How Our Services Work
Use of the Services and Forte Properties
Responsibility for Content
Interactions with Other Users
Disclaimer of Warranties
Limitation of Liability
Termination or Suspension of Services by Forte
We provide a platform that allows connections between Students and Teachers to facilitate music lessons.
1. How Our Services Work. Forte operates a platform through its Website (“Platform”) that enables connections between individuals seeking to obtain music lessons (“Students”) and businesses or individuals seeking to provide music lessons to Students (“Teachers”) to facilitate the teaching of such music lessons (each, a “Lesson”). Teachers advertise their subject matter expertise, experience, and other credentials in publicly displayed profiles (“Teacher User Profile”), which is available to any User of the Website. Students will be matched, and students can review Teacher User Profiles to find the right Teacher for them. Teacher matches will be based on different criteria (for example, instrument, matter expertise, experience, availability, and pricing). Students will also have their own user profiles (“Student User Profile”), which will be available to Teachers that Students have matched with or only upon permission to share by the Student. Students and Teachers will reserve lessons times via the platform. All Lessons will be hosted through the Platform in its online environment.
We are not responsible or liable for any Lessons or related Services provided through the Platform.
PLEASE NOTE THAT, AS STATED ABOVE, THE SERVICES ARE INTENDED TO BE USED TO FACILITATE THE CONNECTION OF STUDENTS AND TEACHERS FOR THE PURPOSES OF ARRANGING LESSONS THROUGH THE PLATFORM, BUT YOU AGREE THAT FORTE HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY LESSONS OR RELATED SERVICES OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS. ANY LESSONS ARE PROVIDED BY TEACHERS AND NOT BY FORTE, AND STUDENTS ACCEPT LESSONS AT A STUDENT’S OWN RISK.
Teachers are not employees of Forte, and we do not supervise or direct any Lessons.
TEACHERS ARE NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, OR FRANCHISEES OF FORTE. FORTE DOES NOT PERFORM THE LESSONS AND DOES NOT EMPLOY TEACHERS TO PERFORM SUCH OBLIGATIONS. USERS HEREBY ACKNOWLEDGE THAT FORTE DOES NOT SUPERVISE, DIRECT, CONTROL OR ACCEPT ANY RESPONSIBILITY FOR THE LESSONS BUT MAY MONITOR AND FACILITATE THE LESSONS MADE THROUGH THE FORTE PROPERTIES.
Subject to the Terms, we grant you a license to use Forte Properties for educational and/or professional purposes.
2. Use of the Services and Forte Properties. The Website, the Services, and the information and content available on the Website and the Services (as these terms are defined below) (collectively, the “Forte Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Forte grants you a limited license to reproduce portions of the Forte Properties for the sole purpose of using the Services for your educational and/or professional purposes. Unless otherwise specified by Forte in a separate license, your right to use any Forte Properties is subject to the Terms.
As we update our products and services, we may update the Terms.
2.1 Updates. You understand that the Forte Properties are evolving. You acknowledge and agree that Forte may update the Forte Properties with or without notifying you. You may need to update third-party software from time to time in order to receive the Services or use the Forte Properties.
You agree that you and anyone you’re responsible for won’t violate the Terms or engage in any of the prohibited conduct.
2.2 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Forte Properties or any portion of the Forte Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Forte Properties (including images, text, page layout or form) of Forte; (c) you shall not use any metatags or other “hidden text” using Forte’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Forte Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Forte Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Forte Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Forte Properties. Any future release, update or other addition to the Forte Properties shall be subject to the Terms. Forte, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Forte Properties terminates the licenses granted by Forte pursuant to the Terms.
We are not responsible for any third-party materials that are used in connection with the Services.
2.3 Third-Party Materials. As a part of the Forte Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Forte to monitor such materials and that you access these materials at your own risk.
In order to access certain features of the Services, you will need to register an account.
