Last Updated: April 08, 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:
This Privacy Policy describes Fether’s data collection, use, protection, and privacy practices concerning
information and data we may collect in connection with the following activities:
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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);
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RegisteYou 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 the Customer to the terms of this Agreement; and
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You agree that the Customer is entering into this Agreement (including all of the terms and conditions
specified or referenced below) with Fether.
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Connecting access to and/or authorizing certain data to be shared with us through third-party integrations
you have enabled and/or used in connection with the use of the Fether Platform (collectively, "Third Party
Integrations");
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Interacting with and/or using support and other services provided by us as part of your use of the Services;
- Signing up for our marketing communications and/or newsletters
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 the 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 versions 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 versions 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. Fether will not be a party to, or in any way monitor, any transaction between the customer and
third-party providers of such third-party products, services, and/or 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.
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.
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 the customer’s requirements; (ii)
will be compatible with the 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, 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 the 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 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.