketing programs, (c) are associated with purchases of annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card, (d) are for the sale of certain items before the seller has control or possession of the item, (e) are by payment processors to collect payments on behalf of merchants, (f) are associated with the sale of traveler's checks or money orders, (g) involve currency exchanges or check cashing businesses, (h) involve certain credit repair, debt settlement services, credit transactions or insurance activities, or (i) involve offering or receiving payments for the purpose of bribery or corruption.
In any manner involving the sales of products or services identified by government agencies to have a high likelihood of being fraudulent.
You agree to indemnify and hold Fortify and its officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, costs, awards, fines, damages, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Fortify Service, your violation of these Terms or your violation of any rights of another. You alone are responsible for any violation of these Terms by you or by anyone using your account. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with our defense of such claim.
PROPRIETARY RIGHTS.
The trademarks, service marks, and logos of Fortify (“Our Trademarks”) used and displayed on various parts of the Fortify Service are registered and unregistered trademarks or service marks of Fortify. Other company, product, and service names located on the Fortify Service may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with Our Trademarks, the “Trademarks”). Nothing in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Our Trademarks inures to our benefit.
Unless otherwise specified in these Terms, all Materials, including the arrangement of them on the Fortify Service are our sole property, or the property of our suppliers and licensors. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
INTELLECTUAL PROPERTY INFRINGEMENT.
We respect the intellectual property rights of others and encourage you to do the same. Accordingly, we have a policy of removing User Submissions that violate intellectual property rights of others, suspending access to the Fortify Service (or any portion thereof) to any user who uses the Fortify Service in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the Fortify Service in violation of someone’s intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by a user of the Fortify Service, please provide written notice to us at help@fortifyedu.com for notice of claims of infringement.
To be sure the matter is handled immediately, your written notice must:
Contain your physical or electronic signature;
Identify the copyrighted work or other intellectual property alleged to have been infringed;
Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);
Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
Contain a statement that the information in the written notice is accurate; and
Contain statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the agent will be unable to address the listed concern.
Submitting a Digital Millennium Copyright Act (“DMCA”) Counter-Notification
If we remove or disable access to copyright-protected material that you provided, pursuant to a validly received DMCA take-down notice, we will notify you. In response, you may provide our agent with a written counter-notification that includes the following information:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
We reserve the right, in our sole discretion, to terminate the account or access of any user of the Fortify Service who is the subject of repeated DMCA or other infringement notifications.
YOUR RELATIONSHIP WITH US; DISPUTES AMONG USERS.
Explicit Service Contracts
You hereby acknowledge and agree that unless Fortify has directly executed a contract with a School or Student, we are NOT a party to any oral or written agreement for services or any other contract entered into between and among users of the Fortify Service.
No Agency or Partnership
No agency, partnership, joint venture, or employment is created solely as a result of these Terms or your use of any part of the Fortify Service. You do not have any authority whatsoever under these Terms to bind us in any respect. The parties agree that Fortify is a technology company whose primary business is evaluating and providing financing to Students on behalf of qualifying educational programs at Schools. Neither we nor any users of the Fortify Service may direct or control the day-to-day activities of the other or create or assume any obligation on behalf of the other.
Disputes Between Users
You should take reasonable precautions and make whatever investigation or inquiries you deem necessary or appropriate before proceeding with any online or offline transaction with any third party, including without limitation, Schools, Students, employers, and other individuals or entities with whom you may interact as a result of your use of the Fortify Service.
You understand that deciding whether to use the services of a particular School (as a Student), whether to accept and enroll a particular Student (as a School), to provide your services to an employer, or to otherwise use any information and content found on the Fortify Service, including to execute legally binding contracts, is your personal decision. You understand that we do not and cannot make representations as to the suitability of any individual or organization you may decide to interact with or bind yourself to on or through the Fortify Service and/or the accuracy or suitability of any advice, information, or recommendations made by any individual or organization. For the avoidance of doubt, Fortify does not make any representations about the quality of any qualifying educational program or institution that we work with.
UNLESS OTHERWISE AGREED IN WRITING, IF THERE IS A DISPUTE BETWEEN USERS OF THE FORTIFY SERVICE, OR BETWEEN ANY USER OF THE FORTIFY SERVICE AND ANY THIRD PARTY, YOU ACKNOWLEDGE AND AGREE THAT WE ARE UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN YOU AND ANY THIRD PARTY, YOU HEREBY RELEASE US, OUR OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES**. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY 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 OR RELEASED PARTY.”**
DISCLAIMER OF WARRANTIES.
