Financial Crime Academy Terms of Service
Upon completing the registration process, you irrevocably and unequivocally accept and consent to be bound by the Terms of Service governing the use of this service
Last updated: November 2022
Please carefully read these Financial Crime Academy Terms of Service (these “Terms of Service”), which are a binding contract between you and Financial Crime Academy. (“FCA”) that governs the use of a FCA account and the products and services available through a FCA account, exempts FCA and other persons from liability, specifies the jurisdiction for the resolution of disputes and contains other important provisions before registering for a FCA account or submitting an order for or using any product or service available through a FCA account.
By using a FCA account or a product or service available through a FCA account, you acknowledge and signify that you have read, understand and agree to these Terms of Service. If you do not agree to these Terms of Service, then you may not register for a FCA account or use any product or service available through a FCA account.
1. Definitions and Interpretation
1.1 Binding Agreement: These Terms of Service are a binding agreement between you and FCA regarding the use of an Account and Products. By registering for an Account or submitting an order for or using a Product, you acknowledge and signify that you have read, understood and agreed to the most current version of these Terms of Service. If you do not accept and agree to the most current version of these Terms of Service, then you may not register for an Account or submit an order for or use any Product.
1.2 Definitions: In these Terms of Service, the following terms have the following meanings and other capitalized terms have the meaning set out elsewhere in these Terms of Service:
(a) “Account” means a valid and subsisting account with FCA for use of Products;
(b) “Assessment” means an assignment, exercise, quiz or other assessment required to be completed in respect of a Course;
(c) “Certificate” means a certificate issued by FCA evidencing successful completion of a Course or bundle of Courses;
(d) “Course” means an online course provided or made available by FCA for use through an Account;
(e) “Course Materials” means the videos, files, documents and other materials and Assessments provided or made available by FCA in respect of a Course;
(f) “Products” means the Courses, Course Materials and other products and services that FCA may provide or make available from time to time for use through an Account pursuant to these Terms of Service; and
(g) “Representatives” means directors, officers, employees, contract workers, agents and other personnel and representatives.
1.3 Other Agreements: These Terms of Service are in addition to other agreements (collectively, the “Other Agreements”) between you and FCA (collectively the “Parties” and each a “Party”), which are available on FCA’s website at www.financialcrimeacademy.org (the “Website”). If there is a conflict or inconsistency between these Terms of Service and the Other Agreements, then the Other Agreements will take priority and govern regarding the specific subject matter to which they apply, and these Terms of Service will take priority and govern regarding all other matters.
1.4 Changes: FCA in its discretion may change these Terms of Service at any time and from time to time, without any prior notice, by posting the changed Terms of Service on the Website. The changed Terms of Service are effective immediately on posting on the Website, unless the changed Terms of Service expressly state otherwise. It is your responsibility to check the “Last Updated” date at the top of these Terms of Service and review any changes since the previous version. By using an Account or submitting an order for or using a Product, you signify your unconditional acceptance and agreement to be bound by the changed Terms of Service. You may not change these Terms of Service in any manner.
2. Permitted Users/Use
2.1 Permitted Users: You may not register for an Account or submit an order for any Product if you are under the age of majority in the jurisdiction in which you reside or if you cannot form a legally binding contract. If you are under the age of majority, then your parent or legal guardian may register an Account on your behalf and submit orders for Products on your behalf. You may not register for an Account or submit an order for any Product if you do not accept these Terms of Service or the applicable Other Agreements, if you breach these Terms of Service or any Other Agreements, if you are located in a jurisdiction where access to or use of a Product or the Website is prohibited by law, or if FCA has prohibited you from registering for an Account or ordering a Product. Notwithstanding the foregoing or any other provision of these Terms of Service, FCA reserves the right in its discretion and for its sole convenience to refuse to provide Products to you or any other person.
2.2 Permitted Use of Accounts and Products: Subject to these Terms of Service and all applicable laws, you may only use an Account and Products for your own lawful, personal, non-commercial purposes, in the manner permitted by these Terms of Service and subject to all applicable Other Agreements and applicable laws. Use of an Account or Product for any other purpose or in any other manner is strictly prohibited.
