Terms of Service

Last Updated: April 09, 2023

Fether owns, operates, and provides the Fether Service (as defined in Section 1 below) subject to this Terms of Service Agreement (hereinafter, this "Agreement"). PLEASE READ THIS AGREEMENT CAREFULLY, AS IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS GOVERNING THE ACCESS AND USE OF THE FETHER SERVICE. 

ACCEPTANCE OF THIS AGREEMENT: BY CREATING AN ACCOUNT FOR THE FETHER SERVICE, AND/OR ACCEPTING THE PRICING AND PAYMENT ORDER CONFIRMATION DURING ONBOARDING AND INSTALLATION OF THE FETHER SERVICE OR ENTERING INTO A WRITTEN OR ELECTRONIC ORDER FORM WITH FETHER (EACH, AN "ORDER FORM") TO OBTAIN ACCESS TO THE FETHER SERVICE (INCLUDING, BUT NOT LIMITED TO, ON A TRIAL BASIS), OR OTHERWISE ACCESSING AND/OR USING THE FETHER SERVICE IN ANY MANNER, YOU HEREBY EXPRESSLY UNDERSTAND, ACKNOWLEDGE, AND AGREE TO THE FOLLOWING:

1. YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW);
2. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), ON BEHALF OF THE ENTITY OR PERSON NAMED ON THE ACCOUNT IN RESPECT OF WHOM ACCESS AND USE OF THE FETHER SERVICE WAS OBTAINED (SUCH ENTITY OR PERSON, THE "CUSTOMER"), AND TO BIND CUSTOMER TO THE TERMS OF THIS AGREEMENT; AND
3. YOU AGREE THAT THE CUSTOMER IS ENTERING INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) WITH FETHER.

IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR DO NOT HAVE SUCH AUTHORITY, DO NOT CREATE AN ACCOUNT OR ACCESS OR USE THE FETHER SERVICE (OR ANY PART THEREOF). This Agreement was last updated as of the date set forth above. The effective date of this Agreement is the date Customer accepts this Agreement as set forth above (the "Effective Date").

1. DEFINITIONS

"Authorized Users" means employees, contractors, or consultants of Customer authorized to use the Fether Service on behalf of Customer, subject to the terms of this Agreement.

"Customer Content" means text, images, graphics, logos, trademarks, and all other content of Customer transmitted, uploaded, submitted, and/or otherwise provided by or on behalf of Customer in connection with the use of the Fether Service.

"Customer Data" means all data and other information transmitted, collected, uploaded, and/or submitted through the Fether Service, including, but not limited to, through any Implementation Code and/or Widgets installed on the Customer Store, or otherwise provided or made available by Customer and/or any Authorized Users hereunder in connection with the use of the Fether Service.

"Customer Store" means the online Shopify store controlled and operated by the Customer that the Customer connects to the Fether Service.

"Documentation" means Fether's then-current technical user manuals, documentation, and/or other materials for the use of the Platform, Implementation Code, and/or Widgets, as applicable, made available to Customer by Fether.

"Implementation Code" means any and all implementation and/or deployment code, any and all modified, updated, or enhanced versions thereof, made available by Fether to Customer hereunder, and/or generated by or on behalf of, Customer in connection with the use of the Platform, that enables Customer to (a) connect the Fether Service with the Customer Store, and (b) deploy Widgets on the Customer Store.

"Intellectual Property Rights" means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author's rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals, and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.

"Operational Metrics" means anonymized statistics, metrics, analytics, and data regarding the performance and operation of the Fether Service (or any part thereof) that Fether collects in connection with the use of the Fether Service, and other operational and technical metrics necessary to manage and perform the Fether Service.

"Platform" means Fether's proprietary hosted software platform that enables users to implement e-commerce personalization and merchandising solutions, and any and all modified, updated, or enhanced versions thereof, made available to Customer by Fether hereunder.

"Fether Service" means the Platform, Widgets, Implementation Code, and/or any related support or other services provided by Fether to the Customer in connection with the use thereof.

"Service Fees" means the fees due and payable by Customer for the use of the Fether Service based on the Customer's applicable Service Tier. 

