Standard Terms and Conditions
Last Updated: June 12, 2023
FORTRESS TECHNOLOGY SOLUTIONS, INC.
STANDARD TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions of Service are incorporated by this reference into the applicable Order (defined below)(collectively, the "Agreement") entered into between Fortress Technology Solutions, Inc. ("Fortress") and the person identified as Client in the Order Form (each of Client and Fortress is hereafter referred to as a "Party" and, together, as the "Parties"). All capitalized words used but not defined herein shall have the meaning given them in the Order Form.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THESE TERMS AND CONDITIONS OF SERVICE AND THE DOCUMENTS REFERENCED HEREIN (ALL OF WHICH BY THIS REFERENCE ARE INCORPORATED HEREIN AND MADE A PART HEREOF), UNDERSTANDS IT, AND AGREES TO BE BOUND BY THEM.
Fortress reserves the right to modify these Terms and Conditions of Service and any policies posted on our website which affects the Application, including any Service or implementation schedule, at any time upon written notice to you. If we make any changes, we will notify you by revising the revision and its effective date and adding a statement to the log-in screen or sending you an email notification, as applicable. Your continued use of the Application after any such modification and notice shall be deemed, conclusively, as your acceptance of all such modifications. Your only right with respect to any dissatisfaction with any modifications of these Terms of Conditions of Service pursuant to this provision is to terminate your subscription as provided herein. Notwithstanding the foregoing, Client may not revise the Order Form except by a written agreement signed by a duly authorized representative of each Party.
1. Definitions.
“Agreement” means, collectively, these Terms and the applicable Order. To the extent of any conflict between any provision of these Terms and of the applicable Order, the provision in these Terms will control, except where specific reference is made in the Order to such provision superseding any conflicting provision in these Terms.
“Applications” means Fortress’s cloud‐based property management software applications, websites, and, as applicable, mobile applications as described in the Order, together with any associated Updates and User Materials, and which will be available to Client and its Authorized Users in accordance with the terms and conditions of the Agreement.
“Application Data” means data, with the exception of Client Data, generated by Client’s or Authorized User’s use of the Application.
“Authorized Site” means each property, site or location managed or owned by Client and for which Client is authorized under the Order to use the Applications. Each such property, site or location will be identified by Client in the Order, or in a listing attached thereto (either if which may be referred to as the “Authorized Site Listing”), and such identification may be modified by Client as needed by providing a Customer Order Form with a modified Authorized Site Listing (provided the total number of Authorized Sites or Units may not be reduced without Fortress’ written consent except in the case where Client has ceased to manage such Authorized Sites). Each Customer Order Form submitted to Fortress subsequent to the submission of the original Customer Order Form for the purpose of providing a modified Authorized Site Listing shall maintain the same original Effective Date but shall designate a new effective date, referred to on the Order as the “Addendum Effective Date,” for purposes of identifying the effective date of the revised Authorized Site Listing. The submission of a revised Customer Order Form with an Addendum Effective Date for a modified Authorized Site listing will not change the Original Effective Date, the Initial Term, or any renewal term.
“Authorized User” means any employee or other agent of Client together with, if Client is a property management company managing properties owned by a third‐party, any employee or other agent of the applicable owner of an Authorized Site, that in either case has executed an End User License Agreement and is provided with a username by Fortress to access the Applications by or at the request of Client solely for use in connection with one or more Authorized Sites.
“Client” means the Fortress client executing an Order to which these Terms apply. The Client is referred to on the Order as the “Customer.”
“Client Data” means data input or provided by Client for upload to the Applications or generated by the Applications based upon input of data by Client (such as calculations, compilations, tabulations, summarizations, or aggregation results). Client Data does not include Application Data.
“Client Data Breach” means the unauthorized acquisition, access, disclosure, or use of Client Data within Fortress’s possession, custody, or control.
