Fempower Health Terms of Service
Last updated: May 15, 2020
Welcome to Fempower Health. These Terms of Service (the “Terms”) apply to the Fempower Health website located at www.fempower-health.com and all other sites, mobile sites, services, applications, platforms and tools where these Terms appear or are linked to (collectively, the "Website”). As used in these Terms, "Fempower Health", “Fertility4Me”, "us" or "we" refers to Fertility for Me, Inc, a Delaware corporation d/b/a Fempower Health, and its subsidiaries and affiliates.
You should be aware that Fempower Health is not a provider of medical advice. Before you take any action that may affect your health or safety or the health or safety of your family or fetus, please consult with a professional. If you think you may have a medical emergency, cal 911 or your healthcare provider immediately.
PLEASE READ THE FOLLOWING CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS: THESE TERMS REQUIRE THE USE OF ARBITRATION (ON AN INDIVIDUAL BASIS ONLY; I.E., CASE CONSOLIDATIONS AND CLASS-ACTIONS ARE NOT PERMITTED) IN ORDER TO RESOLVE DISPUTES. PLEASE REVIEW THESE TERMS IN THEIR ENTIRETY BEFORE ACCESSING OR USING THE WEBSITE, SERVICES (DEFINED BELOW) OR CONTENT (DEFINED BELOW) IN ORDER TO CONFIRM YOUR ACCEPTANCE HEREOF. YOU MAY NOT ACCESS OR USE THE WEBSITE, SERVICES OR CONTENT OR ANY PART THEREOF YOU: (A) AGREE TO THESE TERMS IN THEIR ENTIRETY; (B) ARE AT LEAST 13 YEARS OLD; AND (C) ARE NOT PROHIBITED FROM ACCESSING OR USING THE WEBSITE, SERVICES OR CONTENT BY ANY APPLICABLE LAW, RULE, OR REGULATION. BY ACCESSING OR OTHERWISE USING THE WEBSITE, SERVICES OR CONTENT YOU AGREE TO THESE TERMS. IF AT ANY TIME YOU DO NOT ACCEPT ALL OF THESE TERMS, YOU MUST IMMEDIATELY STOP ACCESSING OR USING THE WEBSITE, SERVICES OR CONTENT.
1. APPLICABILITY OF TERMS. These Terms describe a contractual agreement between you, the user of the Website (“you”, “your”), and FEMPOWER HEALTH regarding your access to and use of, the Website, any element of our services provided on or through the Website (collective, the “Services”), any Content, and various other matters discussed herein. For the avoidance of doubt, any person or entity who interacts with the Website through the use of crawlers, robots, browsers, data mining or extraction tools, or other functionality, whether such functionality is installed or placed by such person or entity or a third party, is considered to be using the Website and therefore shall be subject to these Terms.
3. ADDITIONAL TERMS. Access to or use of the Website, Services, Content or parts thereof, as well as certain FEMPOWER HEALTH offers and programs (e.g. discounts or coupons) may be governed by additional terms, guidelines, and policies (collectively, "Additional Terms"). By accessing, using or otherwise taking advantage of any such parts of the Website, Services or Content or any such FEMPOWER HEALTH offers or programs (as the case may be), you agree to all applicable Additional Terms. All Additional Terms are incorporated into these Terms by reference, and any reference to these Terms includes all such Additional Terms.
4. FEMPOWER HEALTH DOES NOT OFFER MEDICAL ADVICE. THE WEBSITE, SERVICES, AND CONTENT, INCLUDING WITHOUT LIMITATION ANY ADVICE, RECOMMENDATIONS OR OTHER INFORMATION PROVIDED BY FERTILITY4ME OR ANY MEDICAL EXPERTS, SPONSORS, AFFILIATES, OR BUSINESS PARTNERS THAT YOU MAY OBTAIN THROUGH YOUR ACCESS TO OR USE OF THE WEBSITE, SERVICES OR CONTENT, ARE PROVIDED FOR YOUR INFORMATION ONLY. THE WEBSITE, SERVICES, AND CONTENT DO NOT CONSTITUTE PROFESSIONAL MEDICAL ADVICE, DIAGNOSES, OR TREATMENT, AND YOU SHOULD NOT RELY ON THEM AS SUCH. YOUR PHYSICIAN HAS PARTICULAR MEDICAL KNOWLEDGE ABOUT YOU AND YOUR HEALTH AND SHOULD ALWAYS BE CONSULTED IF YOU HAVE A MEDICAL EMERGENCY OR QUESTIONS ABOUT A MEDICAL CONDITION. YOUR DECISION TO RELY ON ANY CONTENT OR OTHER INFORMATION, CONTENT OR MATERIALS YOU OBTAIN IN CONNECTION WITH YOUR ACCESS TO OR USE OF THE WEBSITE, SERVICES OR CONTENT IS AT YOUR SOLE DISCRETION AND RISK. FERTILITY4ME DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TEST, PHYSICIANS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION PROVIDED BY FERTILITY4ME OR OTHER VISITORS APPEARING ON OUR WEBSITE. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BASED ON SOMETHING YOU READ ON OUR WEBSITE.
IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL 911 OR YOUR HEALTHCARE PROVIDER IMMEDIATELY.
5. MODIFICATION AND TERMINATION.
5.1. FEMPOWER HEALTH may at any time without prior notice or liability: (i) modify or discontinue any part of the Website, the Services or the Content; (ii) charge, modify or waive any fees required to use the Website, the Services or the Content; or (iii) offer opportunities to some or all Website users. FEMPOWER HEALTH reserves the right to make changes to these Terms at any time, and such changes will be effective immediately upon being posted on the Website. Each time you use the Website, you should review the current Terms. You can determine when these Terms were last revised by referring to the "LAST UPDATED" legend at the top of these Terms. Your continued use of the Website will indicate your acceptance of the current Terms; however, any change to these Terms after your last usage of the Website will not be applied retroactively.
5.2. FEMPOWER HEALTH reserves the right, in its sole discretion, to restrict, suspend, or terminate any agreement formed with you pursuant to these Terms, your access to all or any part of the Website, Services or Content at any time and for any reason (including if we believe that you have engaged in any suspected fraudulent or abusive activity, or violated or acted inconsistently with the letter or spirit of these Terms) without prior notice or liability. All provisions of these Terms or any other party of the agreement between you and FEMPOWER HEALTH formed pursuant to these Terms which by their nature should survive termination shall survive termination, including licenses of User Content, ownership provisions, warranty disclaimers, indemnity, limitations of liability, class action waivers and arbitration. Furthermore, if you violate any part of these Terms, your right to access and/or use the Website, Services and Content shall be deemed automatically terminated and you shall immediately (a) cease all use of the Website, Services or Content and (b) ensure the destruction of any copies of any Content you have made or that are under your control.
6. USE OF THE WEBSITE, THE SERVICES, AND THE CONTENT.
6.1. Content. The Website and Services contain or makes available to you various information, materials and content, including but not limited to software, text, graphics and images (collectively referred to as the “Content”). We may own the Content, or portions of the Content may be made available to us through arrangements that we have with third parties. We do not guarantee that any Content you access on or through the Website or Services is or will continue to be accurate. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy or display the Content, including but not limited to use of framing or mirrors, except as permitted under these Terms. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
6.2. FERTILITY4ME Trademarks. The trademarks, service marks, and logos of FEMPOWER HEALTH (the “FEMPOWER HEALTH Trademarks”) used and displayed in connection with the Website, Services, and Content are registered and unregistered trademarks or service marks of FEMPOWER HEALTH. Other company, product, and service names located on the Website or otherwise used in connection with the Website, Services or Content may be trademarks or service marks owned by third parties (the “Third Party Trademarks”, and, collectively with the FEMPOWER HEALTH Trademarks, the “Trademarks”). Nothing on or made available to you on or through the Website or in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Website or otherwise used in connection with the Website, Services or Content without our prior written consent specific for each such use. The Trademarks may not be used to disparage us or any applicable third party, our or the applicable third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any FEMPOWER HEALTH Trademarks as part of a link to or from any website is prohibited without our prior written consent. All goodwill generated from the use of any FEMPOWER HEALTH Trademark shall inure to our benefit.
6.3. Third-Party Platforms and Services.
6.3.1. FEMPOWER HEALTH may use certain third-party websites, services or other resources on the Internet to help provide certain Services or Content (for example, a third-party service that allows you to fill out FEMPOWER HEALTH surveys). In other instances, FEMPOWER HEALTH may provide links to third-party websites, services or other resources including our partners and social media networks. Collectively, these third-party websites, services, and other resources are referred to in these Terms as “External Platforms”.