"Service Term" means the thirty (30) day period commencing: (i) on the date Customer first connects the Fether Service to the Customer Store, or, (ii) upon expiration of the Trial Period if Customer has obtained the Fether Service on a trial basis as outlined in Section 3.1. The Service Term will automatically renew for successive thirty (30) day periods unless Customer terminates this Agreement and disconnects and ceases all use of the Fether Service, as outlined in Section 5.2 before the expiration of the then-current Service Term.

"Trial Period" has the meaning given to such term in Section 3.1.

"Usage Parameters" means any usage parameters and/or restrictions regarding the scope of use of the Fether Service specified in the then-current pricing plan, including, but not limited to the applicable Documentation, Order Form(s), and/or in writing by Fether.

"Widgets" means the software application widgets made available by Fether to the Customer as part of the Fether Service.

2. ACCOUNTS; CUSTOMER DATA AND CONTENT

2.1 Accounts. To access and use the Fether Service, Customer must register an account ("Account"). In registering an Account, the Customer agrees to provide and maintain up-to-date information that is true, accurate, current, up-to-date, and complete. In addition, Customer agrees that Customer will not (i) create an Account using a false identity or fictitious name or information, and/or (ii) create an Account or use the Fether Service if Customer has been previously removed or banned by Fether from use of the Fether Service, or any part thereof. Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting Customer's password for the Account. Customer is solely responsible and liable for any use of the Fether Service and/or activity originating from the Account, regardless of whether such use and/or activity is authorized by Customer. The customer agrees to notify Fether immediately of any unauthorized use of the Account. Fether reserves the right to limit the number of Accounts that can be created from a computer or mobile device and the number of computer or mobile devices that can access an individual Account.

2.2 Authorized Users. Customer agrees that it shall not permit any person other than Authorized Users to access and use the Fether Service and will ensure that its Authorized Users use the Fether Service solely following this Agreement. Customer acknowledges and agrees that Customer is solely responsible for the use of the Fether Service by Authorized Users, and any breach of this Agreement by any Authorized User will be deemed a breach by Customer.

2.3 Customer Data & Customer Content. As between Customer and Fether, subject to the licenses expressly granted to Fether herein, Customer shall retain all rights, title, and interest in and to Customer Data and Customer Content. Customer grants to Fether a non-exclusive, royalty-free, fully-paid, worldwide license to (i) use and process Customer Data, and (ii) reproduce, modify, incorporate, perform, and otherwise use the Customer Content, in case, to the extent reasonably necessary for Fether to provide Customer the Fether Service hereunder. Customer represents and warrants that (i) Customer has all the rights and/or authorizations necessary to grant the Fether the licenses granted herein in and to Customer Data and Customer Content; and (ii) none of the Customer Data and/or Customer Content violates or will violate this Agreement, any applicable laws, rules or regulations, or any third party's intellectual property or other proprietary rights.

2.4 Personal Data. To the extent any Customer Data and/or Customer Content includes any personally identifiable information ("Personal Data"), which is subject to any applicable data protection laws and/or regulations ("Applicable Data Laws"), Customer acknowledges and agrees that as between Customer and Fether, Customer is the data controller and Fether is merely a data processor and/or service provider as such terms are defined according to applicable data protection laws. Any personally identifiable information provided or collected through or in connection with the Fether Service shall only be used following this Agreement and the Fether Privacy Policy located at https://fether.app/pages/privacy-policy. Customer represents and warrants that (i) Customer is in compliance with all Applicable Data Laws, (ii) Customer will implement and maintain a clear and conspicuous consumer-facing privacy policy, that complies with all applicable laws and regulations (including, without limitation, Applicable Data Laws), and that provides adequate and comprehensive notice of Fether's data collection and use on behalf of Customer as contemplated by the Fether Service, including, but not limited to, the use of cookies and other similar technologies to collect data from individual consumers if applicable to the Fether Service, and (iii) Customer has made all disclosures to, and obtained all permissions and/or approvals from, each applicable data source as may be necessary or required to transmit Personal Data through the Fether Service, including, but not limited to, the storing and accessing of cookies or other information on the data source's device where such activity occurs. In addition, at Fether's request, Customer agrees to execute and/or enter into any documents, agreements, statements, or policies deemed necessary or appropriate by Fether in its discretion to comply with any Applicable Data Laws concerning any Personal Data.