“Confidential Information” means all proprietary, non‐public or confidential information of a Party, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” provided it is the type of information a reasonable person would consider proprietary and non‐public given the nature of the information and circumstances under which given. In each case, as applicable: (a) Fortress’s Confidential Information includes, without limitation, Applications (including the Agreement, Order Form, and pricing relating thereto), or any other aspect of Fortress’s business or operations which may include, at a minimum, all information relating to trade secrets, research, development, specifications, formulae, algorithms, prototypes, computer programs, records, data, designs, concepts, ideas, methods, techniques, processes, samples, analyses, materials, marketing information, projections, plans, costs, prices, customers, suppliers, financial statements, business plans, business opportunities, personnel, memoranda, notes, legal documents, and patents (whether pending or duly registered, as well as improvements, and any know‐how related thereto), all of the above whether exposed to Client intentionally or not; and (b) Client’s Confidential Information includes Client Data. Confidential Information does not include information that: (i) is or becomes a part of the public domain through no act or omission of the receiving Party; (ii) was in the receiving Party’s lawful possession prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing party; or (iii) is lawfully disclosed to the receiving party by a third‐party without restriction on disclosure.
“Credentials” means any username provided by Fortress to, and any temporary password provided by Fortress or subsequent password utilized by, Client, any employee or other agent of Client, or, if Client is a property management company managing properties owned by a third‐party, any employee or other agent of the applicable owner of an Authorized Site, to access the Applications solely for use in connection with one or more Authorized Sites.
“Feedback” means any information, suggestions, enhancement notations, comments, or ideas and other feedback that Client, or any of Client’s directors, officers, employees, agents, and consultants or any Authorized User may disclose, transmit, suggest, or offer to Fortress with respect to the Application and/or the Services.
“Implementation Services” means any implementation and training services provided by Fortress to Client in connection with its implementation and configuration of the Applications, including any such services specifically described in the applicable Order. Except as may be separately agreed to in any written statement of work or other agreement, Implementation Services do not include, nor will Fortress be required to provide, custom development or code level modifications with respect to the Applications, and no IP Rights in the Application or any implementation or configuration thereof are or will be transferred to Client.
“IP Rights” means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing: copyrights (including derivative works), trademarks, trade names, trade secrets, know‐how, patents, any other intellectual and industrial property and proprietary rights, of every kind and nature throughout the universe and however designated, and including all registrations, applications, renewals, and extensions thereof.
“Order” means a Fortress Technology Solutions, Inc. Customer Order Form or other ordering document entered into by Client and Fortress incorporating these Terms by reference.
“Services” means, collectively, the Implementation Services and the Support Services. For the avoidance of doubt, Services does not include Fortress’s making the Applications available to Client hereunder.
“Support Services” means any maintenance and support services provided by Fortress to Client in connection with its use of the Applications, including any such services specifically described in the applicable Order.
“Updates” means any modification (i.e., patches, bug fixes, and enhancements) to the Applications made available by Fortress. Updates do not include additional modules and/or capabilities for which Fortress charges a separate license fee to its customers.
“User Materials” means documentation provided by Fortress to Client to describe (i) the functionality, capabilities and screens of the Applications, (ii) how to train Authorized Users and/or use the Applications, or (iii) limits, requirements and restrictions on the use of the Applications. User Materials are Fortress’s Confidential Information and may be provided in paper or electronic form.
2. Applications and Services.
(a) License. Subject to the terms and conditions of the Agreement including, without limitation, Section 3(b), Fortress hereby grants to Client the non‐exclusive, non‐transferable, limited right for its Authorized Users to access and use the Applications as provided by Fortress for each Authorized Site during the term of the relevant Order.
(b) Services. Fortress will provide Client with the Services in a professional and cooperative manner and otherwise in accordance with the provisions of the Agreement. Notwithstanding the foregoing, Client acknowledges that Fortress’s ability to provide the Services, and particularly its ability to meet any timelines specified in the applicable Order with respect to any Implementation Services, depends in large part on the receipt from Client of reasonable cooperation and the performance of Client’s obligations hereunder. Fortress will not be responsible for any delay in the delivery of any Services or access to or use of the Application resulting from any lack of cooperation from Client or failure on the part of Client to fulfill its obligations hereunder. Fortress’s services will include, where possible, the reasonable development of Updates upon reasonable notice to Fortress by Client of the need for patches or bug fixes.
(c) Data Security. Fortress shall implement commercially reasonable measures to prevent the unauthorized disclosure of Client Data. Fortress agrees to maintain a commercially reasonable cyber liability insurance policy . Client acknowledges and understands that its use of the Applications and receipt of the Services will involve transmission of Client Data over the Internet, and over various networks, only part of which may be owned and/or operated by Fortress. Client further acknowledges and understands that Client Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Fortress is not responsible for any Client Data which is delayed, lost, altered, intercepted or stored during the transmission of any such data whatsoever across networks not owned and/or operated by Fortress, including, but not limited to, the Internet and Client’s local network. In the event of a Client Data Breach, Fortress will notify Client in accordance with applicable law.
