Fortuna.ai (https://www.fortuna.ai), including all of its related applications, dashboards or platforms (individually and collectively, the “Website”), is owned and operated by Fortuna Corporation, Inc. (“Fortuna”, “we” or “us”). By using or accessing the Website or Fortuna Service(s), by signing or clicking to accept any Subscription Documentation referencing these Terms, or by clicking to accept these Terms, you agree to all the terms and conditions of this Terms of Service Agreement (“Terms”, “Terms of Service” or “Agreement”).
If you are using a Fortuna Service on behalf of a company or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement.
This Agreement includes any Subscription Documentation (as defined below), as well as any policies or exhibits linked to or referenced herein. If you have entered into another agreement with Fortuna concerning specific Services, the terms of that agreement control if there is any conflict with these terms. Please note that we may modify this Agreement as described in Section 16.8 below.
1. “Add-On” means integrations or applications that are sold or made available by Fortuna, or a third-party provider, for authorized use with the Service.
2. “Affiliate(s)” means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of such entity or ownership of 50% or more of the voting securities of such entity.
3. “Aggregate/Anonymous Data” means: (i) data generated by aggregating Client Data with other data so that results are non-personally identifiable with respect to Client or its Customers and (ii) anonymous learnings, logs and data regarding use or effectiveness of the Service.
4. “Authorized Users” means Client’s employees and contractors who are acting for Client’s benefit and on its behalf, and whom Client has authorized to access the Service and the information contained therein.
5. “Business Associate Agreement” (hereinafter “BAA”) means a written agreement between a covered entity and a business associate containing the elements specified at 45 CFR 164.504(e).
6. “Client Data” means: (i) Content and any (ii) Submitted Data.
7. “Confidential Information” means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under this Agreement or learned during the performance of this Agreement, or that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
8. “Content” means text, images or other content that Client selects or submits for use or incorporation with the Service (including without limitation, chat and message logs).
9. “Customer(s)” means any person that is a client, customer, or patient of Client, or that is a potential client, customer or patient of Client.
10. “Customer Data” means data related to the identity, characteristics and activities of Customers, collected or submitted to the Service(s) by Client or captured by the Service. To the extent Client is a Covered Entity or a Business Associate, as those terms are defined in HIPAA, “Client Data” also includes PHI.
11. “Excused Downtime” means unavailability caused by (i) actions or omissions of Client; (ii) failures, errors or defects in the facilities, hardware, software or network of Client; or (iii) circumstances that constitute a force majeure event or that are beyond Fortuna’s reasonable control.
12. “HIPAA” means the Health Information Technology for Economic and Clinical Health Act of 2009 (the “HITECH Act”), the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. §1320d through d-8, as amended from time to time, and the requirements of any regulations promulgated under either the HITECH Act or HIPAA, including, without limitation, the federal privacy regulations as contained in 45 C.F.R. Parts 160 and 164, the federal security standards as contained in 45 C.F.R. Parts 160, 162 and, and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and, all as may be amended from time to time.
13. “Planned Outages” means any scheduled maintenance.
14. “Fortuna Technology” means the Service(s), any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback, as defined in Section 10.2 below.
15. “Proposal” means the quote or proposal provided to Client by Fortuna, prior to Client receiving the Service, in which the basic Subscription terms are outlined for Client and this Agreement is referenced.
16. “Protected Health Information” (hereinafter “PHI”) has the same meaning as that term is defined in HIPAA.
17. “Scope of Use” means the usage limits or other scope of use descriptions for the Service included in the applicable Proposal or Subscription Documentation. These include any numerical limits on Authorized Users, descriptions of product feature levels and names or numerical limits.
18. “Service(s)” means the specific proprietary product of Fortuna provided to Client for Client’s use during the Subscription Term, as part of Client’s Subscription. The “Service(s)” also includes the Website, as defined herein. The “Service” does not include any Third-Party Product.
19. “Submitted Data” means data uploaded, inputted or otherwise submitted by Client to the Service, including any Customer Data, PHI or any Third-Party Content.
20. “Subscription” means Client’s acceptance of the Subscription Documentation provided to Client by Fortuna, whereby Client agreed to receive the Service on an ongoing basis, according to the terms and conditions referenced in the Subscription Documentation. Where applicable, “Subscription” also means Beta Releases and/or Free Access Subscriptions, as defined below.