2.5 Personal Data of Children. Customer agrees not to upload, transmit, and/or submit through, or in connection with the use of, Fether Service, or otherwise provide to Fether any Personal Data about individuals that Customer knows or has reason to know are under the age of 13 or the equivalent age as specified by law in the applicable jurisdiction (e.g., 16 years of age if you are located in the EEA). If Customer discovers or reasonably believes that it has or may have uploaded, transmitted, submitted, and/or otherwise provided any Personal Data about individuals under the age of 13 or the equivalent age as specified by law in the applicable jurisdiction to Fether and/or through, or connection with the use of, the Fether Service, Customer agrees to, and shall, immediately remove such information from Fether's systems (including, without limitation, the Fether Service and Customer's Account) and immediately notify Fether of such occurrence.

3. ACCESS AND USE OF SERVICES

3.1 Service Term; Trial Period. Subject to the terms and conditions of this Agreement (including payment of applicable fees), Fether will provide Customer access to the Fether Service during the Service Term (including any renewal thereof). For the avoidance of doubt, Customer acknowledges and agrees that each Service Term will automatically renew for successive thirty (30) day periods unless Customer terminates this Agreement, and disconnects and ceases all use of the Fether Service, as outlined in Section 5.2 before the expiration of the then-current Service Term. If Customer has obtained the Fether Service on a trial basis, Customer will have a period of twenty-one (21) days from the date Customer first connects the Fether Service to the Customer Store or such other period expressly agreed to in writing by Fether, to use the Fether Service on a trial basis (the "Trial Period"). Customer acknowledges and agrees that upon expiration of the Trial Period, the Service Term will automatically start, and Customer will automatically be charged for applicable Service Fees due and payable for Customer's applicable Service Tier following Section 4 unless Customer terminates this Agreement, and disconnects, and ceases all use of the Fether Service, as outlined in Section 5.2 before the end of the Trial Period.

3.2 Access to the Platform. Subject to the terms and conditions of this Agreement (including payment of applicable fees), Fether grants to Customer a non-exclusive, non-sublicensable, non-transferable limited right during the Trial Period, if applicable, and the Service Term, to: (i) permit Authorized Users to access and use the Platform, over the internet, to generate and deploy Widgets; (ii) to install the Implementation Code on the Customer Store to connect the Fether Service and deploy and display the applicable Widgets on the Customer Store; and (iii), reproduce and use a reasonable number of copies of the Documentation in support of the exercise of the licenses and rights granted in this Section 3.2. The licenses granted to Customer hereunder are limited to Customer's use for its internal business purposes, following this Agreement and the Documentation, and subject to any applicable Usage Parameters. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TRIAL VERSION IS PROVIDED "AS-IS" AND WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE FETHER ROI GUARANTEE OUTLINED IN SECTION 6, OR ANY SUPPORT OR OTHER SERVICES (INCLUDING ANY UPDATES OR UPGRADES).

3.3 Access to Beta-Version and Features. From time to time, Fether, in its sole discretion, may make certain beta versions of and/or beta features and/or functionality of the Fether Service available to Customer to try at its option at no additional charge which is designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description (collectively, "Beta Version and Features"). For the avoidance of doubt, any Beta Version and Features made available by Fether to Customer hereunder are included in the defined term "The Fether Service" as used throughout this Agreement. If Customer elects to access Beta Version and Features made available to Customer by Fether, Fether grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Beta Version and Features solely for Customer's internal evaluation and subject to any and all technical limitations implemented in the Beta Versions and Features and/or other usage parameters or restrictions specified by Fether for the Beta Version and Features. In addition to the restrictions outlined in Section 3.4 below, Customer shall not access and/or use the Beta Version and Features (i) for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purpose, or (ii) without the express prior written approval of Fether if Customer is a direct competitor of Fether. In addition, Customer acknowledges and agrees that the Beta Versions and Features and any Feedback (as defined below in Section 3.7) regarding the Beta Versions and Features are the confidential information of Fether and Customer shall not disclose any such confidential information to any third party. BETA VERSION AND FEATURES ARE PROVIDED AS-IS, ARE NOT SUPPORTED, AND MAY BE SUBJECT TO ADDITIONAL TERMS AS SPECIFIED BY FETHER IN WRITING AND/OR IN THE APPLICABLE DOCUMENTATION FOR THE BETA VERSION AND FEATURES. Fether reserves the right to terminate Customer's access to any Beta Versions and Features at any time, for any reason.