3. Client’s Responsibilities.
(a) Coordination. Client will designate one or more persons, with such designation not to exceed five (5) persons, to coordinate with Fortress regarding the Applications and Client’s receipt of the Services. Client’s designated person(s) will be available to Fortress as needed to enable all Services to be performed efficiently, and will participate in meetings, training, and other activities related to the Applications and receipt of the Services as reasonably requested by Fortress.
(b) Restrictions on Use. Client will: (i) ensure that the Applications are only used by Authorized Users and only for the Authorized Sites for the purposes of managing and operating Client’s business at such Authorized Sites in the ordinary course of business; (ii) utilize the Applications in accordance with User Materials; (iii) not sublicense, distribute, sell or otherwise transfer any access or use of the Applications (including any data contained in the Applications and reports or analyses developed using the Applications) in a manner not expressly authorized in this Agreement or any applicable Order Form; (iv) take reasonable measures to maintain the security of its computer systems and the secrecy of all Credentials; (v) take reasonable measures to ensure that Authorized Users abide by the provisions of the Agreement; (vi) not reproduce, copy, modify, translate, reverse engineer, decompile, or disassemble the Application; (vii) not attempt to develop any derivative works, reports, or services from the Application or use of the Application; (viii) not upload, store, or maintain malicious code, unauthorized code, viruses, worms, Trojan horses, or malware in the Application; (ix) not access or use the Application for any purpose that is competitive with Fortress or for purposes of developing or promoting any competing product or service; (x) not use the Applications for Chain letters, junk mail, "spamming", solicitations or bulk communications of any kind including but not limited to distribution lists to any person who has not given specific permission to be included in such a list; (xi) not permit access to or use of the Applications by a direct competitor of Fortress; (xii) not use the Applications to create a hypertext link from any web site controlled by you or otherwise, to the Applications without the express written permission and authorization of Fortress; (xiii) not use any device, software or other instrumentality to interfere or attempt to interfere with the proper working of the Applications; (xiv) not take any action that imposes an unreasonable or disproportionately large backend load or burden on our information technology infrastructure; (xv) not use the Applications in any threatening, libelous, slanderous, defamatory, obscene, inflammatory, pornographic, discriminatory, or otherwise offensive manner; (xvi) not use the Applications for any purpose that is illegal, unlawful, or prohibited by this Agreement or any applicable Order Form;(xvii) not interrupt, disrupt, alter, destroy, impair, restrict tamper, or otherwise affect the proper operation and performance of the Applications in any way; (xviii) not take any action that imposes an unreasonable or disproportionately large backend load or burden on our information technology infrastructure; (xix) not use any robot, spider, other automatic device, or manual process to monitor, scrape, or copy the Applications or any Fortress Information contained therein, without the prior express authorization and consent from Fortress or an authorized Fortress representative (such consent is deemed given for standard search engine technology employed by Internet search websites to direct individuals to the Applications as applicable);and (xx) be responsible for any breach of the Agreement by Authorized Users.
(c) Responsibilities. Client will be solely responsible to establish and maintain any necessary software, hardware, services and other elements necessary for the proper access to and use of the Applications, including, without limitation: (i) the computer, operating system and related hardware and software used by each Authorized User; (ii) any data or files that are not part of the Applications, including back‐up copies of such data; (iii) Internet access; and (iv) training of each Authorized User (except to the extent any training is included as part of the Implementation Services). Client will be responsible for management of users with access to Applications (i.e., adding Client users, removing Client users timely, managing Client users’ permissions, etc.). Client will promptly notify Fortress of any suspected or actual unauthorized use of the Applications of which Client becomes aware.
(d) Client Data. Client is solely responsible for the accuracy and completeness of all Client Data as input by an Authorized User into the Applications. Client hereby grants Fortress the right to collect, store, process and transmit Client Data as necessary to make the Applications available and provide the Services as set forth herein. By providing any Client Data to Fortress, Client represents that it has all necessary rights therein to permit same and to permit Fortress to collect, store, process and transmit such Client Data as required for it to make the Applications available to Client and provide the Services. Notwithstanding the foregoing, Fortress may use in any way Client Data related to the Applications for purposes of supporting and improving the Applications and Services and for any other lawful business purposes. Client grants Fortress a non‐exclusive, fully sublicensable, fully paid‐up, royalty‐free, worldwide, perpetual right and license to access, store, process, and use Client Data in connection with the provision of Services under this Agreement and for any other lawful purpose. Subject to the foregoing, all Client Data remains the exclusive property of Client.