3.1 Registering Your Account. In order to access certain features of the Forte Properties, including to reserve and/or participate in a Lesson, you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered a user account on the Website (each, an “Account”). Users of all ages, including children under the age of thirteen (13), may access and use the Platform. As part of booking a Lesson, each Student must supply valid payment card information; for any Student who is a child under the age of eighteen (18), the payment card information must be supplied by such Student’s parent/guardian (“Parent”), must be the payment card information of that Parent, and the Parent must also provide their name and email address. By entering your card payment information (or if you are under the age of eighteen(18), having your Parent enter their payment card information), you authorize Forte’s Payment Processor (as defined below) to charge that payment card information a $1 fee promptly upon booking a Lesson (“Verification Charge”).
You are responsible for providing accurate data and updating your profile to keep all data accurate and true.
3.3 Registration Data. When registering an Account for the Services you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”) as part of your User Profile; and (2) maintain and promptly update the Registration Data and your User Profile to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account (and if you are a Parent supervising a minor Student, you are responsible for all activities that occur under such minor Student’s Account). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Forte reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Forte Properties if you have been previously banned from the Forte Properties.
You are responsible for providing all necessary equipment and software.
3.4 Necessary Equipment and Software. To use the Forte Properties, at a minimum, you need a computer or tablet connected to the internet via the Chrome browser, with a camera and microphone (either external or internal). You must provide all equipment and software necessary to connect to the Forte Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Forte Properties.
4. Teaching Services. If you are a Teacher, you agree to the following:
These terms apply to you if you are a Teacher. You represent yourself to be competent to provide the teaching services.
You are responsible for complying with all laws and standards.
4.2 You assume complete responsibility for all teaching services you provide to Students, including your treatment of such Students, and for compliance with all laws, regulations, and professional ethical guidelines and standards pertaining to your provision of teaching services and interactions with Students.
You will not represent yourself as an employee, contractor or agent of Forte.
4.3 You shall not represent yourself to any Students or other Users of the Platform that you are an employee, contractor or agent of Forte.
If you are a Student, you agree to pay the fees for the Lessons you receive through the Platform. You give us permission to have those payments processed.
(a) Payment Terms for Students. As a Student (or Parent of a minor Student), you agree to pay any applicable Marketplace Fee, the Lesson Fee, and Cancellation Fees (each, as defined herein and collectively, the “Fees”). The total Fees to be paid by you for individual Lessons will be presented to you when you schedule the Lesson on the Platform. The Fees charged for each Lesson are based on the rates of the Teacher you have selected for the Lesson and the length of the Lesson you have reserved (the “Lesson Fee”) plus a Marketplace Fee (as defined herein) applied by Forte. The “Marketplace Fee” is the standard service fee charged by Forte for the hosting and operation of the Platform, including payment processing fees, that is in effect when you reserve a Lesson. You must provide Forte’s Payment Processor with a valid credit card accepted by Forte’s Payment Processor, or any payment product network accepted by us (“Payment Provider”) in order to purchase any of the options offered on the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing Forte’s third party payment processor (Stripe, as described in Section 5.5) with your credit card number and associated payment information, you agree that Forte is authorized to immediately charge your account for all fees and charges due and payable to Forte hereunder and that no additional invoice, notice or consent is required. Forte reserves the right at any time to change its prices and billing methods, either immediately upon posting on Forte Properties or by e-mail delivery to you.
If you are a Teacher, you will receive all payments for each Lesson you’ve completed through Stripe.
(b) Payment Terms for Teachers. As a Teacher, you will set the amount for each Lesson Fee that will be charged to the Students. Once you have provided a Lesson to a Student through the Platform in accordance with these terms, you will receive an electronic transfer of funds through Stripe in an amount equal to your Lesson Fee generally within three business days after you have confirmed to us that a Lesson Fee should be charged, but in no event more than one week after such confirmation by you, subject to these terms.
You will let us know within 30 days if you would like to dispute any payments.
5.2 Disputes. You must notify us in writing within thirty (30) days after receiving your credit card statement or funds transfer, as applicable, if you dispute any of our charges on that statement or payment, otherwise such dispute will be deemed waived. Billing disputes should be notified to the following e-mail address: [email protected].