3.4 Restrictions and Prohibited Uses. Customer agrees that Customer will not, and it will not permit any third party (including, without limitation, any Authorized User) to: (i) modify, adapt, translate or create derivative works based on the Fether Service (or any part thereof) or Documentation; (ii) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform, Widgets and/or Implementation Code; (iii) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the Fether Service (or any part thereof) and/or Documentation; (iv) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Fether or its suppliers on or within the Fether Service and/or Documentation; (v) interfere with or disrupt the integrity or performance of the Fether Service (or any part thereof), or any system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Fether Service; (vi) attempt to gain unauthorized access to the Fether Service (or any part thereof), or its related systems or networks; (vii) frame or utilize framing techniques to enclose the Fether Service or any portion thereof; (viii) use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Fether Service, content, or the personal information of others without Fether's prior written permission or authorization; (ix) use the Fether Service (or any part thereof) to hack, spam, or phish Fether or Fether's other users; (x) use the Fether Service to store or transmit any malicious or unsolicited code or software, or store, transmit or upload any material and/or content that is false, inaccurate, illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, infringing, libelous, tortious, or otherwise objectionable in Fether's reasonable opinion, or to store, transmit or upload any material or content that violates any third party's intellectual property rights and/or privacy rights; (xi) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer's affiliation with any person or entity; or (xii) violate any applicable local, state, national or international law (including, without limitation, U.S. and foreign export laws concerning the transmission of technical data and other regulated materials) in Customer's use of the Fether Service.

3.5 Third-Party Integrations. The Fether Service may allow Customer to connect to and/or use certain third-party products, services, or software (including, without limitation, data products and services), through scripts and/or APIs made available by the owner of such third-party software or services (collectively "Third Party Integrations"). Third-Party Integrations are not owned, controlled, or operated by Fether and are subject to separate terms and conditions of the applicable third-party provider. If Customer decides to access and use such Third Party Integrations, Customer's use of Third Party Integrations is governed solely by the terms and conditions of such Third Party Integrations, and Fether does not endorse, is not responsible for, and makes no representations as to such Third Party Integrations, their content or how they handle Customer's data. Fether is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer's access or use of any such Third Party Integrations, or Customer's reliance on the privacy practices or other policies of such Third Party Integrations. FETHER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES ADVERTISED OR OFFERED THROUGH, OR IN CONNECTION WITH, THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY INTEGRATIONS CONNECTED TO THE SERVICE), OR ANY HYPERLINKED WEBSITE OR SERVICE, AND FETHER WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN CUSTOMER AND THIRD-PARTY PROVIDERS OF SUCH THIRD PARTY PRODUCTS OR SERVICES AND/OR THIRD PARTY INTEGRATIONS.

3.6 Operational Metrics. Fether monitors and collects Operational Metrics for its business purposes, such as improving, testing, and maintaining the Fether Service and related machine learning algorithms, and developing additional products and services. Customer grants to Fether a non-exclusive, irrevocable, transferable, worldwide, and royalty-free license to (i) collect, analyze and use Operational Metrics, for the purposes set forth above, and (ii) modify, reorder, augment, and/or manipulate Customer Data and related Operational Metrics for its internal business purposes for sourcing and machine learning algorithms. Fether may only publicly distribute Operational Metrics in the aggregate, the non-personally identifiable form that cannot be used to identify Customer or any individual Authorized User or end user of the Customer Store.

3.7 Fether Proprietary Rights. Fether and/or its licensors shall retain all rights, title, interest, in and to, and ownership of the Fether Service (and all parts thereof), Documentation, and any text, graphics, images, music, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Fether Service (but excluding Customer Content and Customer Data), and all copyright, patent, trade secret, trademark and other intellectual property and proprietary rights thereto. All rights that are not explicitly granted in this Agreement are reserved by Fether and its licensors. To the extent that any ideas, suggestions, improvements, and/or other feedback regarding any aspect of the Fether Service and/or Documentation, including, without limitation, the functioning, features, and other characteristics thereof are provided by or on behalf of Customer and/or any Authorized User (collectively, "Feedback"), Customer hereby grants Fether, its subsidiaries, affiliates, and partners a worldwide, irrevocable, perpetual, royalty-free, non-exclusive, sublicensable and transferable license under all Customer's intellectual property rights in the Feedback to exploit and use for any purpose, without compensation or attribution.