(e) Other Data. Fortress reserves the right to use Application Data and aggregate, generic, or de‐identified data related to the Applications for any lawful business purposes.
(f) Third‐Party Software. Applications may require the installation and/or use of third‐party software (such as a compatible browser). Client will be responsible for obtaining the right to use such third‐party software directly, and all rights and obligations with regard to the third‐party software will be governed by the license agreement between Client and the third‐party licensor. Fortress has no responsibility or liability whatsoever for any third‐party software, including, without limitation, any warranty or support obligations.
(g) Security Concerns. In the event the Client becomes aware of a potential security concern, failure, or incident, Client shall notify Fortress by emailing incident@fortresstech.io as soon as the potential security concern has been identified.
4. Fees.
(a) Payments. Client will pay Fortress the implementation fees, subscription fees, and other fees described in the Order. Unless the Order specifies different payment terms, all such fees are due and payable within 30 days of the date of Fortress’s invoice. Any payment not timely received by Fortress will accrue interest at a rate of eight percent (8%) percent per year, or the highest rate allowed by applicable law, whichever is less. In the event a refund is due to Client, such refund is due and payable within 30 days of a request by Client for the issuance of the refund. Any refund not timely received by Client will accrue interest at a rate of eight percent (8%) percent per year, or the highest rate allowed by applicable law, whichever is less.
(b) Suspension of Access. In the event of any non‐payment of fees by Client, Fortress may, in addition to any other remedies available to it, following three (3) business days’ written notice to Client, suspend access to the Applications for Client and its Authorized Users until such payments have been received by Fortress. Under no circumstances will any such suspension constitute a breach under the Agreement, and Fortress will not be liable for any damages, costs or expenses incurred or suffered by Client as a result of any such suspension.
(c) Taxes. All fees charged by Fortress hereunder are exclusive of use, sales, or excise taxes of a type typically payable by a service user or consumer of such services. Client will be responsible for all such use, sales, or excise taxes arising out of or related to the Agreement or the services provided (but which specifically shall exclude those taxes based on Fortress’s employment of employees, ownership and use of property, company operations, or net income from any source).
5. Term and Termination.
(a) Term. The Agreement will continue in effect for the duration of the initial term specified in the Order (or if no such initial term is specified, for one year) from the Original Effective Date as specified in the Order. Unless the Order specifies otherwise, the Agreement will automatically renew for additional 1‐year terms at the end of such initial term, and each subsequent 1 year‐renewal term, unless either Party provides written notice of non‐renewal no later than sixty (60) days prior to the expiration of the then‐current term. Fortress reserves the right to modify any fees upon not less than ninety (90) days prior written notice to Client with any rate increase to be effective as of the beginning of the next renewal term that occurs after the 90 days written notice period. Additionally, Fortress reserves the right to modify any fees related to cost increases by integration partners, who are engaged in offering services to the Client as outlined in the Order Form, upon not less than thirty (30) days prior written notice to the Client. This type of rate increase is to be effective once the 30 days written notice has expired.
(b) Termination
(i) Either Party may terminate the Agreement by written notice, effective immediately, in the event of a material breach by the other Party; provided that, the non‐breaching Party has given written notice of such breach to the breaching Party and the breaching Party fails to cure such breach within thirty (30) days of such notice.
(ii) Either Party may also terminate this agreement by written notice, effective immediately, in the event the other Party (A) transfers all or a substantial portion of its assets to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy, (B) has a proceeding commenced by or against it for relief under any bankruptcy or similar law that is not dismissed within sixty (60) days, or (C) is adjudged bankrupt. In addition to the foregoing, should Client cease to manage any Authorized Site, Client may terminate this Agreement with respect to such Authorized Site upon five (5) days written notice to Fortress or by providing a modified Authorized Site listing in the manner prescribed in the Order Form.
