Terms of Service
Last updated: February 20, 2025
Fertu provides a cross-channel marketing platform that powers unified customer experiences and empowers you to create, optimize and measure interactions across the customer journey. You can access the platform through the Fertu website, Fertu APIs, and authorized applications.
Please read these Terms of Service (“Terms”) carefully before using any Services provided by Fertu. By using this or any of our websites, applications, services, or other properties (collectively, the “Services”) offered by Fertu, Inc. or its affiliates (“Fertu” or “us”), you acknowledge that you understand and agree to be bound by these Terms and any policies referenced herein. If you do not agree to these Terms, please do not use or register for any Services.
If you are using the Services on behalf of an organization, you agree to these Terms for that organization and represent and warrant that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization) unless that organization has executed a separate Enterprise Order and/or Master Services Agreement with Fertu, in which case the terms in those documents will supersede and take precedence over these Terms.
0. DEFINITIONS
“Affiliate” means, with respect to a party, any entity that directly or indirectly Controls, is Controlled by, or is under common Control with that party, where “Control” means the ownership of at least fifty percent (50%) of the equity or beneficial interests of the entity or the right to direct its management. (See also Section 2 on Customer Affiliates.)
“BAA” means a Business Associate Agreement entered into between Fertu and you, as required by HIPAA for the handling of Protected Health Information.
“Confidential Information” has the meaning set forth in Section 6 of these Terms.
“Customer Data” means any data, information, content, or material (including PHI if applicable) that you or your Authorized Users upload, submit, or otherwise transmit to or through the Services.
“Effective Date” means the date you first accept these Terms (e.g., by clicking “I agree” or by using the Services) or the date otherwise specified in an Order Form referencing these Terms, whichever is earlier.
“Fertu,” “we,” “us,” or “our” means Fertu, Inc. and its Affiliates.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, and its implementing regulations, as amended from time to time.
“Order Form” means any ordering document, statement of work, or online purchase confirmation that references these Terms and sets forth the specific Services, fees, and applicable Subscription Terms.
“PHI” or “Protected Health Information” has the meaning given to it under HIPAA.
“Services” means the cross-channel marketing platform, websites, Fertu APIs, authorized applications, tools, and related services provided by Fertu, as well as any updates or modifications thereto.
“Subscription Term” means the initial term of your subscription to the Services, as specified in the applicable Order Form, plus any Renewal Terms, as described in Section 3.4 of these Terms.
“TCPA” means the Telephone Consumer Protection Act (47 U.S.C. § 227), as amended, and its implementing regulations.
“Terms” means these Terms of Service, any applicable policies (such as our Anti-Spam Policy), and any Order Form(s) or other documents expressly incorporated herein.
“Third Party Services” means any websites, applications, products, or services not operated by Fertu that may interoperate or integrate with the Services or be accessed by you or your end users via the Services.
“You,” “your,” or “Customer” means the individual or legal entity that has agreed to these Terms, including, if applicable, that entity’s Affiliates authorized to use the Services under the same subscription (or under separate Order Forms), together with all users accessing the Services on your behalf.
1. CHANGES TO THESE TERMS
We reserve the right to modify these Terms. If we make material changes to these Terms, we will notify you via the Services and/or by email. You will be responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Services following such notification constitutes your acceptance of the updated terms. If at any time you do not agree to the updated terms, you may terminate your use of the Services. You will still remain liable for any obligations incurred or charges accrued on or before the date of termination.
2. ACCESS TO THE SERVICES
Registration. As a condition to using certain Services, you may be required to supply Fertu with registration information. For example, if you request a demo, you will be asked to provide information such that we can follow-up with you on your inquiry. You agree to provide Fertu with accurate, complete, and updated information. You agree not to use another user’s account or registration information, for Fertu or any third party services you access through Fertu, without permission. Fertu reserves the right to refuse registration of or cancel an account in its discretion. You shall be responsible for maintaining the confidentiality of your Fertu account credentials and for all activity of any person who accesses the Services using your account credentials and account.
Provision of Services. Subject to these Terms, Fertu may provide Services, which are selected by you, solely for your own use, and not for the use or benefit of any third party. Fertu may change, suspend or discontinue the Services for any reason, at any time, including the availability of any feature. Fertu may also restrict your access to parts or all of the Services without notice or liability.