2.3 General Restrictions/Prohibitions: Without limiting the generality of section 2.2, you will not: (a) use your Account or any Product in a way that interferes with or threatens, damages, disrupts, compromises or degrades the integrity, functionality, operation, performance or security of your Account or the Product or FCA’s systems or data, or to attempt to gain unauthorized access to FCA’s systems or data; (b) index, crawl, catalogue, mirror, frame, scrape, cache or otherwise collect or mine any data from your Account or any Product for any purpose whatsoever, using any technologies, tools or methods (including robots, spiders, crawlers or other automatic devices, programs or methodologies) whatsoever; (c) license, sublicense, grant, sell, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, create any interest in, or otherwise give or make available or permit the use of your Account or any Product to or for the benefit of any other person; (d) alter, attempt to circumvent, destroy, obscure, conceal, modify or remove any notices (including proprietary rights notices), proprietary codes or locks, means of identification, digital rights tools or management information, security or control measures, or agreements on, in or in relation to your Account or any Product; (e) attempt to circumvent the ordinary navigational structure, technical delivery systems or display of your Account or any Product or attempt to access or use your Account or any Product or FCA’s systems or data by any means that is not purposely made available to you by FCA; (f) copy any ideas, features or functions of your Account or any Product or create a product or service using the ideas, features or functions of your Account or any Product; or (g) permit, assist or encourage any other person to do any of the foregoing in this section 2.3.
3. User Information
3.1 Accurate Information: To create an Account or to order a Product, FCA may require that you provide certain information about yourself (including your legal name, residential address, email address, other contact information and in some instances details of your government-issued identification documents) and payment information. You represent and warrant that all information you provide to FCA is true, accurate, current and complete, and that you will update the information from time to time so that it remains true, accurate, current and complete. FCA will rely on the information that you provide. FCA is not under any obligation to verify the truth, accuracy, currency or completeness of any information you provide, but FCA may do so in its discretion, and you hereby consent to FCA making reasonable inquiries as FCA considers appropriate to verify the information you provide. You hereby authorize FCA to create and permanently retain records of all information that you provide to FCA and all communications between you and FCA and to use, retain and disclose that information as reasonably necessary to provide Products and to otherwise perform FCA’s obligations and exercise FCA’s rights under these Terms of Service and applicable Other Agreements. You are solely responsible and liable for all loss, damage and expense that you, FCA or any other person may suffer or incur as a result of your submission of any false, inaccurate, out of date or incomplete information, your failure to promptly update your information if it changes, or any other breach of your obligations under this section 3.
3.2 Communications: You authorize FCA to: (a) accept communications it receives from you by means of the Website or email as if those communications had been given directly by you in writing and signed by you; (b) disclose your communications to FCA’s affiliates and services providers; and (c) respond to your communications through the Website, by email or other means of communication as FCA considers appropriate. Communications that you send to FCA are not effective unless and until they are processed by the responsible FCA representative. FCA may refuse to process communications that you send to FCA, or may reverse the processing of any communications that you send to FCA, at any time in FCA’s discretion and without any notice or liability to you or any other person, including if FCA believes the communication to be fraudulent or unlawful or defective, inaccurate or incomplete due to a technical malfunction.
4.1 Application: This section 4 does not apply to Products that are made available by FCA without a fee.
4.2 Misprints/Errors: FCA endeavours to provide current and accurate information on the Website, but misprints, errors, inaccuracies, omissions (including incorrect details for a Product) and other errors may sometimes occur. FCA reserves the right to correct any misprint, error, inaccuracy or omission at any time without prior notice or liability to you or any other person, and change at any time the Products advertised on the Website, the prices, fees, charges and specifications of those Products and any other Website content, all without any notice or liability to you or any other person. If you submit an order for a Product for which incorrect information was displayed on the Website, FCA will provide you with a reasonable opportunity to cancel your order.
4.3 Availability: Products advertised on the Website may not be available when ordered or thereafter. If you order a Product that is not available, FCA will notify you by email. FCA reserves the right in its discretion to refuse to accept or cancel any order you submit and to limit quantities available for sale or sold to you.
4.4 Prices: All prices and other amounts appearing on the Website are quoted in US dollars, unless expressly indicated otherwise. FCA reserves the right to change prices advertised on the Website at any time. The total price of your order will include the price of the ordered Products plus all applicable delivery charges, handling charges and taxes. The price and applicable taxes and charges will appear on the completed order form, and will be charged to your specified payment service when your order is accepted by FCA or as otherwise set out in your order.