(c) Effects of Termination. Upon expiration or termination of the Agreement: (i) all amounts payable or accrued to Fortress under the Agreement will become immediately due and payable; and (ii) Fortress will terminate access to the Applications for Client and its Authorized Users. Fortress will maintain a copy of Client Data for a period of not less than one (1) year following termination of the Agreement. Provided Client is current with all payments due hereunder and requests in writing a copy of such information prior to the expiration of such one year period, Fortress will provide Client with a copy of all Client Data resident in the Application at the time of termination in Fortress’s then standard electronic format. Upon the expiration of such one‐year period, Fortress may purge all such Client Data from its systems. Accrued payment obligations will survive expiration or termination of the Agreement.
6. Warranties, Warranty Disclaimer and Limitation of Liability.
(a) Mutual Warranties. Each Party represents and warrants to the other that: (i) it has the right to enter into the Agreement and to fully perform its obligations hereunder; and (ii) it will comply with all laws, rules and regulations applicable to its business.
(b) Application Warranty. Fortress warrants to Client that the Applications, throughout the term of the Agreement, will perform materially as described in the User Materials when accessed and used in accordance with such User Materials and with the hardware, Internet connectivity and third‐party software as may be reasonably recommended by Fortress from time to time. The foregoing will not, however, be deemed a warranty that the Applications will operate without interruption or error (any such warranty being expressly disclaimed by Fortress). Client’s sole and exclusive remedy for any breach of this warranty (“Application Warranty”) is Fortress’s repair or replacement of the particular nonconforming Application. Fortress shall use commercially reasonable efforts to make such repair or provide such replacement, and in the event that such commercially reasonable efforts by Fortress are unsuccessful, Fortress will refund to Client the amount paid to Fortress by Client for the particular nonconforming Application for the period it was nonconforming pursuant to the Agreement (not to exceed three (3) months) and reduce the monthly access fees accordingly going forward, with such refund and reduction in fees to be Client’s sole and exclusive remedy therefor.
(c) Services Warranty. Fortress warrants that the Services will be provided in a professional manner. Client’s sole and exclusive remedy for any breach of this warranty is Fortress’s reperformance of the particular nonconforming Services at Fortress’s expense. Such remedy will only be available if Client has promptly (and in any event within 90 days of the performance of the subject non‐conforming Services) notified Fortress of such non‐conformance, such notice to set forth in reasonable detail the particular Services at issue and the non‐conformance.
(d) Intellectual Property Remedies. In the event that the Applications or Services, or any part thereof, are or may be found to infringe upon the intellectual property of a third‐party, without limiting Client’s other rights or remedies hereunder, Fortress, at its sole expense, shall timely undertake to procure for Client the right to continue such use of the allegedly infringing Applications or Services. If such right cannot be timely procured, then Fortress shall, at Fortress’s sole expense, (i) modify, alter, or adjust any such allegedly infringing Applications and Services to render them non‐infringing, but materially equivalent functionally; (ii) substitute such allegedly infringing Applications or Services with replacements that are non‐infringing, but materially functionally equivalent; or (iii) if Fortress using Fortress’s best efforts is unable to accomplish item (i) or (ii) above, refund to Client amounts actually paid or payable by Client for the allegedly infringing Applications or Services. THIS SECTION 6(D) SETS FORTH CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND FORTRESS’S SOLE LIABILITY AND OBLIGATION, WITH RESPECT TO ANY CLAIM ALLEGING THAT THE APPLICATIONS OR SERVICES INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD‐PARTY.
(e) DISCLAIMER. ALL WARRANTIES NOT SET FORTH IN THIS SECTION 6 ARE DISCLAIMED BY FORTRESS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF NON‐INFRINGEMENT OF THIRD‐PARTY RIGHTS, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. FORTRESS FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR FREE.
(f) LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL FORTRESS OR CLIENT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, EVEN IF FORTRESS OR CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR SUCH LOSS OR DAMAGE WAS FORESEEABLE. FURTHER, FORTRESS’S OR CLIENT’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT IN TORT, CONTRACT OR OTHERWISE (BUT NOT WITH RESPECT TO ITS INDEMINTY OBLIGATIONS UNDER SECTION 7(a) AS TO FORTRESS OR 7(b) AS TO CLIENT, BELOW) IS NOT TO EXCEED THE AMOUNT OF ALL FEES PAID OR PAYABLE BY CLIENT TO FORTRESS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY (THE “GENERAL CAP”). IN NO EVENT WILL FORTRESS’S OR CLIENT’S TOTAL LIABILITY WITH RESPECT TO ITS INDEMINTY OBLIGATIONS UNDER SECTION 7(a) OR 7(b), RESPECTIVELY, EXCEED TWO TIMES THE GENERAL CAP.