21. “Subscription Documentation” means any and all documentation evidencing Client’s agreeing to enter into a Subscription for the Service(s), including but not limited to a Proposal, Quote, Services Agreement, Order Form or Statement of Work, which references this Agreement.
22. “Subscription Term” means the Initial Term for the Subscription to the applicable Service, as specified on Client’s Subscription Documentation, and each subsequent Renewal Term (if any), as defined in Sections 8.1 and 8.2, respectively.
23. “Third-Party Content” means content, data or other materials that Client provides to the Fortuna Service(s) from its third-party data providers, including through Add-Ons used by Client.
24. “Third-Party Product” means any Add-On, applications, integrations, software, code, online services, systems and other products not developed by Fortuna.
Other terms are defined in other Sections of this Agreement.
1. Services. Subject to Client’s performance of its duties and obligations under this Agreement, including but not limited to timely payment of all Fees (as defined herein), Fortuna shall provide Client with the Service(s) as specifically set forth in Client’s Subscription Documentation. Fortuna shall have no obligation to provide any services or perform any tasks not specifically set forth in this Agreement, including any applicable Subscription Documentation.
2. Alteration of Services. Client and Fortuna may modify the Service(s) set forth in Client’s Subscription Documentation to include or remove any Service(s), provided that any material change to the Service(s) is agreed to in writing. Fortuna shall have no obligation to perform any Service(s) until the parties have agreed up the effect of such change in the applicable Fees.
3. USE RIGHTS; RESTRICTIONS.
1. Use of Services. Subject to all terms and conditions of this Agreement, Fortuna grants Client a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the Service(s) designated on Client’s Subscription Documentation solely for Client’s internal business purposes, but only in accordance with this Agreement, the applicable Subscription Documentation, and all applicable Scope of Use descriptions.
3. Eligibility and Use by Others. Client and/or Client’s Authorized Users must be over 18 years old to use the Service. Client may permit its Authorized Users to use the Service(s) provided their use is for Client’s benefit only and remains in compliance with this Agreement. Authorized Users shall be subject to the applicable terms and conditions of this Agreement which may be communicated by posting to the Website or on a click-through basis to Authorized Users upon access to the Service and/or Website (“Terms of Service”). Fortuna reserves the right to change the Terms of Service at any time and for any reason in accordance with Section 16.8 below.
4. Responsibility for Authorized Users. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions herein. Client will be solely responsible for authorizing and creating user IDs, passwords and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users and/or restricting and/or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Client is solely responsible for ensuring that any user IDs, passwords and other access credentials (such as API tokens) for the Service are kept strictly confidential and not shared with any unauthorized person. Additionally, Client is solely responsible for complying with all laws applicable to Client in determining which of its agents or employees should be an Authorized User, the level of access for each Authorized User, and when such access should be terminated or restricted. Client will be solely responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials. Client must notify Fortuna immediately of any breach of security or unauthorized use of its account. Use by all Authorized Users in aggregate will count towards any applicable Scope of Use restrictions.
5. General Restrictions. Client must not (and must not allow any third party to): (i) rent, lease, copy, transfer, sublicense or provide access to the Service to a third party (except Authorized Users as specifically authorized above); (ii) incorporate the Service (or any portion thereof) into, or use it with or to provide, any site, product or service; (iii) use the Service (or any portion thereof) for time-sharing purposes or for a third party’s benefit; (iv) publicly disseminate information regarding the performance of the Service (which is deemed Fortuna’s Confidential Information); (v) modify or create a derivative work of the Service or any portion thereof; (vi) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Fortuna Technology or Service, except to the extent expressly permitted by applicable law and then only upon advance notice to Fortuna; (vii) break or circumvent any security measures or rate limits for Services; (viii) distribute any portion of the Service other than as specifically permitted above; or (ix) remove or obscure any proprietary or other notices contained in the Service including in any reports or output obtained from the Service.
6. Beta Releases and Free Access Subscriptions. Fortuna may provide Client with certain Service(s) for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta” or other early-stage Service(s), integrations or features (“Beta Releases”). This Section will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Client’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. Fortuna may use good faith efforts in its discretion to assist Client with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, CLIENT AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH FORTUNA WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CLIENT’S SOLE RISK. Fortuna makes no promises that future versions of a Beta Release will be released or will be available under the same commercial or other terms. Fortuna may terminate Client’s right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in Fortuna’s sole discretion, without liability.
