Terms of Service


Terms of Service

By accessing or using the Site (defined below), or otherwise expressing your assent to this Terms of Service (e.g., by clicking “Accept” or “I agree” in connection with this Terms of Service), you agree to this Terms of Service. If you are accessing or using the Site, or otherwise expressing your assent to this Terms of Service, on behalf of an organization (such as your employer), you represent that you have the authority to bind such organization to this Terms of Service and that you agree to this Terms of Service on behalf of such organization. You also represent and warrant that each individual accessing or using the Site, or otherwise expressing assent to this Terms of Service on your behalf, is over eighteen (18) years old.


1. DEFINITIONS

“Company,” “we,” “our,” or “us,” means Active Design Advisors, Inc., Center for Active Design, Inc., and their affiliates.

“Content” means any text, graphics, images, information, reports, recommendations, software, audio and video clips, links, logos, icons, and other material, including but not limited to our proprietary and confidential information, each as made available to in connection with the Site.

“Information” means information and data that you provide to us or that we collect from you in connection with the Site, including all suggestions and recommendations.

“Program Services” means the services that we make available through or in connection with the Site, including any site or property certification services.

“Site” means our website currently located at fitwel.org, including all subdomains and sites associated with those domains, and together with any Content made available in connection with such website, and successor website(s) thereto.

“You” or “your” refers to the person or entity that has accepted this Terms of Service.


2. CHANGES

We may change the terms of this Terms of Service from time to time by notifying you of such changes by any reasonable means, including by making a revised version of this Terms of Service available through the Site. Any changes to this Terms of Service will not apply to any dispute between you and us arising prior to the date on which we made available the revised Terms of Service incorporating such changes, or otherwise notified you of such changes. By accessing or using the Site, or otherwise expressing your assent to this Terms of Service following any changes to this Terms of Service, you accept such changes to this Terms of Service. If you do not wish to be bound by any such revisions to this Terms of Service, you must cease to access and use the Site immediately. By continuing to access or use the Site after the revisions become effective, you agree to be bound by the revised Terms of Service.


3. FEES

We may make certain Program Services available to you.  The terms and conditions governing our provision and your receipt of such services are set forth in a separate agreement that will be entered between you and us when you sign-up for the Program Services.


4. PRIVACY

Any Information that you provide to us or that we collect from you is subject to our Privacy Policy located at https://centerforactivedesign.org/privacy, which governs our collection and use of your information (“Privacy Policy”). Through your access to or use of the Site, you consent to the collection and use (as set forth in the Privacy Policy) of such Information, including the transfer of such Information to the United States and/or other countries for storage, processing and our use. As part of making the Site available, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Site and your Site account, which you may not be able to opt-out from receiving.


5. REGISTRATION; USER NAMES AND PASSWORDS

You may need to register an account to access or use all or part of the Site. We may reject, or require that you change, any user name, password or other information that you provide to us in registering for your account. Your user name and password are for your personal use only and should be kept confidential; you, and not us, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Site account.


6. INTELLECTUAL PROPERTY

All right, title, and interest in and to the Site are and will remain the exclusive property of Company and its licensors. We do not claim any ownership over the Information that you provide to us.

You hereby grant to us a royalty-free, worldwide, non-exclusive, transferable, sub-licensable, irrevocable and perpetual license to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit all Information. 

The trademarks, service marks, and logos of Company (the “Company Trademarks”) used and displayed in connection with the Site are registered and unregistered trademarks or service marks of Company. The FITWEL logo and the FITWEL word mark (the “FITWEL Trademarks”) are registered trademarks or service marks of U.S. Department of Health and Human Services. Other company, product, and service names used and displayed in connection with the Site may be trademarks or service marks owned by other third parties (the “Third-Party Trademarks,” and, collectively with Company Trademarks, the “Trademarks”). Nothing in this Terms of Service or otherwise in connection with your access to or use of the Site may be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. All goodwill generated from the use of the Company Trademarks inures to our benefit.


7. RESTRICTIONS IN CONNECTION WITH THE SITE

You may not do any of the following: (i) access, tamper with, or use non-public areas of the Site, our computer systems, or the technical delivery systems of our providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Site by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by us (and only pursuant to the terms and conditions governing access to such interfaces), unless you have been specifically allowed to do so in a separate agreement with us; (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Site to send altered, deceptive or false source-identifying information; (v) interfere with or disrupt (or attempt to do so) the access of any user, host or network to the Site, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on the Site; (vi) transmit or otherwise make available through or in connection with the Site any information or materials that are or may be: (A) defamatory, libelous, fraudulent, or otherwise tortious; (B) inaccurate, obscene, indecent, pornographic or otherwise objectionable, or (C) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner; (vii) harvest or collect information about users of the Site; (viii) with our express permission, reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Site; or (ix) frame or mirror any portion of the Site.