4.5 Orders: The advertisements on the Website are invitations to make offers to purchase Products and are not offers to sell. Your properly completed and delivered order constitutes your offer to purchase the Products referenced in the order. Your order will be deemed accepted by FCA when FCA processes payment for your order or sends (by email) an order acceptance notice to you, whichever is sooner.
4.6 Order Cancellation: Because FCA endeavours to complete orders for Products quickly, you may not cancel an order for a Product except in accordance with FCA’s refund policy, below, as amended by FCA from time to time.
4.7 Payment: You may pay for your purchases with the payment methods specified on the Website. FCA or its service providers will obtain payment pre-approval from your payment service when your order is processed. The purchase payment will be charged to your payment service if and when your order is processed or as otherwise set out in your order. Except as expressly set forth in these Terms of Service or applicable Other Agreements or otherwise required by applicable law, pre-paid fees are not refundable under any circumstances.
4.8 Delivery: FCA will deliver Products to you electronically, as specified in your applicable accepted order.
5. Proprietary Rights
5.1 Ownership: Except for the limited license expressly set out in section 5.2, (a) as between the Parties, FCA will at all times solely own and retain all rights, title and interest (including all intellectual property rights) throughout the world in, to and associated with Products; and (b) neither you nor any other person will acquire any right, title or interest in, to or associated with any Product.
5.2 License: Subject to the provisions of these Terms of Service and your payment of all applicable fees, FCA hereby grants you a non-exclusive, personal, non-sublicensable, non-transferable, restricted and limited license to access and use each Course Material made available to you in accordance with the restrictions and requirements set forth and referenced in these Terms of Service. You may use Course Materials solely for your personal participation in a Course and not for any other purpose whatsoever. Unauthorized use of Course Materials is strictly prohibited.
5.3 Trademarks: Financial Crime Academy, the FCA logo and other related trademarks and symbols are registered or unregistered trademarks, service marks and trade names owned or licensed by FCA. Any unauthorized use of those trademarks is strictly prohibited, and nothing on the Website or in these Terms of Service or any Other Agreements will be construed as granting, by implication, estoppel, or otherwise, any licence or right to use any of those trademarks and service marks.
5.4 Feedback: If you give to FCA any feedback (including any review, comments, ideas or suggestions for corrections, enhancements or improvements) regarding a Product or Account or the Website, then FCA and its successors, assigns and licensees may use the feedback for any and all purposes (including to support, maintain and improve Products, Accounts and the Website) without providing any compensation or attribution to you or any other person. FCA may in its discretion modify your feedback (e.g. for grammar and spelling) prior to use.
5.5 Reservation: All rights not expressly granted by these Terms of Service or any Other Agreements are reserved by FCA.
6. User Content
6.1 User Content: In these Terms of Service: (a) “Content” means text (including notes, questions, comments and reviews), information, graphics, photographs, images, audio, video, and other materials and forms of data or communication, and includes Templates; (b) “Template” means a business template distributed through or otherwise made available on the FCA Marketplace on the Website; and (c) “User Content” means Content (including Templates) posted, submitted, contributed, transmitted or provided by you to the Website, including the FCA Marketplace, discussion forums and other FCA functionalities generally made available to you.
6.2 Acknowledgement: You acknowledge that User Content may be made available to other users of Products or publicly available on the Website, and that User Content might be copied, disclosed, shared or otherwise made available to other persons. FCA has no responsibility or liability for or control over the use of User Content by other users of Products or the Website or any other person.
6.3 Responsibility/Compliance: Without limiting the generality of any other provision of these Terms of Service, you are solely responsible and liable for User Content. You will ensure that User Content: (a) complies with all applicable laws and community standards (including the laws of the jurisdiction in which you are located); (b) does not infringe, violate or misappropriate the rights of any person; and (c) does not contain, reference or distribute any information, messages, images or other materials that are abusive, contain nudity, deceptive, defamatory, derogatory, discriminatory, false, fraudulent, harassing, harmful, hateful, indecent, objectionable, obscene, offensive, pornographic, profane, racist, sexist, sexually explicit, threatening, violent, vulgar or otherwise objectionable, or which depict, encourage or tend to incite any unlawful activities. FCA is not obligated to screen or verify User Content, and does not guarantee the accuracy, veracity or completeness of any User Content. You are solely responsible and liable for your selection and use of User Content shared by other users and your interactions with other users. FCA may remove User Content at any time and for any reason without notice or liability to you or any other person.