4. CLIENT DATA.
1. Rights in Client Data. As between the parties, Client retains all right, title and interest (including any intellectual property rights) in and to the Client Data. Client hereby grants Fortuna a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of the Client Data solely to the extent necessary to provide the Service and related services to Client and as otherwise provided herein.
2. Aggregate/Anonymous Data. Client agrees that Fortuna will have the right to generate Aggregate/Anonymous Data. Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is Fortuna Technology, which Fortuna may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Fortuna’s products and services and to create and distribute reports and other materials). Fortuna will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Customers, or that would otherwise violate applicable laws, such as HIPAA. If Client and Fortuna have entered into a BAA, Fortuna will use the Aggregate/Anonymous Data only in conformity with the terms of such agreement.
3. Monitoring. Client understands and agrees that Fortuna, and any third-party platform(s) Client uses or accesses in connection with the Service(s), may monitor and analyze Content submitted by Client (including but not limited to reviews, surveys, messages, chats, etc.) to improve the Website, Services or third-party platform; to improve Client’s experience using the Website, Services or third-party platform; to customize and communicate informational or product offerings and promotions to Client; and/or to make the Website, Services, or third-party Platform more helpful or useful to Client and other users.
4. Security. Fortuna agrees to maintain physical, technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure. If Client is a Covered Entity or Business Associate, as defined in HIPAA, Fortuna and Client agree to the terms of Fortuna’s Standard Business Associate Agreement (currently available at https://www.fortuna.ai/baa), which may be amended from time to time, and to secure and utilize PHI in accordance with the BAA. Fortuna takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section.
5. Storage. Fortuna does not provide an archiving service. During the Subscription Term, Client acknowledges that Fortuna may delete Content or Customer Data no longer in active use. Except for requirements that are included in any BAA entered into between Fortuna and Client, Fortuna expressly disclaims all other obligations with respect to storage.
5. CLIENT OBLIGATIONS.
1. Warranty. Client warrants and represents that it is in full compliance with all applicable state and federal laws, rules and regulations. In particular, and without limitation, Client warrants and represents that it will not use the Service in a manner that would violate any obligation with respect to the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999 and any other applicable federal, state, or international law and amendments thereto. Client also warrants and represents that (a) Client has sole ownership of any Content it provides to Fortuna, that such Content is free of any intellectual property claims by any third party, and that Fortuna shall have no obligation to provide Client or third parties any compensation for such Content; (b) any Content that Client and/or Client’s authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, is the original work of Client‘s or their (as applicable) authorship, and will only concern Client or the goods and/or services that Client provides; (c) Client is authorized to provide Fortuna with any Customer, Client or Authorized User information it provides in connection with the Service(s), including any personally identifying information; (d) Fortuna’s possession and/or use of the Submitted Data on Client’s behalf in connection with the Service will not violate any contract, statute, or regulation; (e) Client and/or Client’s authorized representative(s) will only use the Service for interaction with actual Customers. Additionally, if an integration is included in the Service Client orders, Client grants Fortuna the right to access Client’s Information or CRM system directly or through a third-party service for the purposes of fulfilling Fortuna’s obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting Fortuna such right. Fortuna will not be held liable for any consequences of false and/or inaccurate content published to an online review or ratings website through Fortuna by Client or its Authorized Users.
2. Customer Consent. Client agrees to: (i) provide all required disclosures to Customers and obtain all required consents and/or authorizations from Customers, based on applicable laws, prior to utilizing the Service; and (ii) obtain all necessary rights, releases and consents to allow Client Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant Fortuna the rights herein. Client represents and warrants that its Client Data will not violate third-party rights, including intellectual property, privacy and publicity rights. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it must promptly stop using these items with the Service and notify Fortuna.
3. Intended Use of the Service. Client understands and agrees that the Service is intended to allow Client to send transactional and/or informational messages to Client’s own current Customers only. Should Client elect to use the Services to send any messages that constitute advertising or telemarketing, or to communicate with anyone other than Client’s current Customers, Client will only do so in compliance with all local, state, national and international laws, regulations and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions.
6. AVAILABILITY OF SERVICES; SUPPORT.
1. Availability. Subject to the terms of this Agreement and any Planned Outages and Excused Downtime, the Service will be available for access via the Website 99.0% of the time during of the term of this Agreement.
2. Support. Fortuna makes available web-based support through the Website. Additional support services may be available to Client upon payment of applicable fees (if any), as specified in any applicable Subscription Documentation. Any support services are subject to this Agreement and Fortuna’s applicable support policies. Fortuna may also provide onboarding, deployment and other services under this Agreement. The scope, pricing and other terms for these additional services will be set forth in the applicable Subscription Documentation. Fortuna’s ability to deliver the Service(s) will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the Service.