You will retain all copyright and other proprietary notices contained in the Content made available to you in connection with the Site. You may not sell or modify the Content or reproduce, display, distribute, or otherwise use the Content in any way for any public or commercial purpose. 

We reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Company, its users and the public. Company does not disclose personally identifying information to third parties except in accordance with our Privacy Policy.


8. THIRD PARTY LINKS

The Site may contain links to websites that we and our affiliates do not own, operate, or control. All such links are provided solely as a convenience to you. If you use these links, you will leave the Site. We are not responsible for any content, materials, or other information located on or accessible from any other website. We do not endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located or accessible from any other websites, or the results that you may obtain from using any other websites. If you access any other websites linked to or from the Site, you do so entirely at your own risk.


9. REPRESENTATIONS, WARRANTIES, AND ASSUMPTION OF RISK

TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE PROVIDE THE SITE AND CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS.  WE DO NOT PROVIDE WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES THAT (I) THE SITE WILL MEET YOUR SPECIFIC REQUIREMENTS, (II) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, (IV) THE SITE WILL MEET YOUR EXPECTATIONS, (V) THAT THE CONTENT WILL FULLY MITIGATE, PREVENT, OR OTHERWISE ENSURE AGAINST BACTERIAL, VIRAL, OR FUNGAL CONTAMINATIONS OR INFECTIONS, OR (VI) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.  YOU AGREE THAT IT IS YOUR SOLE AND EXCLUSIVE RESPONSIBILITY TO MAINTAIN THE SAFETY AND SECURITY OF YOUR REAL AND PERSONAL PROPERTY; THE SAFETY AND SECURITY OF ANY EMPLOYEES, GUESTS (INVITED OR UNINVITED), OR ANY OTHER INDIVIDUAL ON YOUR PREMISES; AND THAT YOUR USE OF THE SITE DOES NOT INDICATE ANY AGREEMENT THAT COMPANY WILL ASSUME ANY RESPONSIBILITY FOR THE SAME.

THE NOVEL CORONAVIRUS, COVID-19, HAS BEEN DECLARED A WORLDWIDE PANDEMIC BY THE WORLD HEALTH ORGANIZATION. RESEARCH ON COVID-19 IS STILL IN ITS INITIAL STAGES AND MEDICAL KNOWLEDGE IS EVOLVING. WHILE COMPANY SEEKS TO TIMELY INCORPORATE THE MOST CURRENT MEDICAL KNOWLEDGE IN THE CONTENT THAT WE MAY MAKE AVAILABLE TO YOU IN CONNECTION WITH COVID-19, IT IS NOT AT THIS TIME POSSIBLE TO PREVENT AGAINST THE PRESENCE OF THE DISEASE. YOU VOLUNTARILY ASSUME THE RISK THAT YOU OR SOMEONE TO WHOM YOU MAY BE LIABLE MAY BE EXPOSED TO OR INFECTED WITH A VIRUS, BACTERIA, OR FUNGUS, INCLUDING BUT NOT LIMITED TO COVID-19, EVEN WHILE UTILIZING THE CONTENT AND THAT SUCH EXPOSURE OR INFECTION MAY RESULT IN PERSONAL INJURY, ILLNESS, PERMANENT DISABILITY, AND/OR DEATH. YOU UNDERSTAND THAT THE RISK OF BECOMING EXPOSED TO OR INFECTED WITH A VIRUS, BACTERIA, OR FUNGUS, INCLUDING BUT NOT LIMITED TO COVID-19, MAY RESULT FROM THE ACTIONS, OMISSIONS, OR NEGLIGENCE OF OTHERS, INCLUDING BUT NOT LIMITED TO COMPANY EMPLOYEES AND OTHER USERS OR CONTENT. 

BY USING THE CONTENT, YOU AGREE YOU HAVE READ AND UNDERSTOOD THE ABOVE WARNING CONCERNING VIRAL, BACTERIAL, AND FUNGAL RISKS, INCLUDING COVID-19, AND YOU HEREBY CHOOSE TO ACCEPT THAT THE RISK OF CONTRACTING A VIRUS, BACTERIA, OR FUNGUS, INCLUDING BUT NOT LIMITED TO COVID-19, STILL EXISTS EVEN WHEN USING THE CONTENT TO MITIGATE SUCH RISK.