If you are a Student and cancel a Lesson outside of the Teacher’s cancellation window, you will be charged the full Lesson Fee.
5.3 Cancellation. Each Teacher will set their own cancellation policy and the amount of time before a lesson required to cancel a Lesson without penalty. If you, as a Student, cancel outside of the Teacher’s cancellation window, or your Teacher cancels at any time, you will not be charged for the Lesson; however, if you, as a Student, cancel within the Teacher’s cancellation window, you will be charged the full Lesson Fee and applicable Marketplace Fee. Forte reserves the right to establish, remove and/or revise our cancellation policy or cancellation fees at any time in our discretion.
Please contact us if you are not satisfied with a Lesson and would like a refund. We will investigate.
5.4 Refunds. In the event that a Student is not satisfied with a Lesson, Student will inform Forte via [email protected], and Forte will conduct an investigation. Forte reserves the right, in our sole discretion, to issue a refund to the Student for the Lesson after it completes such an investigation, and may withhold Teacher fees in the event of any such complaint.
Additional terms apply for Stripe’s payment processing services.
You may not engage with Teachers (or vice versa) outside the Platform for the Lessons.
5.6 Anti-Circumvention. Students shall not engage Teachers, and vice versa, outside of the Platform, whether directly or indirectly, for the Lessons. In the event a Student or Teacher attempts to engage the other for Lessons outside of the Platform, without limiting any available other remedies, Forte shall have the right to immediately terminate such Account(s), without notice, with no liability and no further obligation to such Student and Teacher.
6. Responsibility for Content
You are responsible for all Content that you make available through our platform.
6.1 Types of Content. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Forte Properties (collectively, “Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not Forte, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise share or make available (“Make Available”) through the Forte Properties (“Your Content”), and that you and other Users of the Forte Properties, and not Forte, are similarly responsible for all Content they Make Available through the Forte Properties (“User Content”).
We do not regularly (but may) pre-screen any Content shared on the Platform.
6.2 No Obligation to Pre-Screen Content. You acknowledge that Forte has no obligation to pre-screen Content (including, but not limited to, User Content), although Forte reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that Forte may use Your Content for screening for purposes of monitoring safety of children and our Users. In the event that Forte pre-screens, refuses or removes any Content, you acknowledge that Forte will do so for Forte’s benefit, not yours. Without limiting the foregoing, Forte shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
You agree that you (and Your Content) will not violate the Terms or engage in any prohibited conduct.
6.3 Content and Use Guidelines. In connection with your access to and use of the Services, you will not, and will ensure that Your Content that you Make Available on the Services does not:
(a) violate any law, regulation, or court order;
(b) violate, infringe, or misappropriate the intellectual property, privacy, publicity, moral or “droit moral,” or other legal rights of any third party;
(c) submit, post, share, or communicate anything that is, or that incites or encourages, action that is, explicitly or implicitly: illegal, abusive, harassing, threatening, hateful, racist, derogatory, harmful to any reputation, pornographic, indecent, profane, obscene, or otherwise objectionable (including nudity);
(d) send advertising or commercial communications, including spam, or any other unsolicited or unauthorized communications;
(e) stalk, harass, threaten, or harm any third party;
(f) impersonate any third party;
(g) participate in any fraudulent or illegal activity, including phishing, money laundering, or fraud; or
(h) advocate, encourage, or assist any third party in doing any of the foregoing.
We may record Lessons for child safety reasons.
We are not obligated to store any content on Forte Properties.
6.5 Storage. Unless expressly agreed to by Forte in writing elsewhere, Forte has no obligation to store any of Your Content that you Make Available on the Forte Properties. Forte has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Forte Properties. You agree that Forte retains the right to create reasonable limits on Forte’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Forte in its sole discretion.
Forte owns all right to Forte’s intellectual property.
7.1 Forte Properties. Except with respect to Your Content and User Content, you agree that Forte and its suppliers own all rights, title and interest in the Forte Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, Platform, the Services, or the Forte Properties.