Your Responsibilities. You acknowledge and agree that if you provide data regarding your end user campaigns to Fertu in connection with your use of the Services (“Customer Data”), you hereby grant Fertu a non-exclusive, worldwide, royalty-free, transferable right to use, modify, reproduce, and display such Customer Data (including all related intellectual property rights) to
(i) provide the Services you have selected and (ii) improve the Services’ ability to deliver web and application analytics services to you. You warrant, represent and agree (i) that you have the authority to grant Fertu the rights set forth above as well as the rights to any Customer Data that you provide through the Services, (ii) you bear all responsibility and liability for the accuracy, completeness, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right of the Customer Data and Fertu’s access, possession and use as permitted herein, (iii) you are responsible to provide notice and obtain any legally required consent for your collection, use and disclosure of Customer Data to the Services, (iv) you will not contribute or provide any Customer Data or content that (a) infringes or violates any copyright or trademark or trade secret of another party, (b) infringes any intellectual property right or the privacy or publicity rights of another, (c) is libelous, defamatory, obscene, pornographic, harassing, hateful, offensive or otherwise violates any law or right of any third party, (d) contains a virus, trojan horse, worm, or other computer programming routine or engine intended to detrimentally interfere with any system, data or information, or (e) causes damage to the Fertu Services or its customers in any way. Fertu reserves the right to remove any Customer Data from the Services at any time, for any reason or for no reason at all. Fertu may, but is not obligated to, monitor Customer Data and remove any content or prohibit any use of the Services, including by refusing to send messages to your end users, if Fertu believes in its sole discretion such content or use may be (or is alleged to be) in violation of these Terms or any applicable laws or may impact delivery. All information transmitted through the Services is the sole responsibility of the party from whom such information originated. Fertu does not assume liability for any Customer Data or Customer content. You are responsible for all Customer Data and content submitted under your account, including Customer Data contributed by a third party under your account. (v) if you (or your end users) will upload, transmit, or otherwise provide any Protected Health Information as defined under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as amended (“HIPAA”), you agree that prior to doing so, you and Fertu will enter into a separate Business Associate Agreement (“BAA”). That BAA will govern each Party’s rights and obligations with respect to PHI. In the event of any conflict between these Terms and the BAA, the BAA controls solely with respect to PHI.
2.1 Customer Affiliates
Use by Affiliates. Subject to these Terms, any Affiliate of Customer may access or use the Services under the same subscription purchased by Customer, provided that (a) such use is solely for the benefit of Customer or that Affiliate, and (b) Customer remains fully responsible for each Affiliate’s compliance with these Terms.
Separate Orders. If an Affiliate wishes to obtain its own subscription, it may sign a separate Order Form or agreement that references these Terms. Once signed, each such Affiliate will be considered a separate “Customer” for purposes of that Order Form or agreement, and will have all the rights and obligations set forth in these Terms with respect to its own subscription.
Responsibility. Customer guarantees and remains liable for all acts and omissions of its Affiliates relating to their use of the Services, including any breach of these Terms.
Definition of Affiliate. For purposes of these Terms, an “Affiliate” of a party is any entity that directly or indirectly Controls, is Controlled by, or is under common Control with that party, where “Control” means ownership of at least fifty percent (50%) of the equity or beneficial interests of the entity, or the right to direct the management of such entity.
3. FEES, BILLING, AND RENEWALS
3.1. Fees
Subscription Fees. You agree to pay all fees specified in each order form, statement of work, or online purchase confirmation referencing these Terms (each, an “Order Form”). Except as otherwise set forth in an Order Form, all fees are non-refundable, regardless of actual usage.
Overage Charges. If your subscription includes usage limits (e.g., a monthly contact volume or outreach-sending threshold), and you exceed those limits, Fertu may charge you overage fees at the then-current rates or as otherwise stated in your Order Form.
Changes to Fees. Fertu may change our standard fees for the Services at any time upon reasonable notice, but any fee changes will not take effect until the start of your next renewal term (unless otherwise stated in the Order Form).
3.2. Invoicing and Payment
Payment Method. You must provide a valid payment method (e.g., credit card or other electronic payment form) as specified in your Order Form or during account registration.
Billing Cycle. Unless otherwise provided in your Order Form, Fertu will bill you in advance for recurring subscription fees. Overages or additional usage fees may be billed in arrears on a monthly or quarterly basis.
Payment Due Date. All invoiced amounts are due and payable within thirty (30) days of the invoice date (or as specified in the applicable Order Form). You are responsible for maintaining complete and accurate billing information.
Late Payments. If any invoiced amount is not received by the due date, Fertu may, at its sole discretion, charge late fees or interest at the rate of 1.5% per month (or the highest rate permitted by law, if lower) on the outstanding balance, plus all reasonable expenses and attorneys’ fees incurred in collecting such delinquent amounts.
