TERMS OF USE

Effective Date:  April 20, 2020

This Terms of Use Agreement (the “Terms of Use”) governs your access to and use of our proprietary learning management system and online platform (the “Services”). Please read them carefully. These Terms of Use constitute a binding agreement between you and Cultivate Advisors.  As part of these Terms of Use, you agree to comply with the most recent version of our Acceptable Use Policy, which is incorporated by reference into these Terms of Use.  “Cultivate Advisors,” “we,” “us,” or “our” means the applicable Cultivate Advisors entity that entered into the Cultivate Advisors Terms & Conditions or other written agreement (the “Company Agreement”) with you or the person/company/entity that authorized your access to the Services (the “Company”).

By indicating your acceptance of these Terms of Use or accessing or using the Services, you represent that you have read, understand, and agree to be bound by the Terms of Use.  If you do not agree to be bound by the Terms of Use, you may not access or use the Services.  You should print a copy of these terms or save them to your computer for future reference.

PLEASE NOTE THAT THE TERMS OF USE ARE SUBJECT TO CHANGE BY CULTIVATE ADVISORS IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, Cultivate Advisors will make a new copy of the Terms of Use available through the Services.  Please check this page periodically for updates.  Any changes to the Terms of Use will take effect upon their posting and will apply on a going-forward basis, unless otherwise provided in a notice to you.  If you do not agree with any change(s), you shall stop using the Services.  Otherwise, your continued use of the Services constitutes your acceptance of such change(s).

  1. USE OF THE SERVICES.

1.1.             Eligibility.  The Services are intended solely for users who are sixteen (16) years of age or older and authorized by Company to register for and access the Services in connection with a Company Agreement (each, a “User”).  Any registration, use, or access to the Services by any unauthorized user or anyone under sixteen (16) is strictly prohibited and in violation of these Terms of Use.  You represent that you are: (i) at least sixteen (16) years old; (ii) of legal age to form a binding contract; (iii) authorized to create an account as a User; and (iv) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction.  You may access and use the Services only if you can form a binding contract with Cultivate Advisors, and only in compliance with these Terms of Use and all applicable local, state, national, and foreign laws, rules and regulations.

1.2.             Account Registration.  In order to access the Services you may be required to register for an account on the Services.  Your account will allow you to access the applicable Services and functionality that we may establish and maintain from time to time and in our sole discretion. We may implement different types of accounts for different types of Users. You may control your User profile and how you interact with the Services by accessing the functionality that may be made available on the “Settings” or similar page in your account.  When creating your account, you agree to provide true, accurate, current and complete information about yourself and to maintain and promptly update your information to keep it true, accurate, current and complete.  You are responsible for the activity that occurs on your account, and you must keep your account password confidential and secure. You are not allowed to provide a third party access to your Account.  We encourage you to use “strong,” unique passwords.  You must notify Cultivate Advisors immediately of any breach of security or unauthorized use of your account or password.  We will not be liable for any losses caused by any unauthorized use of 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 Cultivate Advisors.

1.3.             Third Party Accounts.  To the extent permitted by the functionality of the Services, you may register for or link your account with a valid account on a third party platform (“Third Party Account”).  By connecting your Third Party Account you are allowing Cultivate Advisors to access your Third Party Account as permitted under the applicable terms and conditions that govern your use of the Third Party Account.  You represent that you are entitled to disclose your Third Party Account login information to Cultivate Advisors and/or grant Cultivate Advisors access to your Third Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Cultivate Advisors to pay any fees or making Cultivate Advisors subject to any usage limitations imposed by such third party platforms.  By granting Cultivate Advisors access to your Third Party Account, you understand that Cultivate Advisors may access, make available and store (if applicable) any information, images, or other content you make available in or through your Third Party Account so that it is available on and through the Services.  Please note that if a Third Party Account or associated service becomes unavailable or Cultivate Advisors’ access to such Third Party Account is terminated by the third-party platform, such content will no longer be available on the Services.  PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY PLATFORMS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNT IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH PLATFORMS, AND CULTIVATE ADVISORS DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH PLATFORMS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN YOUR THIRD PARTY ACCOUNT.

1.4.             Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to the Services.  You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.  By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Services. Cultivate Advisors will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply.

1.5.             Acceptable Use.  To help ensure a safe and productive environment, all Users must comply with our Acceptable Use Policy and any applicable policies established by Company. If you see inappropriate behavior or content, please email us at [email protected] or report it through Services.

1.6.             Interactions with Other Users.  You are solely responsible for your interactions with other Users. We reserve the right but have no obligation to monitor disputes between you and other Users. You acknowledge and agree that you may be exposed to User Content (as defined below) of other Users that is inaccurate, objectionable, or otherwise unsuited to your purpose, and you agree that Cultivate Advisors will not be liable for any harm or damages you allege to incur as a result of any third party User Content. You acknowledge and agree that Cultivate Advisors will have no liability for your interactions with other Users, or for any User’s action or inaction.