3.8 Changes and Modifications. Fether reserves the right to either temporarily or permanently modify, suspend, or discontinue the Fether Service (or any part thereof) with or without notice. Customer agrees that Fether will not be liable to Customer or any third party for any modification, suspension, or discontinuance of the Fether Service (or any part thereof).

4. FEES; PAYMENT TERMS

4.1 Service Fees. Customer agrees to, and shall, pay to Fether the applicable Service Fees based on the Customer's applicable Service Tier for each Service Term. Fether reserves the right, at any time, to increase the fees payable hereunder, and/or change, update, or modify Fether's pricing and/or payment terms; provided that, any increase in fees applicable to Customer shall not take effect until the start of the next Service Term.

4.2 Payment Terms. Unless otherwise outlined in the applicable Order Form and/or otherwise expressly agreed in writing by Fether the Service Fees shall be due and payable by Customer in advance on or before the first day of the Service Term (and each renewal thereof). Except where Fether has agreed to invoice Customer for the Service Fees (which shall be at Fether's sole discretion), the Service Fees will be automatically billed and charged to Customer's Payment Method (as defined below) by Fether's third-party payment processors (currently, Shopify and Stripe). Invoiced fees, if applicable, will be due and payable by the Customer following the payment terms in the applicable invoice. Customer expressly agrees that Fether or its third-party payment processors may bill and charge Customer for the applicable Fees due and payable by Customer hereunder and any applicable Taxes (defined below) and any other charges that Customer may incur in connection with the use of the Fether Service, and Customer hereby authorize Fether (through its third-party payment processors) to charge all such Service Fees, Taxes and other charges to the credit card, or other payment method provided by Customer (the "Payment Method"), following the billing terms in effect at the time a fee or charge is due and payable. To the extent that any amounts owed by Customer cannot be collected from or through the Payment Method(s), Customer is solely responsible for paying such amounts by other means. If payment is not received or cannot be charged to Customer for any reason in advance, Fether reserves the right to suspend or terminate Customer's and it's Authorized User's access to the Fether Service and/or terminate this Agreement. All fees are listed and payable in United States Dollars (USD). Except as otherwise expressly outlined in this Agreement, all fees are non-refundable and non-cancellable.

4.3 Taxes. The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, "Taxes"), and Customer is and shall be responsible for payment of all such taxes (other than taxes based on Fether's income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Fether Service, or performance of any services by Fether hereunder.

5. TERM; TERMINATION

5.1 Term. The term of this Agreement commences on the Effective Date and will remain in effect during the Service Term (including any renewal thereof), or until terminated following this Agreement (whichever is sooner). Each Service Term shall automatically renew as outlined in Section 3.1.

5.2 Termination. Customer may terminate this Agreement by disconnecting the Fether Service from Customer's Shopify account, ceasing all access to the Fether Service, and permanently uninstalling the Fether Service from the Customer Store. Customer acknowledges and agrees that notwithstanding any termination of this Agreement, the Service Fees are non-refundable and non-cancellable. At any time, Fether may (i) suspend or terminate Customer's and/or any Authorized User's right to access or use the Fether Service (or any part thereof), or (ii) terminate this Agreement concerning Customer if Fether, in good faith, believes that Customer has used the Fether Service (or any part thereof) in violation of this Agreement, including any incorporated guidelines, terms or rules.

5.3 Effect of Termination. Upon termination of this Agreement for any reason, all outstanding fees immediately become due and payable, including, without limitation, any Service Fees due and payable for the remainder of the then-current Service Term, and Customer's and its Authorized Users' right to access and use the Fether Service will automatically terminate. In addition, provided that Customer has paid Fether all amounts due and payable under this Agreement, Fether will permit Customer to export a copy of the Customer Data and Customer Content, following Fether's receipt of Customer's written request to export such Customer Data within thirty (30) days of the date of termination. Thereafter, the Company will have no obligation to retain Customer Data. The following Sections will survive any termination or expiration of this Agreement: 1, 2, 3.4, 3.5, 3.6, 3.7, 4, 5.3, and 7 through 14.