(a) Content License/Waiver: You hereby grant and agree to grant FCA and its affiliates, suppliers, service providers and licensees a non-exclusive, world-wide, unrestricted, transferable, sublicensable, royalty-free, fully paid-up, perpetual, irrevocable right and license to use and exploit (including access, view, store, copy, reproduce, combine with other works, distribute, transmit, display and perform) User Content in any manner and for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing any compensation or attribution to you or any other person, without any liability whatsoever, and free from any obligation of confidence or other duties. You hereby grant to each other user of Products and the Website a non-exclusive, non-sublicensable, non-transferable, restricted and limited license to use User Content made available by you for the sole purpose of the user’s lawful, internal business purposes. You hereby unconditionally and irrevocably waive and agree to waive in favour of FCA and its affiliates, suppliers, service providers and licensees and all other users all moral rights and rights of authorship and attribution that you have or may have in, to or associated with User Content (the “Content License/Waiver”).
6.4 Representation/Warranty: You represent and warrant to FCA and all other users of Products and the Website that: (a) you own User Content or otherwise have all requisite rights, licenses, permissions, consents, powers, authorizations, approvals and waivers to use User Content and grant the Content License/Waiver; (b) the creation, possession and use of User Content does not and will not violate or infringe the rights (including intellectual property, privacy and personality rights) of any other person, breach any duty or obligation (contractual or otherwise) owed by you to any other person, or violate any applicable laws; and (c) to the best of your knowledge, the information contained in User Content is true, accurate, current and complete. If you becomes aware that any information in User Content is untrue, inaccurate or incomplete, you will promptly contact FCA.
6.5 Review/Removal and Deletion: FCA is not obligated to monitor, review, screen, police, edit or remove User Content, although FCA reserves the right to do so in its discretion and without any notice or liability to you or any other person. FCA reserves the right to refuse to post or to remove any User Content, in whole or in part, that FCA in its discretion considers to be unacceptable, undesirable or in violation of these Terms of Service or any Other Agreements, without any notice or liability to you or any other person. You acknowledge that you may not be able to remove User Content from the Website and copies of User Content might continue to exist and be accessible by other persons through the Website or otherwise (including by persons who have previously downloaded, copied, received or otherwise obtained User Content). FCA is not responsible or liable for any removal or deletion of User Content.
6.6 Authorization/Consent: You acknowledge that FCA may in its sole discretion report any information regarding unlawful conduct, including information regarding unlawful conduct contained in User Content, to applicable law enforcement agencies at any time without any notice or liability to you or any other person.
6.7 Retention by FCA: For greater certainty, and notwithstanding the foregoing in this section 6 or any other provision of these Terms of Service, FCA may include copies of User Content in FCA’s archives and back-up systems and may permanently retain copies of User Content for legal compliance and administrative purposes.
6.8 Third Party Content: You acknowledge that Content may be submitted, posted, displayed, transmitted or provided to or through the Website by other users (whether to other users of Products or publicly available on the Website) (“Third Party Content”). FCA does not guarantee the accuracy, veracity or completeness of any Third Party Content. FCA has no responsibility or liability for or control over the conduct of other users of Products or the Website or any Third Party Content. You are solely responsible for your selection and use of Third Party Content, and you access and use Third Party Content entirely at your own risk. You will not make any claim against FCA arising from, connected with, or relating to your use of any Third Party Content.
7.1 Credentials: You must use a valid user name and password for your Account that complies with FCA’s technical requirements and policies (collectively “Credentials”).
7.2 Restrictions/Requirements: You may have only one (1) Account. Except as expressly set forth in sections 7.7 and 8: (a) you may not create an Account for any other person; and (b) your Account and Credentials are personal to you and may not be shared with or use by any other person. You are fully responsible and liable for maintaining the confidentiality of your Account and Credentials and for any and all use and misuse of your Account and Credentials (including all transactions using your Account or Credentials) and for all resulting loss and damage.
7.3 Linked Accounts: FCA may permit you to register for an Account through an account you hold with a third party social media site (such as LinkedIn). By registering for an Account using a third party social media site, you agree that FCA may access information related to your account with the third party social media site and you agree to comply with all terms and conditions of the third party social media site regarding your use of an Account through the third party social media site. Your use of, and interactions with, a third party social media site as a result of accessing an Account through the third party social media site are at your own risk. Third party social media sites are independent from FCA, and FCA does not endorse, and has no responsibility or liability for or control over, third party social media sites.