10. LIMITATION ON LIABILITY

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY, OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), PERSONAL INJURY AND/OR DEATH, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, COMPANY WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES OR CONTENT; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES OR CONTENT OR FOR ANY INJURY OR DAMAGE CLAIMED UNDER CONTRACT, TORT, OR ANY OTHER THEORY IS TO STOP USING THE SITE OR CONTENT; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF COMPANY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IN CONNECTION WITH THIS TERMS OF SERVICE OR CONTENT SHALL BE THE GREATER OF (I) TOTAL AMOUNT, IF ANY, PAID BY YOU TO COMPANY IN CONNECTION WITH YOUR USE OF THE SERVICES IN THE PRECEDING TWELVE (12) MONTH PERIOD, OR (II) FIFTY (50) U.S. DOLLARS.

AS MEDICAL KNOWLEDGE OF ALL VIRUSES, BACTERIA, AND FUNGI (INCLUDING, BUT NOT LIMITED TO, COVID-19) IS CONSTANTLY EVOLVING, YOU AGREE THAT COMPANY WILL DETERMINE, IN ITS SOLE DISCRETION, THE APPROPRIATE CHANGES AND TIMING OF SUCH CHANGES TO THE SERVICES IN RESPONSE TO NEW, DIFFERENT, OR EVEN CONFLICTING MEDICAL KNOWLEDGE.  YOU AGREE THAT COMPANY’S DETERMINATION AS TO THE APPROPRIATE CHANGES AND TIMING OF SUCH CHANGES TO THE SERVICES IN RESPONSE TO NEW, DIFFERENT, OR EVEN CONFLICTING MEDICAL KNOWLEDGE WILL NOT CONSTITUTE GROSS NEGLIGENCE IN ANY CIRCUMSTANCES


11. INTERNATIONAL USERS

The Site is controlled, operated and administered by Company from its offices within the United States. We make no representation that the Site is appropriate or available for use at other locations outside the United States, and access to the Site from territories where the Site is illegal is prohibited. If you access the Site from a location outside the United States, you are responsible for compliance with all local laws.


12. INDEMNIFICATION

You will defend, indemnify, and hold Company and any affiliated entity or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with (a) the use of the Site and any Information or other submissions that you provide through the Site (including any and all claims by third parties against you and/or Company involving, relating to, or allegedly impacted by your use of the Site or any Information); (b) your violation of this Terms of Service; (c) your violation of any third party right, including without limitation any right of privacy, publicity rights, or intellectual property rights; (d) your violation of any law, rule, or regulation of the United States or any other country; or (e) any other party’s access to or use of the Site with your unique username, password, or other appropriate security code.


13. ENDING THESE TERMS

We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Terms of Service and your access to and use of all or any part of the Site, at any time and for any reason without prior notice or liability.   


14. WAIVER AND SEVERABILITY

Our failure to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision.


15. CONTROLLING LAW AND JURISDICTION

You agree that all matters relating to your access to or use of the Site, including all disputes, will be governed by the laws of the United States and by the laws of the State of New York without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in New York County, New York, and waive any objection to such jurisdiction or venue. You agree that venue in the state and federal courts in New York County, New York, are the exclusive venue for any dispute under, regarding, or in any way related to the Services.  Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred.

If you are a federal, state, or local government entity in the United States using the Site in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of New York (excluding choice of law).


16. ENTIRE AGREEMENT

If a written Memorandum of Understanding was agreed-upon between you and Company, this Terms of Service are subject to that Memorandum of Understanding. Any Memorandum of Understanding, this Terms of Service, the Service Terms, and our Privacy Policy are the entire and exclusive agreement between Company and you regarding the Site (excluding any services for which you have a separate agreement with Company that is explicitly in addition or in place of this Terms of Service), and, with the exception of any Memorandum of Understanding, these Terms supersede and replace any prior agreements between Company and you regarding the Site.


17. MISCELLANEOUS

The Terms of Service do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and us. If any provision of this Terms of Service is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Terms of Service and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Terms of Service without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Terms of Service without restriction. 

In the event of termination or expiration of your use of the Services under the Service Terms for any reason, the provisions of Sections 6, 9, 10, and 12 shall survive termination and expiration and shall survive in perpetuity.


18. QUESTIONS

If you have any questions regarding this Terms of Service, please contact us by email at info@fitwel.org, or please write to the following address: Center for Active Design, Inc., 49 Flatbush Avenue, Suite 140, Brooklyn, NY 11217. 

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FITWEL & Design is a registered trademark of the U.S. Department of Health & Human Services (HHS). Participation by The Center for Active Design and/or any other organization does not imply endorsement by HHS.