  1. CONTENT.

2.1.             User Content.  The Services may allow Users to post, submit or otherwise make available text, images, documents, files, videos or other materials (“User Content”), and to share that content with others.  Company is solely responsible for all User Content that you upload to or make available through the Services (“Company Content”).  Company Content is owned and controlled by the Company as set forth in the Company Agreement.  Company is solely responsible for all Company Content.

2.2.             No Obligation to Pre-Screen User Content.  Cultivate Advisors is not responsible for and does not control, approve, endorse, or make any representations or warranties with respect to User Content.  You acknowledge that Cultivate Advisors has no obligation to pre-screen, review, or monitor User Content, although Cultivate Advisors reserves the right in its sole discretion to pre-screen, refuse or remove any User Content at any time.  By entering into the Terms of Use, you hereby provide your irrevocable consent to such monitoring.  You acknowledge and agree that you have no expectation of privacy concerning the transmission of User Content, including without limitation chat, text, or voice communications.  In the event that Cultivate Advisors pre-screens, refuses or removes any User Content, you acknowledge that Cultivate Advisors will do so for Cultivate Advisors’ benefit, not yours.  Without limiting the foregoing, Cultivate Advisors shall have the right to remove any User Content that violates these Terms of Use, violates the Company Agreement, violates applicable law, or is otherwise objectionable.

2.3.             Advisor Materials.  Except with respect to User Content, you agree that Cultivate Advisors and its suppliers own all rights, title and interest in and to any and all advisory and training materials, blog posts, assessments, documentation, and content, whether printed or available on or through the Services, in written, audio, or video format (collectively, the “Advisor Materials”).  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Advisor Materials.

2.4.             Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to Cultivate Advisors through its suggestion, feedback, forum or similar pages (“Feedback”) is at your own risk and that Cultivate Advisors 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 Cultivate Advisors 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 Services and/or Cultivate Advisors’ business.

2.5.             Advertising Revenue.  Cultivate Advisors reserves the right to display third-party advertisements before, after, or in conjunction with User Content and/or Feedback posted on the Services, and you acknowledge and agree that Cultivate Advisors has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by Cultivate Advisors as a result of such advertising).

  1. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.  It is Cultivate Advisors’ policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Cultivate Advisors by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.  Contact information for Cultivate Advisors’ Copyright Agent for notice of claims of copyright infringement is as follows:  Copyright Agent, HFI Consulting LLC DBA Cultivate Advisors, 549 W Randolph, Suite 400, Chicago, IL 60661, [email protected].
  2. THIRD PARTY LINKS.  The Services may contain links to third-party websites, advertisements, information, materials, products, or services (“Third Party Links”) that are not owned or controlled by Cultivate Advisors.  Cultivate Advisors does not endorse or assume any responsibility for any content or information on or from any Third Party Links. If you access a Third Party Link from the Services, you do so at your own risk, and you understand that these Terms of Use and Cultivate Advisors’ Privacy Policy do not apply to your use of such Third Party Links. You expressly relieve Cultivate Advisors from any and all liability arising from your use of any Third Party Link, including your dealings with or participation in promotions of the applicable third party, payments to and delivery of goods from such third party, and any other terms (such as warranties) are solely between you and such third party. You agree that Cultivate Advisors will not be responsible for any loss or damage of any sort relating to your dealings with such third parties.
  3. INDEMNIFICATION.  You agree to indemnify and hold Cultivate Advisors, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, an “Advisor Party” and collectively, the “Advisor Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use, the Services; (b) your violation of the Terms of Use (including without limitation the Acceptable Use Policy); (c) your violation of any rights of another party, including any other Users; or (d) your violation of any applicable laws, rules or regulations.  Cultivate Advisors 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 Cultivate Advisors in asserting any available defenses.  This provision does not require you to indemnify any of the Advisor Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.   You agree that the provisions in this section will survive any termination of your account, these Terms of Use, and/or your access to the Services.
  4. DISCLAIMER OF WARRANTIES AND CONDITIONS.

6.1.             As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  CULTIVATE ADVISORS AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, AND LICENSORS (EACH AN “ADVISOR PARTY” AND COLLECTIVELY, THE “ADVISOR PARTIES”) EXPRESSLY DISCLAIMS 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 ARISING FROM USE OF THE SERVICES.  THE ADVISOR PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

6.2.             No Liability for Conduct of Third Parties and Other Users.  YOU ACKNOWLEDGE AND AGREE THAT THE ADVISOR PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE ADVISOR PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND THIRD PARTY LINKS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.  YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT THE ADVISOR PARTIES DO NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF OTHER USERS OF THE SERVICES.  CULTIVATE ADVISORS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS.  YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.  YOU ACKNOWLEDGE AND AGREE THAT CUTIVATE ADVISORS DOES NOT CONDUCT BACKGROUND CHECKS ON ANY USER.