7. FEES AND PAYMENT.
1. Set-Up Fee. In consideration for the Service(s) to be rendered by Fortuna, Client shall pay to Fortuna, upon execution of this Agreement, a non-refundable set-up fee in the amount set forth in the applicable Subscription Documentation (“Set-Up Fee”).
2. Annual Fees. In addition to the Set-Up Fee, Client agrees to pay to Fortuna annual fees as set forth in the applicable Subscription Documentation (“Annual Fee” and collectively with the Set-Up Fees and any fees set forth in the applicable Subscription Documentation, the “Fees”). If additional functionality is added to the Service(s), the Parties agree to negotiate in good faith for an increase in the Fees to become effective at the time of such addition.
3. Payment of Fees. Unless otherwise specified in the applicable Subscription Documentation, all Fees shall be paid annually, in advance, though overage fees (if any) may be charged in arrears. Payments are non-refundable and non-creditable and payment obligations non-cancellable. If Client has elected to pay via credit card, ACH, direct debit, etc., Client authorizes Fortuna to charge Fees and other amounts automatically, on an auto-renew basis. If the applicable Subscription Documentation allows Client to pay in a form not referenced above, payment is due within thirty (30) days of the invoice date, unless a different currency or payment period is specified in the applicable Subscription Documentation.
4. Taxes. Fortuna’s Fees are exclusive of all taxes, and Client must pay any applicable taxes or levies, whether domestic or foreign, other than taxes based on the income of Fortuna. Client will make tax payments to Fortuna to the extent amounts are included in Fortuna’s invoices. Should Fortuna be unable to process/receive the Fees when due and owing, payment shall be considered overdue. Fortuna shall have the right to charge interest on all overdue amounts at the annual rate of 12%, compounded monthly, or the maximum lawful amounts, whichever is less. If Fortuna sends the account for collection and/or initiates legal action to collect overdue amounts, Client shall be liable for all cost and expenses of such action, including reasonable attorney's fees, court costs, and expenses. Additionally, after payment becomes overdue, Fortuna shall have the right to immediately suspend Client’s access to the Service.
5. Annual Fee Increase. Upon sixty (60) days’ prior written notice from Fortuna to Client, Fees for the specific Service(s) included in the applicable Subscription Documentation may be adjusted once annually by up to 3%, effective on the start date of each Renewal Term.
8. TERM AND TERMINATION.
1. Term. This Agreement is effective until the applicable Subscription Term for the Service(s) has expired or the Subscription is terminated as expressly permitted herein. The initial Subscription Term for any Service is twelve (12) months (“Initial Term”), unless otherwise specified in Client’s Subscription Documentation.
2. Subscription Term and Renewals. By agreeing to any Subscription Documentation, Client is agreeing to pay applicable fees for the entire Subscription Term. Client cannot cancel or terminate a Subscription Term except as expressly permitted by Section 8.4 (Termination for Cause). Upon the expiration of the Initial Subscription Term, the Subscription will automatically renew to subsequent twelve (12) month renewal terms (“Renewal Term(s)”) unless: (i) otherwise stated on the applicable Subscription Documentation or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. If no Subscription start date is specified on the applicable Subscription Documentation, the Subscription starts when Client first obtains access to the Service.
3. Suspension of Service. Fortuna may suspend Client’s access to the Service(s) if: (i) Client’s account is overdue or (ii) Client has exceeded its Scope of Use limits. Fortuna may also suspend Client’s access to the Service, remove Client Data or disable Third-Party Products if it determines that: (a) Client has breached Sections 3 (Use Rights; Restrictions) or 5 (Client Obligations) or (b) suspension is necessary to prevent harm or liability to other Clients or third parties or to preserve the security, stability, availability or integrity of the Service. Fortuna will have no liability for taking action as permitted above. For avoidance of doubt, Client will remain responsible for payment of Fees during any suspension period. However, unless this Agreement has been terminated, Fortuna will cooperate with Client to restore access to the Service once it verifies that Client has resolved the condition requiring suspension.
4. Termination for Cause. Either party may terminate this Agreement, including any related Subscription Documentation, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). If Client terminates during the Subscription Term for any reason other than the foregoing, Client will be responsible for the fees due for the entire Subscription Term. Fortuna may also terminate this Agreement or any related Subscription Documentation immediately if Client breaches Sections 3 (Use Rights; Restrictions) or 5 (Client Obligations), for repeated violations of other Sections of this Agreement, or if applicable, a breach of the parties’ BAA.