7. Indemnification.
(a) Fortress will indemnify, defend, and hold Client harmless from and against any damages, loss, costs or liabilities (including legal fees and the cost of enforcing this indemnity) arising out of or resulting from any claim against Client by a third‐party that alleges that the use of the Applications by Client or its Authorized Users in accordance with the Agreement infringes such third‐party’s IP Rights, but only if (i) Fortress is notified promptly in writing of such claim, (ii) Client provides reasonable assistance and information to Fortress to perform its duties under this section, and (iii) Fortress is given sole control of the defense and all related settlement negotiations. This section will not apply where any such claim arises out of use of the Application in combination with any third‐party software or service or Client Data. If a claim of infringement as described above is brought or threatened, Fortress may terminate the Agreement upon written notice to Client. This section provides Client’s exclusive remedy for any infringement claims or damages.
(b) Client will indemnify, defend, and hold Fortress and its directors, officers, employees, agents, and consultants harmless from and against any damages, loss, costs or liabilities (including legal fees and the cost of enforcing this indemnity) arising out of or resulting from any claim against Fortress and/or its directors, officers, employees, agents, and consultants (i) alleging that Fortress’s receipt and processing of any Client Data in accordance with this Agreement infringes any third‐party’s IP Rights as a result of the acts of Client, (ii) arising from Client’s use or misuse of third‐party software, or (iii) Client’s misuse or unauthorized use of the Applications.
8. Confidentiality and IP Rights.
(a) Confidential Information. Each Party, together with Client’s employees and agents, and Authorized Users, may have access to the other’s Confidential Information and, except to exercise its rights or perform its obligations under the Agreement, neither Party will disclose or use any of the other’s Confidential Information without the other’s prior written consent.
(b) Exceptions. If a Party is required under a final judicial or governmental order to disclose any of the other’s Confidential Information, the Party may disclose the other’s Confidential Information provided that they give the other sufficient prior notice to contest such order and/or to seek a protective order or other appropriate remedy. If a protective order or a similar order is not finalized by the date by which a party must comply with the disclosure request, they shall disclose only such portions of the other’s Confidential Information as required by such order and exercise reasonable efforts to obtain assurances that any Confidential Information subject to disclosure under this Section will be afforded confidential treatment prior to such disclosure. This Section will survive any termination of this Agreement.
(c) Intellectual Property. Fortress and its licensors own all right, title and interest in and to the Applications, including any IP Rights. All rights not expressly granted herein are reserved. Client agrees not to (i) copy, modify, or reverse engineer the Applications, in whole or in part, make derivative works based upon the Applications or any part thereof, or use the Applications to develop any products or services, without Fortress’s prior written approval or (ii) sell, license, rent, or transfer the Applications to any third‐party without Fortress’s prior written approval.
(d) Ownership of Feedback. Client hereby assigns to Fortress, Client’s entire right, title and interest in all Feedback (and all IP Rights therein, to the extent that same are owned by Client) and in any modifications or improvements to or for the Applications or Services which Fortress alone or together with Client may make based in whole or in part on any Feedback.
(e) Remedies. An actual or threatened breach of a Party’s obligations with respect to the other’s Confidential Information may cause irreparable harm to the other Party and, accordingly, in such event each Party will be entitled to equitable relief to protect its interests. Such remedy will be in addition to any other remedy that the non‐breaching Party may have.
9. Miscellaneous.
(a) Assignment. The Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns; provided, however, that the Agreement and the rights of the Parties hereunder may not be directly or indirectly transferred or assigned, in whole or in part, by assignment, operation of law, change of control or otherwise without the prior written consent of the other Party. Notwithstanding the foregoing, Fortress or Client may transfer or assign the Agreement as a whole, to any successor, to all or substantially all of its business or assets, whether by sale of stock or assets, merger, operation of the law, or otherwise. Any transfer or assignment in violation of the foregoing will be void. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the Parties hereto, their successors and permitted assigns.
(b) Third‐Party Beneficiaries. Except as set forth in Section 7 above with respect to indemnified Parties, nothing in the Agreement, express or implied, is intended to confer upon any third‐party any rights or remedies under or by reason of the Agreement.