3.3. Taxes
All fees are exclusive of all sales, use, value-added, withholding, and other taxes or duties. You are responsible for paying all taxes associated with your purchases hereunder (excluding taxes on our net income, property, or employees). If Fertu has a legal obligation to pay or collect taxes for which you are responsible, Fertu will invoice you, and you agree to pay that amount unless you provide a valid tax exemption certificate authorized by the appropriate taxing authority.
3.4. Subscription Term and Renewal
Initial Term. Your subscription begins on the start date specified in your Order Form (“Subscription Start Date”) and continues for the duration stated in the Order Form (“Initial Term”), unless earlier terminated in accordance with these Terms.
Renewal Terms. Unless otherwise stated in an Order Form, your subscription will automatically renew for successive periods equal to the Initial Term (or another renewal term specified in the Order Form) at the end of the then-current term, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
Fee Increases at Renewal. Upon renewal, Fertu reserves the right to increase the fees for the upcoming renewal term, provided we notify you at least sixty (60) days before the end of your then-current term. Such increase will not exceed 7% (e.g., 7%) above the fees in effect for the immediately preceding term, unless otherwise stated in the Order Form or agreed upon in writing.
Upgrade / Downgrade. If you wish to upgrade or downgrade your subscription level or add/remove Services during a term, fees and any prorations will be handled per the Order Form or as otherwise agreed in writing.
Cancellation. If you do not wish to renew, you must notify us in writing in accordance with these Terms. Any prepaid fees for the remainder of the term are non-refundable (unless otherwise required by law or expressly stated in your Order Form).
3.5. Payment Disputes
If you dispute any invoice or portion thereof in good faith, you must notify us in writing within fifteen (15) days of the invoice date, providing sufficient detail about the nature of the dispute. Fertu will work with you in good faith to resolve the dispute. This provision does not relieve you of your obligation to pay any undisputed amounts on time.
3.6. No Refunds (Unless Specified)
Except as otherwise expressly provided in these Terms or in an Order Form, all fees are non-refundable. Any refunds or credits, if applicable, are at our sole discretion unless expressly required by applicable law.
3.7. Suspension of Services
Fertu reserves the right to suspend or terminate access to the Services for late or non-payment of fees. If Fertu suspends the Services for non-payment, you must pay all outstanding amounts due (including any interest or late fees) in order to have your access restored. Fertu is not liable for any damages, liabilities, or losses you may incur as a result of a suspension.
3.8. Effect of Termination
Upon expiration or termination of your subscription for any reason:
Outstanding Charges. Any outstanding fees through the effective date of termination remain due and payable, and Fertu may invoice you for any accrued but unbilled usage.
Data Access. If requested in writing within thirty (30) days of termination, Fertu will provide you a reasonable means to retrieve your data from our systems, subject to any additional fees for extended post-termination data access, if applicable.
Deletion. After such thirty (30) day period (or earlier if requested), Fertu will delete or anonymize all Customer Data in accordance with our data retention policies, unless legally prohibited or otherwise stated in any separate data processing or business associate agreement.
4. USE GUIDELINES
You are responsible for all of your (or any user you allow access to the Services) activity in connection with the Services. You may not post or transmit, or cause to be posted or transmitted, any communication designed or intended to obtain account credentials, account, or private information from any Fertu user. Fertu will not be liable for any failures in the Services or other problems which are related to your Customer Data, content, or any equipment or service outside of Fertu's facilities or control. You shall not use any part of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity. You will not run spam on or through the Services. You will use the Services only in compliance with all applicable laws (including but not limited to policies and laws related to spamming, privacy, intellectual property, consumer and child protection, obscenity, or defamation). You represent, warrant and covenant that your use of the Services shall at all times comply with Fertu’s policies including but not limited to Anti-Spam Policy, as may be amended by Fertu from time to time.
You represent, warrant, and covenant that:
(i) Consent and Permissions. For each individual you request Fertu to contact (including by SMS/text, email, or phone calls) via the Services:
You have obtained all legally required consents and authorizations consistent with the Telephone Consumer Protection Act (47 U.S.C. § 227) (“TCPA”), the CAN-SPAM Act of 2003, HIPAA (if applicable), and any other state or federal law regulating communication.
(ii) You will maintain records of such consents for at least seven (7) years from the date of the applicable outreach, and will provide evidence of consent to Fertu upon request.
Healthcare Messages. If any messaging is designated as a “healthcare message,” you represent it is being sent on behalf of a healthcare provider and meets all conditions required for such designation under applicable law.
(iii) Opt-Out Mechanisms. You will implement and honor any legally required “opt-out” or unsubscribe mechanism (including promptly transmitting opt-out requests to Fertu if required). You will maintain and comply with an internal Do Not Call list as required by the TCPA or other applicable laws.