5. Effect of Termination. Upon any expiration or termination of this Agreement or any Subscription Documentation: (i) Client’s license rights shall terminate and it must immediately cease use of the Service (including any related Fortuna Technology) and delete (or, at Fortuna’s request, return) any and all copies of any Fortuna documentation, scripts, passwords or access codes and any other Fortuna Confidential Information in Client’s possession, custody or control and (ii) Client’s right to access any Client Data in the applicable Service will cease and unless otherwise precluded by a BAA, Fortuna may delete any such data in its possession at any time. If Fortuna terminates this Agreement for cause as provided in Section 8.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
6. Survival. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions); 3 (Use Rights; Restrictions); 4 (Client Data); 7 (Fees and Payment); 8 (Term and Termination); 9 (Confidential Information); 10 (Fortuna Technology); 11 (Third-Party Products and Integrations); 12 (Indemnification); 13 (Disclaimers); 14 (Limitations of Liability); and 16 (General).
9. CONFIDENTIAL INFORMATION.
1. Obligation of Confidentiality. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by this Agreement; and (ii) use the other party’s Confidential Information only to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents, contractors or subcontractors having a legitimate need to know (which, for Fortuna, includes the subcontractors referenced in Section 16.4), provided that such party remains responsible for any recipient’s compliance with the terms of this Section 10 and these recipients are bound to confidentiality obligations no less protective than this Section.
2. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party prior to receipt of the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
3. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
10. FORTUNA TECHNOLOGY.
1. Ownership and Updates. By accepting this Agreement, Client acknowledges that it is obtaining only a limited right to use the Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Client under this Agreement. Client agrees that Fortuna (or its suppliers) retains all rights, title and interest (including all intellectual property rights) in and to all Fortuna Technology (which is deemed Fortuna’s Confidential Information) and reserves any licenses not specifically granted herein. The Service is offered as an on-line, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Service and that Fortuna at its option may make updates, bug fixes, modifications or improvements to the Service from time-to-time.
2. Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Fortuna (collectively, “Feedback”), Client hereby grants Fortuna a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits Fortuna’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise.
11. THIRD-PARTY PRODUCTS AND INTEGRATIONS.
Fortuna may make arrangements with third-party providers, or facilitate Client making arrangements with third-party providers, that provide products or services in connection with the Services described in this Agreement. If Client uses Third-Party Products in connection with the Service(s), those products may make Third-Party Content available to Client and may access Client’s instance of the Service, including Client Data. Fortuna does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by Fortuna as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Service(s), including their modification, deletion, disclosure or collection of Client Data. Fortuna is not responsible in any way for Client Data once it is transmitted, copied or removed from the Service(s).
Client will indemnify and hold Fortuna harmless from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable attorney’s fees) arising from or pertaining to (i) any Client Data or Content, (ii) Fortuna’s use, as contemplated in this Agreement, of any information provided to Fortuna by you or your customers, (iii) breach or alleged breach of this Agreement, including Client’s Warranties and Obligations, (iv) any claim of a governmental entity or other party that you have violated any law, rule, or regulation, or, (v) if applicable, alleged breach or breach of Client’s obligations contained in the BAA. Client also agrees to defend Fortuna against these claims at Fortuna’s request, but Fortuna may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. Client must not settle any claim without Fortuna’s prior written consent if the settlement does not fully release Fortuna from liability or would require Fortuna to admit fault, pay any amounts or take or refrain from taking any action.
EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL FORTUNA TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER FORTUNA NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FORTUNA MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT FORTUNA TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT FORTUNA TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. FORTUNA WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-FORTUNA SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), , FOR THE COLLECTION, USE AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON FORTUNA TECHNOLOGY OR FORTUNA’S RELATED SERVICES (INCLUDING CHANGES TO CLIENT PROPERTIES). THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
14. LIMITATIONS OF LIABILITY.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL FORTUNA OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL FORTUNA’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE FIVE HUNDRED U.S. DOLLARS ($500.00 US). FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES PROVIDED WITHOUT CHARGE, FORTUNA’S TOTAL LIABILITY SHALL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50.00 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 15 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY FORTUNA TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
15. DISPUTE RESOLUTION.
If a dispute arises between the parties related to this Agreement or the Services provided therefrom, and the dispute cannot be settled through informal negotiations, the parties agree to resolve their dispute (referred to herein as “Claim(s)”) as follows:
1. Mediation. The Parties agree to participate in mediation to settle their Claims in accordance with the rules and procedures found in Utah Code § 78B-10-101 et seq. (Utah Uniform Mediation Act and referred to as “UUMA”) and this Agreement before a party can file a judicial action, whether in a court of law, an administrative body, government agency, or otherwise. If there are any conflicting provisions between UUMA and this Agreement, the provisions in this Agreement shall govern.