(c) Notices. All notices required or permitted under the Agreement must be given in writing, addressed, (i) in the case of Client, according to the contact information specified in the Order, and (ii) in the case of Fortress, to 118 16th Avenue S., Suite 200, Nashville, TN 37203, Attn: Legal. Any Party may update the address(es) for notice to it by providing written notice to the other Party of the new address(es). All such notices shall be (a) delivered by a nationally recognized overnight courier or by certified mail, return receipt requested, or (b) sent by email (which shall be effective upon issuance), provided that such notice is then sent within three (3) business days for delivery by a nationally recognized overnight courier or by certified mail, return receipt requested. Receipt of a notice will occur upon the earlier of (i) actual receipt by the receiving Party, or (ii) the 3rd business day after it is sent. Notwithstanding the foregoing, routine correspondence involving normal business operations and modifications, including updates to the listing of Authorized Sites, may be issued by email.
(d) Severability; Waiver. Each provision of the Agreement is severable from all other provisions of the Agreement. If one or more of the provisions of the Agreement is prohibited or declared invalid under applicable law, such provisions are to be enforced to the fullest extent permitted by applicable law and the remaining provisions of the Agreement will remain in full force and effect. The failure by a Party to enforce any provision of the Agreement, or to require at any time performance by any other Party of any provision hereof, are to in no way be construed to be a waiver of such provision, nor in any way affect the validity of the Agreement or any part hereof, or the right of the Party thereafter to enforce each and every such provision in accordance herewith.
(e) Entire Agreement. The Agreement contains the entire agreement of the Parties relative to the Applications, may not be changed orally, and supersedes all prior agreements and understandings between the Parties relative to the Applications. No change or attempted waiver of any provision of the Agreement will be binding unless expressed in a writing executed by the Parties.
(f) Governing Law and Dispute Resolution. The Agreement is to be construed and interpreted in accordance with the laws of the state of Tennessee and the United States, excluding any choice of law principle that may require the application of law of another jurisdiction. Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, is to be settled exclusively by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules before one independent and disinterested arbitrator in Davidson County, Tennessee. Consistent with the expedited nature of arbitration, pre‐hearing information exchange is to be limited to the reasonable production of relevant, non‐privileged documents explicitly referred to by a Party for the purpose of supporting relevant facts presented in its case, carried out expeditiously. The arbitrator will grant such legal or equitable remedies and relief in compliance with applicable law that the arbitrator deems just and equitable, but only to the extent that such remedies or relief could be granted by a federal, state, or local court located in Davidson County, Tennessee and further to the extent such remedies are not specifically excluded or limited herein. The arbitrator must render their award by application of the substantive law of the state of Tennessee and U.S. federal law and must render a written opinion setting forth findings of fact and conclusions of law with the reasons therefor stated. The award rendered by the arbitrator will be final and specifically enforceable under applicable law, and judgment may be entered upon it in any court having jurisdiction thereof. Either Party may seek injunctive relief in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. Any claim by Client must be brought within twelve (12) months following the date such claim arose.
(g) Relationship of the Parties. The relationship of the Parties is one of service provider and service client, and this Agreement shall not create any joint venture, partnership or other similar relationship by and between the Parties. Neither Party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other Party or bind the other Party in any respect whatsoever.
(h) Force Majeure. Except for the obligation to pay fees, neither Party will be liable for and each Party will be excused from, any failure to deliver or perform or for delay in delivery or performance due to causes beyond its reasonable control, including, but not limited to, governmental actions, fire, work stoppages, shortages, civil disturbances, transportation problems, interruptions of power or communications, failure of suppliers or subcontractors, natural disasters, other potential disasters or catastrophes such as epidemics, pandemics, or quarantines, or acts of God. For the avoidance of doubt, to the extent Client’s access to or use of the Applications is prevented in any material respect as a result of any such force majeure event, the fees due from Client during such period shall be abated.
(i) Counterparts; Headings. The Order may be executed in any number of counterparts and each fully executed counterpart will be deemed an original. Copies of this Agreement and any related Order shall be as effective as the original. All section headings and captions used in the Agreement are for convenience and will not affect the interpretation of the Agreement.
(j) Survival. Notwithstanding expiration or termination of the Agreement for any reason, rights and obligations which may reasonably be interpreted or construed as surviving the expiration or termination of the Agreement shall survive the expiration or termination of the Agreement.