We own “Forte”, “Forte Connect” and other related trademarks in connection to our Services.
7.2 Trademarks. “Forte”, “Forte Connect”, and other related graphics, logos, service marks and trade names used on or in connection with the Forte Properties are the trademarks of Forte and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Forte Properties are the property of their respective owners.
You do not have any right to anyone else’s Content that appears on Forte Properties.
7.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Forte Properties.
You own your content; Forte does not.
7.4 Your Content. Forte does not claim ownership of Your Content. However, when you post or publish Your Content on or in the Forte Properties, you represent that you own and/or have a right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, as you take such actions on the Forte Properties. By way of example, you must have the license rights to post the sheet music that you post for your Student(s) or Teacher(s) to use for the Lessons.
You grant us a license to use Your Content solely for operating and providing our services to you.
7.5 License to Your Content. Subject to any applicable account settings that you select, Forte may use Your Content solely for operating and providing the Forte Properties to you. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Forte, are responsible for all of Your Content that you Make Available on or in the Forte Properties.
7.6 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Forte.
7.7 Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter.
You grant us a license to use your feedback in connection with providing the Services.
7.8 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Forte through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Forte has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Forte a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Forte Properties.
Students can post reviews about Teachers. We are not responsible for any reviews posted.
7.9 Reviews. The Services make available the opportunity for Students to rate and/or review Teachers. Such reviews are opinions of the individual Students or Parents and are not the opinion of Forte, and have not been verified by Forte. Forte shall have the right, but not the obligation to monitor or review any reviews at any time. Forte reserves the right to refuse to post or remove any material submitted or posted in any review. Notwithstanding the foregoing, you acknowledge that Forte is under no obligation to edit or modify any information available in any reviews or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a review. Forte does not assume liability for reviews or for any claims for economic loss resulting from such ratings and reviews.
8. User Conduct
As a registered User of the Website and Services, you are subject to certain restrictions.
8.1 General. While using or accessing the Forte Properties you agree that you will not, under any circumstances:
(a) Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account status;
(b) Interfere with or damage Forte Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(c) Fail to honor any transaction agreed to by you, unless the Teacher fails to comply with the terms of such transaction;
(d) Post false, inaccurate, misleading, defamatory or libelous content;
(e) Take any action that may undermine our feedback or ratings systems;
(f) Bypass our robot exclusion headers, interfere with the working of the Forte Properties, or impose an unreasonable or disproportionately large load on our infrastructure;
(g) Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; or
(h) Use the Forte Properties to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers.
We have the right to monitor for security, and remove any Content.
8.2 Investigations. Forte may, but is not obligated to, monitor or review the Forte Properties and Content at any time for security, non-compliance, or legal reasons. Without limiting the foregoing, Forte shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Forte does not generally monitor user activity occurring in connection with the Forte Properties or Content, if Forte becomes aware of any possible violations by you of any provision of the Terms, Forte reserves the right to investigate such violations, and Forte may, at its sole discretion, immediately terminate your license to use the Forte Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
You are responsible for all interactions with other users on the Website or Services.
9. Interactions with Other Users
You are solely responsible for your interactions with other users of the Forte Properties and any other parties with whom you interact through the Forte Properties, including Teachers; provided, however, that Forte reserves the right, but has no obligation, to intercede in such disputes. You agree that Forte will not be responsible for any liability incurred as the result of such interactions. YOU UNDERSTAND THAT Forte MAY, BUT IS NOT OBLIGATED TO CONDUCT CRIMINAL BACKGROUND CHECKS OR EVALUATE THE CREDENTIALS OF ANY STUDENT OR TEACHER. Forte MAY, BUT IS NOT OBLIGATED TO, INQUIRE INTO THE BACKGROUNDS OF ITS STUDENTS OR TEACHER OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS STUDENTS OR TEACHERS. Forte MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF STUDENTS OR TEACHERS. Forte RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES) AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
We are not responsible for any content posted by other users.