7.4 Notices: You will immediately notify FCA by email to [email protected] if you discover any unauthorized use of your Account or if you know or suspect that your Credentials have been lost or stolen or become known to or used by any other person.
7.5 Reliance/Verification: FCA may act upon any communication that is given through your Account or by using your Credentials. FCA is not under any obligation to verify the actual identity or authority of any person using your Account or Credentials, but FCA in its discretion may at any time require verification of the identity of any person seeking to access your Account and may deny access to and use of your Account if FCA is not satisfied with the verification.
7.6 Cancellation/Suspension/Termination: FCA in its discretion may cancel or suspend your Account or reject, revoke or require that you change or renew your Credentials at any time without notice or liability to you or any other person, including if your Account is inactive. If your Account is suspended, cancelled or terminated by FCA, you may not create another Account without FCA’s express prior written consent.
7.7 Accounts for Children: You may create an Account for a child for whom you are the parent or legal guardian, and in those circumstances you and your child are jointly and severally responsible and liable for the Account and related Credentials.
8. Authorized Representatives
8.1 General: FCA in its discretion may permit you to use procedures prescribed by FCA to appoint another person or legal entity (an “Authorized Representative”) to act as your agent and representative in all dealings with FCA, including for purposes of creating, administering and using your Account, submitting and processing your orders for Products and related transactions, and exchanging on your behalf documents and information (including your confidential information, personal information and test scores) with FCA.
8.2 Authorization/Responsibility: By appointing your Authorized Representative in accordance with FCA’s prescribed procedures, you authorize FCA to deal with your Authorized Representative as your authorized agent and representative for all purposes unless and until your appointment of your Authorized Representative is terminated as set forth in section 8.3. Without limiting the generality of the foregoing in this section 8.2, you hereby acknowledge and agree that: (a) your Authorized Representative may accept and agree on your behalf to all of FCA’s applicable customer agreements and policies (including these Terms of Service and all applicable Other Agreements), as amended from time to time; and (b) you are bound by, and fully responsible and liable for, all acts and omissions (including wrongful conduct and use of your confidential or personal information or your Account) by or on behalf of your Authorized Representative.
8.3 Termination: You or your Authorized Representative may terminate the Authorized Representative’s status at any time by sending an email to [email protected]. A termination request submitted by you or your Authorized Representative will not be effective unless and until the request is actually received and processed by FCA’s personnel. FCA in its discretion may terminate your Authorized Representative’s status at any time without any prior notice to you or the Authorized Representative. If your Authorized Representative’s status is terminated, then you alone will have control over your Account (in accordance with applicable procedures prescribed by FCA in its discretion from time to time) and FCA will no longer accept your Authorized Representative’s orders or requests on your behalf.
9. Courses, Course Materials and Certificates
9.1 Course Registration: Your registration for a Course or bundle of Courses is specific to the particular Course or bundle of Courses for which you have registered. You may not cancel your registration for a Course or change the Course specified in your registration, except in accordance with FCA’s refund policy, as amended by FCA from time to time, which is available on the Website.
9.2 Changes to Courses and Course Materials: Notwithstanding any other provision of these Terms of Service, FCA may at any time cancel or otherwise make unavailable or modify any Course or any Course Material, including any Assessments.
9.3 Assessment Integrity: You acknowledge that Assessments are designed to measure a user’s proficiency or other skills based upon spontaneous, unassisted, original answers provided by the user. If you complete an Assessment, you will provide spontaneous, unassisted answers to the Assessment, and you will not give answers that are memorized or copied from other sources (including answers of another user). You will not encourage or assist any other person to cheat on an Assessment or encourage, engage in or assist any act or omission that might compromise the security of an Assessment or impair the integrity of any Assessment.
9.4 Assessment Confidentiality: To ensure the continued integrity of Assessments, you will maintain the confidentiality of the questions contained in an Assessment and your answers to those questions, and you will not disclose any of those questions or your answers to any other person.
9.5 Assessment Requirements – Computer Skills: You acknowledge that Assessments are administered by computer and require basic computer skills (using a mouse and typing), and you will not be entitled to retake an Assessment or receive a refund of fees if you lack the computer skills required to take an Assessment or if your lack of required computer skills adversely affects your performance on the Assessment.