(iv) Accuracy of Contact Data. You are responsible for the accuracy, completeness, and legality of the contact information and other data that you provide to Fertu.
5. PROPRIETARY RIGHTS
5.1. Your Proprietary Rights.
As between you and Fertu, you own and retain all rights, title, and interest in and to any data, content, code, text, software, or other materials of any type that you upload, submit, or otherwise transmit to or through the Services (“Customer Data”). You grant Fertu a non-exclusive, worldwide, royalty-free, fully paid-up license to use, copy, display, store, modify, and create derivative works of Customer Data solely for (i) providing the Services to you and (ii) in anonymized or de-identified form, improving and enhancing Fertu’s products, services, and operations, subject to any BAA in effect between the Parties if such Customer Data includes PHI. (ii) using your logo and name as appropriate verbally, on the Fertu website(s) and certain marketing materials. No rights are granted to either party hereunder other than as expressly set forth herein.
Fertu will not incorporate Customer Data that is not anonymized or de-identified into any product or service made available to other Fertu customers or the public.
5.2 Fertu Proprietary Rights. All contents of the Services including but not limited to logo, design, text, software, technical drawings, graphics, files and their selection and/or arrangement as well as Fertu Confidential Information belongs to Fertu (and/or its affiliates or licensors). Fertu or its licensors own and reserve all rights, title and interest in and to the Services and all software and other items used to provide the Services. No title to or ownership of any proprietary rights related to the Services of Fertu Confidential Information is transferred to you pursuant to these Terms. Any feedback, suggestions or recommendations relating to the Services or Fertu Confidential Information (“Feedback”) submitted to Fertu shall become the property of Fertu. Fertu will not be required to treat any Feedback as confidential, and will not be liable for any ideas or incur any liability as a result of any similarities that may appear in our future Services, or operations.
6. CONFIDENTIALITY
Confidential Information Defined. “Confidential Information” means proprietary or confidential information that is marked as “proprietary” or “confidential” or should reasonably be considered “proprietary” or “confidential” given the nature of the information and the circumstances surrounding disclosure that is provided by disclosing party (“Disclosing Party”) to the receiving party (“Receiving Party”). Information shall not be considered Confidential Information if it: (a) is or becomes publicly available through no fault, default or breach of or by the Receiving Party; (b) is acquired by the Receiving Party from an independent third party; (c) is or was independently developed by the recipient Receiving Party without use of, or reference to, Confidential Information of the Disclosing Party; (d) was lawfully known to the Receiving Party without an obligation of confidentiality prior to disclosure by the Disclosing Party; or (e) is furnished to others by the Disclosing Party without restriction on disclosure. For the avoidance of doubt, all information and data relating to the provision of Services shall be Fertu Confidential Information.
Obligations of Confidentiality. Each Party acknowledges that in connection with these Terms, such Party may gain access to Confidential Information of the other Party. The Receiving Party agrees to: (a) not use the Disclosing Party’s Confidential Information other than as strictly necessary to exercise its rights and perform its obligations under these Terms; (b) not use any of the Disclosing Party’s Confidential Information directly or indirectly in any manner to the detriment of the Disclosing Party or to obtain any competitive benefit with respect to the Disclosing Party; and (c) maintain the Disclosing Party’s Confidential Information in strict confidence and not disclose the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent.
Compelled Disclosure. Nothing in this Agreement shall prevent the Receiving Party from disclosing information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (a) assert the confidential nature of the information to the agency; (b) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose, to the extent permitted; and (c) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
HIPAA Business Associate Agreement.
If Customer Data includes PHI, the confidentiality and security obligations governing such PHI shall be governed by the BAA between Fertu and you, which supplements and, in the event of conflict, supersedes this Section 6 with respect to PHI.
7. WARRANTY DISCLAIMER
You acknowledge and agree that (i) you are legally permitted to entered into these Terms, (ii) Fertu has no special relationship with or fiduciary duty to you, and (iii) Fertu has no control over, and no duty to take any action regarding your Customer Data or messaging that you provide through the Services. Other than as expressly stated, Fertu does not make any commitments about the specific functionality available through the Services, their reliability, availability or ability to meet your needs. THE SERVICES AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR ENSURING YOUR USE OF THE SERVICES COMPLIES WITH ALL APPLICABLE HEALTHCARE, DATA PROTECTION, AND PRIVACY LAWS (INCLUDING HIPAA AND THE TCPA). FERTU DOES NOT PROVIDE LEGAL OR REGULATORY ADVICE, AND MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES WILL SATISFY LEGAL REQUIREMENTS APPLICABLE TO YOUR INDUSTRY OR JURISDICTION.