  1. LIMITATION OF LIABILITY.  TO THE FULLEST EXTENT PERMITTED BY LAW (AND UNLESS CULTIVATE ADVISORS HAS ENTERED INTO A SEPARATE WRITTEN AGREEMENT THAT OVERRIDES THESE TERMS OF USE), YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ADVISOR PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT CULTIVATE ADVISORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES; (2) 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 SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.  CULTIVATE ADVISORS DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH OR EU LAW.  IN ANY EVENT, OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY BREACH OF THE USER TERMS IS ONE HUNDRED DOLLARS ($100) IN THE AGGREGATE.  CULTIVATE ADVISORS ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
  2. VIOLATIONS.

8.1.             Investigation.  If Cultivate Advisors becomes aware of any possible violations by you of these Terms of Use (including without limitation the Acceptable Use Policy), Cultivate Advisors reserves the right to investigate such violations.  If, as a result of the investigation, Cultivate Advisors believes that criminal activity has occurred, Cultivate Advisors reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  Cultivate Advisors is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including User Content, in Cultivate Advisors’ possession in connection with your use of the Services, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms of Use, (c) respond to any claims that User Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Cultivate Advisors, its Users or the public, and all enforcement or other government officials, as Cultivate Advisors in its sole discretion believes to be necessary or appropriate.

8.2.             Account Suspension or Termination. Notwithstanding the terms of the applicable Company Agreement, we may permanently or temporarily terminate or suspend your access to the Services or any portion thereof without notice and liability if in our reasonable determination you violate any provision of these Terms of Use, including without limitation the Acceptable Use Policy.

  1. TERM AND TERMINATION.  These Terms of Use remain effective until Company’s subscription for you expires or terminates, or your access to the Services has been terminated by Company or us.  Please contact Company if you at any time or for any reason wish to terminate your account, including due to a disagreement with any updates to these Terms of Use.  You understand that any termination of Services may involve deletion of User Content associated therewith from our live databases.  Cultivate Advisors will not have any liability whatsoever to you for any suspension or termination, including for deletion of User Content.  All provisions of the Terms of Use which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
  2. GENERAL PROVISIONS.

10.1.         Electronic Communications.  The communications between you and Cultivate Advisors may take place via electronic means, whether you visit the Services or send Cultivate Advisors emails, or whether Cultivate Advisors posts notices on the Services or communicates with you via email.  For contractual purposes, you (a) consent to receive communications from Cultivate Advisors in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Cultivate Advisors provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.

10.2.         Privacy.  For information about how we collect, use, and share the personal information we collect about you, please review our Privacy Policy.

10.3.         Assignment.  The Terms of Use, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Cultivate Advisors’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.  We may assign the Terms of Use in their entirety (including all terms and conditions incorporated herein by reference) without restriction.

10.4.         Force Majeure.  Cultivate Advisors 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, pandemic, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

10.5.         Limitation Period.  YOU AND CULTIVATE ADVISORS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS OF USE, THE SERVICES, OR THE ADVISOR MATERIALS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.  OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

10.6.         Governing Law and Jurisdiction; Venue.  The Terms of Use and any disputes arising out of or related thereto will be governed and interpreted by and under the same applicable law of the Company Agreement, without regard to conflicts of laws rules.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms of Use.  The courts located in the applicable venue of the Company Agreement will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms of Use, or its formation, interpretation or enforcement.  Each party hereby consents and submits to the exclusive jurisdiction of such courts.

10.7.         Notices.  We may deliver notice to you by email, posting a notice on the Services or any other method we choose and such notice will be effective on dispatch.  You may give notice to Cultivate Advisors at the following email address: [email protected]  Such notice shall be deemed given when received by Cultivate Advisors.

10.8.         Waiver.  Any waiver or failure to enforce any provision of the Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.9.         Severability.  If any portion of the Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

10.10.     Entire Agreement.  The Terms of Use, including any terms incorporated by reference into the Terms of Use, constitute the entire agreement between you and us and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  To the extent of any conflict or inconsistency between the provisions in these Terms of Use and any pages referenced herein, the terms of these Terms of Use will first prevail; provided, however, that if there is a conflict or inconsistency between the Company Agreement and the Terms of Use, the terms of the Company Agreement will first prevail, followed by the provisions in these Terms of Use, and then followed by the pages referenced in these Terms of Use (e.g., the Privacy Policy).  Company will be responsible for notifying Users of those conflicts or inconsistencies and until such time the terms set forth herein will be binding.