9.1 Content Provided by Other Users. The Forte Properties may contain User Content provided by other users. Forte is not responsible for and does not control User Content. Forte has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
We may link to certain websites not owned by us, which are not subject to these Terms. You access those sites at your own risk.
9.2 Third-Party Services. The Forte Properties may contain links and/or integrate with third-party websites and/or services (“Third-Party Services”). When you click on a link to or otherwise access a Third-Party Service, we will not warn you that you have left the Forte Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Forte. Forte is not responsible for any Third-Party Services. Forte provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or their products or services. You use Third-Party Services at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
If we are sued by another party as a result of something you’ve done, you’ll cover the costs.
10. Indemnification. You agree to indemnify and hold Forte, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the “Forte Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Forte Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any user; or (e) your violation of any applicable laws, rules or regulations. Forte reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Forte in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the Forte Properties.
11. Disclaimer of Warranties
This is our disclaimer of legal liability for the quality or reliability of our Services.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE FORTE PROPERTIES IS AT YOUR SOLE RISK, AND THE FORTE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. FORTE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) FORTE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE FORTE PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE FORTE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE FORTE PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE FORTE PROPERTIES WILL BE CORRECTED. FORTE MAKES NO GUARANTEE WITH RESPECT TO ANY TEACHERS CONNECTED TO STUDENTS THROUGH THE PLATFORM.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE FORTE PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE FORTE PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. FORTE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FORTE OR THROUGH THE FORTE PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
We are not liable for conduct of third parties.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT FORTE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD FORTE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
We are not liable for conduct of other users.
11.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE FORTE PROPERTIES. YOU UNDERSTAND THAT FORTE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE FORTE PROPERTIES. FORTE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE FORTE PROPERTIES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE FORTE PROPERTIES.
(a) FORTE MAKES NO WARRANTY THAT ANY SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE LESSONS WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FORTE MAKES NO WARRANTY OR GUARANTEE REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY SESSION, TEACHING SERVICES, OR USER CONTENT OBTAINED THROUGH THE FORTE PROPERTIES.
(b) WHILE WE MAY HELP FACILITATE THE RESOLUTION OF DISPUTES AMONG USERS THROUGH VARIOUS PROGRAMS, WE HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF TRANSACTIONS, THE TRUTH OR ACCURACY OF USERS’ CONTENT, THE ABILITY OF END USERS TO INITIATE TRANSACTIONS, THE ABILITY OF A TEACHER TO ACCEPT TRANSACTIONS, OR THAT A TEACHER WILL ACTUALLY HONOR A DEAL.
12. Limitation of Liability
These are the limits of legal liability we may have to you.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL FORTE PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE FORTE PROPERTIES OR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT FORTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE FORTE PROPERTIES OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE FORTE PROPERTIES; (2) ANY DEALS OFFERED THROUGH THE SERVICES; (3) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE FORTE PROPERTIES; (4) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (5) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON FORTE PROPERTIES; OR (6) ANY OTHER MATTER RELATED TO THE FORTE PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
We will not be liable to you for amounts greater than $50.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL FORTE PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY FORTE AS A RESULT OF YOUR USE OF THE FORTE PROPERTIES IN THE SIX MONTHS PRECEDING THE DATE ON WHICH YOU FIRST ASSERT YOUR CLAIM. IF YOU HAVE NOT PAID FORTE ANY AMOUNTS IN THE SIX MONTHS PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, FORTE’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
12.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12.4 User Content. FORTE PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
12.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FORTE AND YOU.
We may terminate or suspend your rights to use our Services at any time.