9.6 Assessment Answers: You hereby unconditionally and irrevocably grant and agree to grant to FCA a non-exclusive, world-wide, unrestricted, transferable, sublicensable, royalty-free, fully paid-up, perpetual, irrevocable right and license to use and exploit (including copy, reproduce, publish, republish, translate, upload, post, publicly display, transmit, communicate or make available to the public, or otherwise disclose or distribute), and authorize other persons to use and exploit, your Assessment answers (without disclosure of your name or other identifying information) in any manner and using any and all forms, media and technologies now in existence or developed in the future for any and all purposes, including to advertise, promote and market FCA’s products and services, all without any compensation or attribution to you, and you hereby unconditionally and irrevocably waive and agree to waive in favour of FCA and its successors, assigns and licensees all moral rights and rights of authorship and attribution that you have in, to, or associated with your Assessment answers.
9.7 Irregularities: FCA may in its discretion refuse to score an Assessment, release your results on an Assessment or invalidate your completion of an Assessment if FCA believes that the security of the Assessment or the integrity of your completion of the Assessment have been impaired or compromised for any reason whatsoever, including as a result of administrative errors or cheating or other misconduct by you.
9.8 Certificates: Following your successful completion of the requirements (including all applicable Assessments) for a Course or a bundle of Courses, as determined by FCA in FCA’s sole discretion and subject to these Terms of Service, FCA will grant you a Certificate in respect of the Course or the bundle of Courses. FCA will send or cause to be sent an electronic copy of your Certificate to the email address you provided to FCA. FCA may make additional copies of your Certificate available to you in hard copy or other format for an additional fee.
9.9 Disclosure of Certificate: If you submit a copy of one or more of your Certificates to an institution, association, organization or entity, including a current or potential employer (each an “Authorized Organization”), or if you authorize FCA to disclose a copy of one or more of your Certificates to an Authorized Organization, or if you authorize an Authorized Organization to obtain a copy of one or more of your Certificates from FCA, then you unconditionally and irrevocably consent to FCA disclosing to the Authorized Organization your name and other personal information and a copy of the Certificate, and you agree that FCA is not responsible or liable for the Authorized Organization’s use or disclosure of the disclosed information and the copy of the Certificate.
9.10 No Other Certification: A Certificate granted to you in respect of a Course or a bundle of Courses evidences your successful completion of that Course or bundle of Courses only. Unless otherwise explicitly stated by a credit-granting institution, participation in or completion of a Course or a bundle of Courses does not confer any academic or continuing education credit or any other designation or certification on you.
9.11 Consequences of Breach/Misconduct: Notwithstanding any other provision of these Terms of Service, if you breach these Terms of Service or any Other Agreement then, in addition to all other lawful remedies, FCA may in its discretion: (a) cancel your registration for any and all pending Courses; (b) refuse to score an Assessment completed by you; (c) refuse to accept your registration for any future Courses; (d) refuse to give you a refund of fees paid for Courses; (e) invalidate your completion of an Assessment or a Course; and (f) invalidate any Certificate you received in respect of a Course.
10. Other Matters
10.1 General Representations/Warranties: You represent and warrant to FCA that you have the right, power, capacity and authority to lawfully enter into these Terms of Service and lawfully perform your obligations and exercise your rights under these Terms of Service.
10.2 Technical Requirements: You are solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment (including mobile computing devices and personal computers), software and services (including Internet access) necessary for your use of your Account and Products (including transmission of data to and from FCA).
10.3 Notifications: You will promptly notify FCA if you know of or suspect any unauthorized access to or use of a Product, and on request by FCA you will cooperate with and assist FCA to investigate and respond to the unauthorized access or use (as applicable).
11. Disclaimers, Liability Exclusions/Limitations and Indemnity
11.1 General Disclaimer: You are solely responsible for the use of your Account and the selection and use of Products to achieve your intended results, and you use your Account and Products at your own risk. To the fullest extent permitted by applicable law, Accounts and Products are provided “as is”, “as available” and “with all faults”, and without any representations, warranties, conditions or guarantees of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance, including any representations, warranties, conditions or guarantees of or relating to: accuracy, accessibility, availability, completeness, durability, errors, fitness for a particular purpose, merchantability, non-infringement, lack of viruses or other disabling or harmful code, performance, quality, results, suitability, security, timeliness, title, truthfulness, quiet enjoyment, uninterrupted service or workmanlike effort; all of which are hereby waived by you and disclaimed by FCA to the fullest extent permitted by applicable law. Without limiting the foregoing, FCA does not represent or warrant that any Product will meet your requirements. No oral or written information or advice given by or on behalf of FCA will create any legally binding or effective representation, warranty, condition or promise.