THE WEBSITES, MATERIALS, SOFTWARE, MOBILE APPLICATIONS AND SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”, AND THE ENTIRE RISK AS TO THEIR USE IS WITH YOU. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE WEBSITES, MATERIALS, SOFTWARE, MOBILE APPLICATIONS AND SERVICES, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY THAT THE WEBSITES, MATERIALS, SOFTWARE, MOBILE APPLICATIONS AND SERVICES WILL MEET YOUR REQUIREMENTS, THAT YOUR USE OF THE FORTIFY SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS IN THE FORTIFY SERVICE WILL BE CORRECTED. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITES, MATERIALS, SOFTWARE, MOBILE APPLICATIONS AND SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OR SERVICES OBTAINED THROUGH THE USE OF THE FORTIFY SERVICE, AND ARE NOT RESPONSIBLE FOR THE PRODUCTS, SERVICES, ACTIONS, OR FAILURE TO ACT OF ANY THIRD PARTY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE FORTIFY SERVICE OR FROM US OR OUR SUBSIDIARIES/OTHER AFFILIATED COMPANIES SHALL CREATE ANY WARRANTY. WE DISCLAIM ALL EQUITABLE INDEMNITIES.
LIMITATION OF LIABILITY.
YOU ARE USING THE WEBSITES, MATERIALS, SOFTWARE, MOBILE APPLICATIONS AND SERVICES AT YOUR SOLE RISK. WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE FORTIFY SERVICE OR YOUR USE OF OUR SERVICES. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, COST OF SUBSTITUTE GOODS AND SERVICES, USE, OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE.
YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY USER OR ORGANIZATION, INCLUDING, BUT NOT LIMITED TO, STUDENTS OR SCHOOLS. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE FORTIFY SERVICE, AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE THEREOF. UNLESS OTHERWISE AGREED IN WRITING, WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE FORTIFY SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE FORTIFY SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS, BUSINESS ARRANGEMENTS, AND INTERACTIONS WITH ANY PERSONS WITH WHOM YOU COMMUNICATE, TRANSACT, OR INTERACT AS A RESULT OF YOUR USE OF THE FORTIFY SERVICE, INCLUDING, BUT NOT LIMITED TO, STUDENTS OR SCHOOLS, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON, REGARDLESS OF WHETHER WE FACILITATE SUCH MEETINGS OR TRANSACTIONS. WE EXPLICITLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER OF THE FORTIFY SERVICE AND ALL OTHER THIRD PARTIES.
LOCAL LAWS; EXPORT CONTROL.
We control and operate the Websites and Software and provide the Fortify Service from our headquarters in the United States of America. The entirety of the Fortify Service may not be appropriate or made available for use in other locations. If you use the Fortify Service (or any portion thereof) outside the United States of America, you are solely responsible for following applicable local laws.
FEEDBACK.
Any submissions you provide to us suggesting changes or improvements to the Fortify Service (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. You understand and agree, however, that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please read the following provision on Dispute Resolution and Arbitration; Class Action Waiver (this “Provision”) carefully. It affects your rights.
It provides that all Disputes (as defined below) between you and Fortify shall be resolved by binding arbitration. Arbitration is a form of private dispute resolution and replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into these Terms constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees).
For purposes of this Provision, “Fortify” means Fortify Education, Inc. and its parents, subsidiaries, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Fortify regarding, arising out of or relating to any aspect of your relationship with Fortify, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as Fortify's licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
YOU AND FORTIFY EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give Fortify an opportunity to resolve the Dispute. You must commence this process by emailing us written notification to help@fortifyedu.com. That written notification must include (1) your name, (2) your physical address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If Fortify does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or Fortify may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt out of this Provision by emailing us written notification to arbitration@fortifyedu.com. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Fortify through arbitration. Your decision to opt-out of this Provision will have no adverse effect on your relationship with Fortify. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and Fortify specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Fortify Service can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
No Judge or Jury in Arbitration
Arbitration does not involve a judge or jury. You understand and agree that by entering into these Terms you and Fortify are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Fortify might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable, and the Dispute will be decided by a court.
Continuation
This Provision shall survive the termination of your service with Fortify or its affiliates. Notwithstanding any provision in these Terms to the contrary, you and Fortify agree that if Fortify makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Fortify to adhere to the present language in this Provision if a dispute between us arises.
General.
We prefer to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by us, may result in immediate termination of your access to the Fortify Service without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or the Fortify Service will be heard in the courts located in Austin, Texas. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Our failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and Fortify and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Fortify about the Fortify Service. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
CONTACT US.
If you have any questions about these Terms, or otherwise need to contact us for any reason, you can reach us at help@fortifyedu.com.