13. Termination or Suspension of Services by Forte. Forte may terminate or suspend your right to use the Forte Properties at any time for any or no reason by providing you with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice. We may cancel unconfirmed Accounts or Accounts that have been inactive for a long time, or modify or discontinue our Services. Without limitation, Forte may terminate or suspend your right to use the Forte Properties if you breach any provision of the Terms or any policy of Forte posted through the Forte Properties from time to time; if Forte otherwise finds that you have engaged in inappropriate and/or offensive behavior; if Forte believes you are creating problems or possible legal liabilities; if Forte believes such action will improve the security of our community or reduce another User’s exposure to financial liabilities; if Forte believes you are infringing the rights of third parties; if Forte believes you are acting inconsistently with the spirit of these Terms; or if despite our reasonable endeavors, Forte is unable to verify or authenticate any information you provide. In addition to terminating or suspending your Account, Forte reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Even after your right to use the Services is terminated or suspended, these Terms will remain enforceable against you.
You may terminate the Services by closing your Account.
13.1 Termination of Services by You. If you want to terminate the Services provided by Forte, you may do so by closing your Account.
13.2 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of such Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Notwithstanding the foregoing, please note that we may be required to keep such information and not delete it (or to keep this information for a certain time, in which case we will comply with your deletion request only after we have fulfilled such requirements). When we delete any information, it will be deleted from the active database, but may remain in our archives. We may also retain your information for fraud or similar purposes. Forte will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
We reserve the right to investigate and refer any matters to legal authorities if we become aware of any violations or criminal activities.
14.1 Violations. If Forte becomes aware of any possible violations by you of the Terms, Forte reserves the right to investigate such violations. If, as a result of the investigation, Forte believes that criminal activity has occurred, Forte reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Forte is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Forte Properties, including Your Content, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for Student service; (5) protect the rights, property or personal safety of Forte, its Users or the public; or (6) in connection with all enforcement actions or investigations or other government officials, as Forte in its sole discretion believes to be necessary or appropriate.
14.2 Breach. In the event that Forte determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Forte Properties, Forte reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Forte) that you have violated the Terms;
(b) Delete any of Your Content provided by you or your agent(s) to the Forte Properties;
(c) Discontinue your registration(s) with any of the Forte Properties, including the Services;
(d) Notify and/or send Content to, and/or fully cooperate with, the proper law enforcement authorities for further action; and/or
(e) Pursue any other action which Forte deems to be appropriate.
You may not re-register for Forte Properties if we have discontinued your access for violating the Terms.
14.3 No Subsequent Registration. If your registration(s) with or ability to access the Forte Properties is discontinued by Forte due to your violation of any portion of the Terms or for any other inappropriate conduct, as determined by Forte in its sole discretion, then you agree that you shall not attempt to re-register with or access the Forte Properties through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Forte reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
Even though you may be able to access the website in certain countries, that does not mean that the Services are available in those countries.
15. International Users. This Website can be accessed from countries around the world and may contain references to Forte Properties and Content that are not available in your country. These references do not imply that Forte intends to announce such Forte Properties or Content in your country. The Forte Properties are controlled and offered by Forte from its facilities in the United States of America. Forte makes no representations that the Forte Properties are appropriate or available for use in other locations. Those who access or use the Forte Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
If you believe that your work has been copied and posted on the Website or Services in a way that constitutes copyright infringement, please contact our copyright agent.
16.1 Infringement. Forte respects the intellectual property of others, and we ask our Users to do the same. Each User is responsible for ensuring that their Content does not infringe or misappropriate any third party copyright or other intellectual property rights. It is Forte’s policy to access of any User who repeatedly infringes copyright upon prompt notification to Forte by the copyright owner or the copyright owner’s legal agent.
16.2 Filing a DMCA Notice to Remove Copyrighted Content. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent with a written notice containing the following information: (i) your name, address, telephone number, and email address; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where on the Website the material that you claim is infringing may be found, sufficient for Forte to locate the material (e.g., the URL); (iv) a statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law; (v) a statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) your electronic or physical signature. You may submit this information, or any counter notice, to the Forte’s Copyright Agent by email, with the subject line “DMCA Notices” to: [email protected] or offline by delivery to 450 Park Avenue South, 3rd Floor, New York, NY 10016 Attention: DCMA Notice LessonHome, Inc. Forte may disclose any communications concerning DMCA notices or other intellectual property complaints with third parties, including the Users who have posted the allegedly infringing material. If you have questions about the legal requirements of a DMCA notice, please contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(c)(3), for more information. If you have questions about the legal requirements of a DMCA counter-notification, please contact an attorney or see Section 512(g)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(g)(3), for more information.