11.2 Liability Exclusions/Limitations: Notwithstanding any other provision of these Terms of Service or any Other Agreements, and to the fullest extent permitted by applicable law: (a) in no event and under no circumstances will FCA Group be liable to you or any other person for any personal injury, emotional distress or any damage or loss (including direct, indirect, incidental, consequential, special, punitive or exemplary damage or loss, loss of profit, loss of revenue, loss of data or information, loss of use, loss of privacy, loss of business, loss of opportunity, loss of productivity or any other commercial damage or loss) arising form, connected with or relating to Accounts or Products (including your use or inability to use your Account or Products) or any related matter; and (b) if notwithstanding the foregoing or any other provision of these Terms of Service or any Other Agreements FCA Group is liable to you or any other person, then in no event and under no circumstances will FCA Group’s total aggregate liability arising from, connected with, or relating to Accounts or Products or any related matter ever exceed the lesser of: (1) the fees that you actually paid to FCA during the three (3) months immediately before the date on which the liability arose; and (2) CDN$50.00. This section 11.2 applies to loss and damage however caused and to liability under any theory (including contract, tort, statute and strict liability), regardless of any negligence or other fault or wrongdoing (including fundamental breach or gross negligence) by FCA or any person for whom FCA is responsible, even if other remedies are not available or do not adequately compensate you or any other person for the loss or damage or the stated remedy fails of its essential purpose, or FCA knew or should have known of the possibility of the loss or damage being incurred.
11.3 Exceptions: The laws in some jurisdictions prohibit or limit the disclaimer of certain warranties and conditions or the exclusion or limitation of certain liabilities, and so the disclaimers and liability exclusions and limitations in these Terms of Service might not apply to you.
11.4 Indemnity: You will defend, indemnify and hold harmless FCA Group from and against any and all losses, damages, costs, expenses (including legal fees), claims, complaints, demands, actions, suits, proceedings, obligations and liabilities (including legal fees and expenses and settlement payments) arising form, connected with or relating to your use of an Account or Products or your negligence, misconduct or breach of these Terms of Service or any applicable Other Agreements. Notwithstanding the foregoing, FCA Group retains the right to participate in the defense of and settlement negotiations relating to any third party claim, complaint, demand, action, suit or proceeding with counsel of their own selection at their sole cost and expense.
11.5 Definition: In this section 11, “FCA Group” means FCA and each of FCA’s corporate affiliates, licensors, suppliers and service providers, and each of their respective directors, officers, employees, contractors, agents, shareholders, distributors and representatives, jointly and severally.
12.1 Suspension: FCA in its discretion may immediately suspend or restrict your Account and your permission to order Products at any time without notice or liability to you or any other person.
12.2 Termination: These Terms of Service as they apply to you are effective unless and until terminated as set forth in this section 12.2. You may terminate these Terms of Service as they apply to you by permanently closing/deactivating your Account. FCA in its discretion may for its sole convenience terminate these Terms of Service at any time by giving a notice of termination to you or by permanently closing/deactivating your Account.
12.3 Consequences of Termination: Notwithstanding any other provision of these Terms of Service, the obligations and liabilities you incur prior to termination of these Terms of Service will survive termination, and sections 1.3, 2, 3, 4, 5, 6, 7.6, 8.2, 9, 11, 12.3 and 13 of these Terms of Service (and all other provisions of these Terms of Service necessary to their interpretation or enforcement) will survive termination and continue to apply and be binding upon you and FCA.
13. General Matters
13.1 Governing Law: These Terms of Service, the Other Agreements, Products, the relationship between you and FCA, and all related matters will be governed by, and construed and interpreted solely in accordance with, the laws of the state of Wyoming, United States and applicable federal laws of the United States, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws and excluding any law that implements the United Nations Convention on Contracts for the International Sale of Goods.
Disputes: The courts of the state of Wyoming, United States will have original and exclusive jurisdiction over any and all disputes arising from, connected with or relating to these Terms of Service, the Other Agreements, Accounts, Products, the relationship between you and FCA or any related matter (each a “Dispute”), and you and FCA each hereby unconditionally and irrevocably submit and attorn to the original and exclusive jurisdiction of those courts regarding those disputes. Notwithstanding the foregoing, FCA may commence legal proceedings against you in the courts of any jurisdiction seeking injunctive relief (or similar urgent legal remedies) to enforce these Terms of Service or to protect FCA’s rights and interests. You will commence legal proceedings regarding a Dispute within twelve (12) months after the Dispute arises, after which time any and all legal proceedings by you regarding the Dispute will be forever barred. Any shorter time limit provided by law remains unaffected.