1. Notice. Mediation shall be conducted within sixty (60) days from a party receiving written notice of Claims from a complaining party. The notice must contain a detailed description of the nature of the Claims and the requested relief sought.
2. Mediator Selection and Mediator Fees. A neutral mediator shall be selected as mutually agreed upon by the parties. The mediator’s fees and costs shall be paid to the mediator at the end of mediation, with both parties equally sharing the mediation costs and paying their own legal fees and costs.
3. Location. Mediation shall occur in Salt Lake City, Utah.
2. Judicial Action. If the parties are unable to resolve the Claim pursuant to the mandatory mediation referenced above (or if one of the parties refuses to participate in the mandatory mediation or fails to respond to a complaining party’s request for mediation), the parties may subsequently file a judicial action.
3. Disputes Not Subject to the Mediation Process. The following claims are not subject to the mandatory mediation provisions of this Section 15:
1. An order of injunctive relief and any related incidental damages; and/or
2. An order to prevent the disclosure of or misuse of Confidential Information or Trade Secrets.
1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Fortuna may assign this Agreement without consent to an Affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
2. Notices. Any notice or communication to Fortuna under this Agreement must be in writing. Client must send any notices under this Agreement (including breach notices) to Fortuna Headquarters and include “Attn. Legal Department” in the subject line. Fortuna may send notices to the e-mail addresses on Client’s account or, at Fortuna’s option, to Client’s last-known postal address. Fortuna may also provide operational notices regarding the Service or other business-related notices through conspicuous posting of such notice on Fortuna’s website or the Service. Each party hereby consents to receipt of electronic notices. Fortuna is not responsible for any automatic filtering Client or its network provider may apply to email notifications.
3. Publicity. Unless otherwise specified in the applicable Subscription Documentation, Fortuna may use Client’s name, logo and marks (including marks on Client Properties) to identify Client as a Fortuna Client on Fortuna’s website and other marketing materials.
4. Subcontractors. Fortuna may use subcontractors and permit them to exercise the rights granted to Fortuna in order to provide the Service and related services under this Agreement.
5. Subpoenas. Nothing in this Agreement prevents Fortuna from disclosing Client Data to the extent required by law, subpoenas, or court orders, but Fortuna will use commercially reasonable efforts to notify Client where permitted to do so.
6. Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
7. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
8. Amendments; Waivers. Fortuna may update or modify these Terms (including referenced policies and other documents) from time to time by posting a revised version on the Website or Service or by notification via the email associated with your account. You may also be required to click through the updated Terms to show acceptance. In any event, subject to the terms of your specific Subscription Documentation, the modified terms will become effective upon posting or notification and continued use of the Service or Website, following the update, shall constitute acceptance of the updated Agreement. If Client does not agree to the updated Agreement after it takes effect, Client will no longer have the right to use the Service. Except as otherwise described in this Section, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.
9. Headings. The headings used in this Agreement are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.
10. Legal Disclaimer. Fortuna does not provide its Clients with legal advice regarding compliance, data privacy or other relevant law in the jurisdiction in which its Clients use the Service, and any statements made by Fortuna to its Client(s) shall not constitute legal advice.
11. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect, and all other provisions remain in full effect
12. No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Subscription Documentation and not any Affiliates.
13. Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.
14. Entire Agreement. This Agreement, including these Terms and any applicable Subscription Documentation, represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Fortuna Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted. Any terms provided by Client (including as part of any purchase order or other business form used by Client) are for administrative purposes only, and have no legal effect.
15. Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument. A facsimile or other reproduction of this Agreement may be executed by one or more Parties hereto, and an executed copy of this Agreement may be delivered by one or more Parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such Party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any Party hereto, all Parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.
16. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the Province of Ontario and Canada, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement shall be the courts located in Toronto, and both parties submit to the personal jurisdiction of these courts.
Last revised: March 21, 2019