In the unlikely event we end up in a legal dispute, you agree to arbitrate disputes in the manner outlined here.
17. Dispute Resolution. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires U.S. users to arbitrate disputes with Forte and limits the manner in which you can seek relief from us.
17.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Forte agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Forte may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Forte may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.
You agree you will first attempt to resolve disputes through this informal process. If we can’t resolve a dispute by the informal process outlined above, then we must resolve through arbitration rather than in court.
17.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and Forte. If that occurs, Forte is committed to working with you to reach a reasonable resolution. You and Forte agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Forte therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Forte that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [email protected] or regular mail to our offices located at 450 Park Avenue South, 3rd Floor, New York, NY 10016.The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
You cannot join a jury trial for any disputes you have related to Forte Properties.
17.3 Waiver of Jury Trial. YOU AND FORTE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Forte are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
You cannot join a class action lawsuit for any disputes you have related to Forte Properties.
17.4 Waiver of Class and Other Non-Individualized Relief. YOU AND FORTE AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 17.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 17.9 (Batch Arbitration) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Forte agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in New York, New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Forte from participating in a class-wide settlement of claims.
17.5 Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Forte agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and otherwise agree, or the Batch Arbitration process discussed in subsection 17.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
You and Forte agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
17.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under subsection 17.9 (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
17.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
17.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Forte need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
17.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Forte agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Forte by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Forte.
You and Forte agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
17.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 450 Park Avenue South, 3rd Floor, New York, NY 10016, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, any e-mail you have submitted to us through the Website or Services, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms of Service will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
17.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Forte as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
17.12 Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Forte makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Forte at: 450 Park Avenue South, 3rd Floor, New York, NY 10016, your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. Forte will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
18. General Provisions
You agree that we can communicate with you electronically.
18.1 Electronic Communications. The communications between you and Forte use electronic means, whether you visit the Forte Properties or send Forte e-mails, or whether Forte posts notices on the Forte Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Forte in an electronic form, including via e-mail, text message, and push notifications; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Forte provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. You agree that texts may be generated by automatic telephone dialing systems. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. If you wish to opt out of our promotional calls or text messages, you may do so by following the instructions provided in the enrollment text message.
You release us from all legal actions or claims arising out of your use of our services.
18.2 Release. You hereby release Forte Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Forte Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites or services of any kind arising in connection with or as a result of the Terms or your use of the Forte Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
We are entering the Terms with you and you agree you won’t transfer your rights to anyone else without our consent.
18.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Forte’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
We are not liable for things that are not in our control, like natural disasters.
18.4 Force Majeure. Forte shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
You can contact us by email for any questions or complaints.
18.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Forte Properties, please contact us at [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
New York law applies to these Terms.
18.6 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
You give us permission to contact you through the Services or via email for any notices under the Terms.
18.7 Notice. Where Forte requires that you provide an e-mail address, you are responsible for providing Forte with your most current e-mail address. In the event that the last e-mail address you provided to Forte is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Forte’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Forte at the following address: 450 Park Avenue South, 3rd Floor, New York, NY 10016. Such notice shall be deemed given when received by Forte by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
If any part of the Terms cannot be enforced, the rest of the Terms stand.
18.8 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.9 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
You promise to comply with any applicable export control laws and that you are not subject to any U.S. trade restrictions or sanctions.
18.10 Export Control. You may not use, export, import, or transfer the Forte Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Forte Properties, and any other applicable laws. In particular, but without limitation, the Forte Properties may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Forte Properties, 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 also will not use the Forte Properties for any purpose prohibited by U.S. law. You acknowledge and agree that products, services or technology provided by Forte are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Forte products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
You can report complaints to the contact information listed in this Section.
18.11 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
The Terms control our relationship.
18.12 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.