6. INDEMNIFICATION

Customer shall indemnify, defend, and hold Fether and its affiliates and subsidiaries, and their respective officers, directors, shareholders, employees, contractors, agents, successors, and assigns (collectively, "Fether Indemnified Parties"), harmless from and against any and all liability, losses, claims, expenses (including reasonable attorneys' fees), demands or damages of any kind, arising out of or related to (i) Customer's breach of this Agreement or any license or other agreement applicable to any Third Party Integrations; (ii) allegations that the Customer Content, or Customer's activities in connection with, or use of, the Fether Service (or any part thereof), violate any applicable laws, rules or regulations, or infringe or misappropriate the intellectual property rights of any third party; (iii) Customer Data or a violation of any applicable privacy law, rule or regulation by Customer; and/or (iv) Customer's use of the Fether Service. Fether shall promptly notify Customer in writing of such action, giving Customer sole control of the defense thereof and any related settlement negotiations, and, at Customer's reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence, or another culpability of any Fether Indemnified Party or requires any Fether Indemnified Party to contribute to the settlement without Fether's prior written consent. Fether and any Fether Indemnified Party may participate and retain its counsel at its own expense.

7. DISCLAIMER

THE FETHER SERVICE (AND ALL PARTS THEREOF), DOCUMENTATION, AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY FETHER ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND FETHER AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT. FETHER AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE FETHER SERVICE (OR ANY PART THEREOF), DOCUMENTATION, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY FETHER OR CONTENT MADE AVAILABLE THROUGH THE FETHER SERVICE: (I) WILL MEET CUSTOMER'S REQUIREMENTS; (II) WILL BE COMPATIBLE WITH CUSTOMER'S NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY INTEGRATIONS; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. THE CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE FETHER SERVICE, AND ALL RESULTS OF SUCH USE ARE SOLELY AT THE CUSTOMER'S OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE CUSTOMER FROM FETHER, ANY THIRD PARTY, OR THROUGH THE FETHER SERVICE, SHALL CREATE ANY WARRANTY.

8. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT SHALL FETHER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL OR OTHER DAMAGES RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE FETHER SERVICE (OR ANY PART THEREOF), AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY FETHER , EVEN IF FETHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT TO THE EXTENT SUCH DAMAGES ARISE DIRECTLY AND SOLELY FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF FETHER, AND (II) IN NO EVENT SHALL FETHER’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE FETHER SERVICE (OR ANY PART THEREOF), AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY FETHER HEREUNDER EXCEED THE GREATER OF THE SERVICE FEES PAID OR PAYABLE TO FETHER BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION, OR ONE HUNDRED DOLLARS ($100.00). THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THIS SECTION 8 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT FETHER WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION. THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. FETHER DISCLAIMS ALL LIABILITY OF ANY KIND OF FETHER'S LICENSORS AND SUPPLIERS.

9. APPLICATION OF LIMITATIONS AND DISCLAIMERS TO CONSUMERS.

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages concerning consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions outlined in Section 7 and 8 above may not apply to Customer if Customer is deemed a consumer. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in this Agreement shall apply to Customer as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where Customer is located.

10. CONFIDENTIALITY.

Each party (the "Disclosing Parties") may from time to time during the term of this Agreement disclose to the other party (the "Receiving Party") certain proprietary and non-public information regarding the Disclosing Party's products, services, and business (collectively, "Confidential Information"). Without limiting the foregoing, Confidential Information of Fether shall include the Implementation Code, Documentation, Feedback, any reports generated or made available through the Fether Service, and any non-public technical and business information regarding the Platform, Widgets, and/or any other Fether products and/or services. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party's duty hereunder. The Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Confidential Information shall not include information: (i) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party without any obligation of confidentiality; (ii) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; or (iii) is, or through no fault of the Receiving Party, or its employees and contractors, has become, generally available to the public. The Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party without violating its obligations under this Section to the extent that such disclosure is (a) approved in writing by the Disclosing Party, (b) necessary for the Receiving Party to enforce its rights under this Agreement; or (c) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party's reasonable request and expense, in any lawful action to contest or limit the scope of the such required disclosure. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party's possession or control promptly upon the written request of the Disclosing Party or the termination of this Agreement, whichever comes first. At the Disclosing Party's request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (1) as required by law, or (2) in connection with a proposed merger, financing, or sale of such party's business (provided that any third party to whom the terms of this Agreement are to be disclosed is under a duty of confidentiality.