TO THE FULLEST EXTENT ALLOWED BY LAW, FERTU DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, RELIABILITY, AVAILABILITY, COMPLETENESS, LEGALITY OR OPERABILITY OF THE MATERIAL PROVIDED THROUGH THE SERVICES. BY USING THE SERVICES, YOU ACKNOWLEDGE THAT FERTU IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM RESULTING FROM (1) USE OF THE SERVICES; (2) DOWNLOADING INFORMATION CONTAINED ON THE SERVICES; (3) UNAUTHORIZED DISCLOSURE OF IMAGES, INFORMATION OR DATA THROUGH THE SERVICES; AND (4) THE INABILITY TO ACCESS OR RETRIEVE ANY DATA FROM THE SERVICES, INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES OR ANY SIMILAR DESTRUCTIVE PROGRAM.
8. THIRD PARTY SITES AND SERVICES
You or your end-users may gain access from the Services to third party sites or services. You understand and agree that these third party sites, resources or services (“Third Party Services”) are not within the supervision or control of Fertu. Fertu makes no representations or warranties about any Third Party Services, and does not endorse the Third Party Services. Fertu disclaims all responsibility and liability for Third Party Services. You hereby irrevocably waive any claim against Fertu with respect to Third Party Services. Third Party Services may require your agreement to additional or different license or other terms prior to your use or access of their sites or services. Any such agreement shall not in any way modify these Terms here with Fertu.
9. INDEMNITY
You will indemnify and hold Fertu, its directors, officers, employees, agents, and representatives harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your access to or use of the Services, your violation of these Terms, the Anti-Spam Policy or any acceptable use policy, or your infringement, or the infringement by any third party using your registration information, of any intellectual property, privacy right, or other right of any person or entity, including but not limited to any third party claims relating to your disclosure of end-user personally identifiable information of your end-users to Fertu.
10. LIMITATION OF LIABILITY
Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM EITHER PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THESE TERMS EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY YOU TO FERTU UNDER THE APPLICABLE ORDER FORM OR SUBSCRIPTION FOR THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
Exclusion of Indirect Damages. IN NO EVENT SHALL FERTU, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, MEMBERS, AGENTS AND REPRESENTATIVES BE LIABLE WITH RESPECT TO THE SERVICES FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND; (B) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, CUSTOMER DATA OR OTHER INTANGIBLES; (C) DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF THE SITE, ERRORS OR OMISSIONS; OR (D) DAMAGES RELATED TO DOWNLOADING OR USING RESULTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
11. TERMINATION
Fertu may terminate or suspend any and all Services immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon any such termination, your right to use the Services will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, indemnity, limitation of liability and warranty disclaimer.
Effect of Termination.
Upon termination, you must immediately cease all use of the Services. Each Party shall return or destroy (at the Disclosing Party’s request) any of the Disclosing Party’s Confidential Information in its possession. If you request within thirty (30) days after termination, Fertu will provide you with a copy of Customer Data in Fertu’s possession or control.
12. PRIVACY
Please review our Privacy Policy, which governs the use of personal information by Fertu and to which you agree to be bound as a user of the Services.
13. DISPUTE RESOLUTION
You agree that the Terms, and your relationship with Fertu will be governed by the laws of the State of Massachusetts, U.S.A. regardless of conflict of laws principles. You agree that all claims related to the Terms can only be litigated in the federal or state courts in Boston, Massachusetts, USA and agree to personal jurisdiction in those courts. You consent to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
However, you agree that Fertu can apply for injunctive remedies in any jurisdiction. You must comply with all domestic and international export laws and regulations that apply to your use of the Services, such as software. These laws include restrictions on destinations, end users, and end use. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this section. To the extent that the following provision is not in conflict with applicable law, you may only resolve disputes with us on an individual basis and may not bring a claim or proceed in a group arbitration proceeding as a plaintiff or a class member in a class, consolidated, or representative action.
14. MISCELLANEOUS
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Fertu shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Fertu's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable. These Terms are not assignable, transferable or sublicensable by you except with Fertu's prior written consent. Fertu may transfer, assign or delegate these Terms and any or all of its rights and obligations without consent. These Terms (including the Privacy Policy and Anti-Spam Policy) are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. Fertu may engage third-party subcontractors or subprocessors to perform Services under these Terms, provided that Fertu remains responsible for their performance. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority to bind Fertu in any respect whatsoever. Any notice that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by confirmed email to legal@fertu.com when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to: Fertu, Inc., 55 Court St. Second Floor Boston, MA 02203, Attn: Legal.
All rights reserved.