13.2 Force Majeure: Notwithstanding any other provision of these Terms of Service or any Other Agreements, FCA will not be liable for any delay in performing, or failure to perform, any of its obligations under these Terms of Service or any Other Agreements to the extent performance is delayed or prevented due to any cause or causes that are beyond FCA’s control. Any delay or failure of that kind will not be a breach of these Terms of Service or any Other Agreements by FCA, and the time for FCA’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.
13.3 Miscellaneous: You and FCA are non-exclusive, independent contracting parties, and nothing in these Terms of Service or any Other Agreements or done pursuant to these Terms of Service or any Other Agreements will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between you and FCA. Upon request by FCA, you will execute all further documents and instruments and do all further things as may be reasonably necessary to implement and carry out the provisions and intent of these Terms of Service and applicable Other Agreements. No consent or waiver by FCA to or of any breach by you of these Terms of Service or any Other Agreements will be effective unless the consent or waiver is confirmed in a document that is signed by FCA or will be deemed or construed to be a consent to or waiver of a continuing breach or any other breach by you. FCA’s rights and remedies under these Terms of Service and the Other Agreements are cumulative and not exhaustive or exclusive of any other rights or remedies to which FCA may be lawfully entitled under these Terms of Service or any Other Agreements or at law, and FCA will be entitled to pursue any and all of its rights and remedies concurrently, consecutively and alternatively. If any provision of these Terms of Service or any Other Agreements is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed severed from these Terms of Service or the Other Agreements (as applicable) and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance these Terms of Service or the Other Agreements (as applicable) would fail in their essential purpose. You may not assign these Terms of Service or any Other Agreements or any of your rights, licenses, duties or obligations under these Terms of Service or any Other Agreements. FCA in its discretion may assign these Terms of Service and the Other Agreements and any or all of FCA’s rights, licenses, duties and obligations under these Terms of Service and the Other Agreements. FCA may engage subcontractors to perform FCA’s obligations under these Terms of Service and the Other Agreements. The provisions of these Terms of Service and applicable Other Agreements will enure to the benefit of and be binding upon you and FCA and your respective successors, permitted assigns and personal representatives.
13.4 Interpretation: In these Terms of Service and applicable Other Agreements (each a “Contract Document”): (i) a reference to the Contract Document refers to the Contract Document as a whole and not just to the particular provision in which the reference appears; (ii) a reference in a Contract Document to a section by number is a reference to the appropriate section in the Contract Document; (iii) headings are for reference only and do not define, limit or enlarge the scope or meaning of the Contract Document or any of its provisions; (iv) words importing the singular number only include the plural and vice versa; (v) words importing a gender include both genders; (vi) “person” includes an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, society, and any other legal entity; (vii) “including” and “includes” mean including or includes (as applicable) without limitation or restriction; (viii) “law” includes common law, equity, statutes and regulations, and reference to a specific law includes all regulations made under the law and all amendments to, or replacements of, the law or any regulation made under the law in force from time to time; and (ix) “discretion” or any variation thereof means a person’s sole, absolute and unfettered discretion.
13.5 Complete Agreement/Governing Language: These Terms of Service and all applicable Other Agreements together set forth the entire agreement between you and FCA regarding the subject matter of these Terms of Service and the Other Agreements (including Products), and supersede all prior or contemporaneous communications, representations, negotiations, discussions, agreements, or understandings, whether oral or written, with respect to the subject matter of these Terms of Service and the Other Agreements. Except as expressly set forth in these Terms of Service, these Terms of Service and the Other Agreements may not be modified except by a written document that expressly states that it is an amendment to these Terms of Service or the Other Agreements (as applicable) and is signed by an authorized representative of FCA. You and FCA have expressly requested and required that these Terms of Service and all Other Agreements and all related documents be drawn up in the English language. Subject to applicable law, any non-English translation of these Terms of Service or any Other Agreements provided by FCA is for convenience only, and if there is a conflict or inconsistency between the English version and a non-English translation then the English version will take priority and govern.
If you have any questions or comments regarding these Terms of Service or any Other Agreements, please contact FCA at [email protected].