11. AVAILABILITY OF THE SERVICES.

Information describing the Fether Service is accessible worldwide but this does not mean the Fether Service, or certain portions thereof, are available in Customer's country. Fether may restrict access to the Fether Service, or portions thereof, in certain countries at its sole discretion. It is the Customer's responsibility to make sure the Customer's use of the Fether Service is legal in the Customer's country of residence. the Fether Service may not be available or accessible in all languages. If at Fether's reasonable determination, Customer uses the Fether Service or any other material or services provided by Fether to Customer in a manner that violates laws, creates an excessive burden or potential adverse impact on Fether's systems, in addition to any of its other rights or remedies, Fether may, without liability to Fether, immediately suspend or terminate Customer's access to the Fether Service.

12. ELECTRONIC COMMUNICATIONS.

By using the Fether Service, Customer consents to receive electronic communications from Fether. These electronic communications may include notices about applicable charges, transactional information, and other information concerning or related to the Customer's use of the Fether Service. These electronic communications are part of the Customer's relationship with Fether and the Customer receives them as part of the Customer's access and use of the Fether Service. Customer agrees that any notices, agreements, disclosures, or other communications that Fether sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.

13. MODIFICATIONS TO THIS AGREEMENT.

Fether reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted on Fether's website located at https://www.Fetherengine.com/legal/terms-of-service. Except as stated below concerning material changes, all updates and modifications to this Agreement will be effective from the day they are posted online, as indicated by the "Last Updated" date set forth above. If Fether makes any material changes to this Agreement, Fether will provide reasonable prior notice to Customer of these changes by sending a notification to the email address Fether has on file for Customer, or, if Fether does not have an email address on file, by posting a prominent notice on Fether's website www.Fetherengine.com and/or through the user interface of the Platform. Material changes to this Agreement will become effective on the date outlined in the notice. It is the Customer's responsibility to regularly visit and review this Agreement for updates, changes, and modifications. If Customer does not agree to any updates or modifications to this Agreement, simply do not use or access the Fether Service and, if applicable, terminate the Account. Customer's and/or any of its Authorized Users' continued access or use of the Fether Service (or any part thereof) after the applicable effective date of the revised Agreement will constitute Customer's acceptance of the revised Agreement.

14. GENERAL.

Neither the rights nor the obligations arising under this Agreement are assignable by Customer, and any such attempted assignment or transfer shall be void and without effect. Any waiver of any provision of this Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this Agreement shall not be deemed a waiver of that right. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from this Agreement and shall not affect the legality, enforceability, or validity of the remainder of the provisions outlined in this Agreement. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in this Agreement and its performance shall be construed as creating a joint venture or agency between Fether and Customer. This Agreement is not intended to grant rights to anyone except Customer and Fether, and in no event shall this Agreement create any third-party beneficiary rights. Fether may delegate the performance of any services hereunder to its affiliates and contractors. This Agreement and any other policies or terms and conditions referenced herein, constitute the entire agreement between the parties regarding the subject matter and supersedes all prior oral or written agreements or communications about the subject matter described. Any notice to the Customer may be provided by email. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word "including" means "including but not limited to." The customer agrees that this Agreement will not be construed against Fether by having drafted them. The official text of this Agreement (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that this Agreement be drawn up in the English language only. Les parties reconnaissent qu'elles ont exigé que la présente convention soit rédigée en language anglaise seulement. In the event of any dispute concerning the construction or meaning of this Agreement, reference will be made only to this Agreement as written in English and not to any translation into another language. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party.

15. QUESTIONS AND ADDITIONAL INFORMATION.

Please feel free to contact Fether at support@fether.app if you have any questions about this Agreement.