6.3.2. Any links to any External Platforms or any arrangements between FEMPOWER HEALTH and an External Platform to help make certain Services available to you are provided solely as a convenience to you and not as an endorsement by FEMPOWER HEALTH of any content on such External Platforms that is not solely provided by or at the direction of FEMPOWER HEALTH. We are not responsible for the content of any External Platforms and do not make any representations regarding the content or accuracy of any materials on such External Platforms except those materials that are solely provided by or at the direction of FEMPOWER HEALTH. You should take precautions when downloading files from all External Platforms to protect your computer from Viruses (defined below). If you decide to access any External Platform, including in connection with accessing or using any Services, you do so at your own risk. You acknowledge and agree that FEMPOWER HEALTH shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, technology, goods, products or services available on or through any External Platforms, whether that use or reliance is related to your accessing or using any Services or not.
6.3.3. In the event that you use any External Platform to access or use any of the Services, you agree to follow all terms, conditions, and notices applicable to accessing or using such External Platform. If you are not willing to accept all of an External Platform’s terms and conditions, you are not permitted to use that External Platform to access or use any of the Services.
6.4. Third-Party Offers. In exchange for participating in certain activities on or through the Website, FEMPOWER HEALTH may provide you with one or more coupons, discount codes, offers or the like (a “Partner Offer”) for a product, service or other kind of good to be provided or supplied by a FEMPOWER HEALTH partner (a “Partner”). You hereby acknowledge and agree that your use of any Partner Offer is at your sole discretion and solely at your own risk. FEMPOWER HEALTH makes no representations, warranties or guarantees about, and shall have no responsibility or liability whatsoever for, any Partner Offer, any product, service or other good that may be obtained or provided to you through a Partner Offer or any part thereof. Each Partner Offer and any associated transaction commenced or completed related to a Partner Offer is solely between you and the applicable Partner, and FEMPOWER HEALTH shall not be a party to any such transaction or agreement. You are solely responsible for making all inquiries that may be necessary for you to determine whether to use a Partner Offer or not and for your compliance with any terms and conditions associated with such Partner Offer, including but not limited to any expiration date. exclusions, or minimum purchase requirement.
6.5. Feedback. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Website, Services or Content (collectively, “Feedback”) that you provide to us are non-confidential and we will be entitled to the unrestricted use and dissemination of any such Feedback for any purpose, commercial or otherwise, without your acknowledgment or compensation to you.
6.6. User Content. In addition to any Feedback you provide, in connection with the Website and Services, you may participate in blogs, message boards, online/mobile forums and other functionality that may be viewed by other users and/or members of the general public or you may otherwise provide to or upload through the Website or share with other Website users or recipients content, materials or information (any such content, materials and information, together with all Feedback, “User Content”). You represent and warrant that you own all right, title and interest in and to such User Content, including all copyrights and rights of publicity contained therein, and that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
6.7. License to User Content. By uploading any User Content to the Website you hereby grant and will grant FEMPOWER HEALTH and its affiliated companies, successors and assigns a non-exclusive, worldwide, royalty-free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to reproduce, adapt, publish, create derivative works from, copy, display, upload, publicly perform, distribute, store, modify and otherwise use your User Content and any name, username, likeness, voice or photograph provided in connection with your User Content, without compensation to you, in connection with the operation of the Website or the promotion, advertising or marketing of the Website, Services or Content, in any form, medium or technology now known or later developed, and including after you cease all use of the Website, Services and Content. For clarity, the foregoing license does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third-party rights, including any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
6.8. Moral Rights. Except where prohibited by applicable law, by submitting User Content through the Website, you are waiving and agreeing not to assert any copyrights or “moral” rights or claim resulting from our alteration of any User Content (including any video, photograph(s), illustrations, statements or other work contained in the User Content). You are also agreeing to appoint FEMPOWER HEALTH as your irrevocable attorney-in-fact with respect to the User Content, with the right to execute and deliver any documents, in your name and on your behalf, to ensure that we can use the User Content that you are licensing in any way we see fit, own and protect the rights in any derivative works created from your User Content, and have the User Content removed from any other website or forum.
6.9. Preservation and Disclosure of User Content. You acknowledge and agree that we may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms or any other agreement between you and FEMPOWER HEALTH related to the Website, Services or Content or any transactions contemplated by these Terms; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of FEMPOWER HEALTH, our users and the public. You understand that the technical processing and transmission of the Website, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
7. Prohibited Conduct and Prohibited User Content. You shall not (and shall not permit any third party to) access or use the Website, Services, Content or External Platforms or any part thereof in any way, or create (or permit any third party to create) any User Content, that:
7.1. includes any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap or includes profanity or any obscene, indecent, pornographic, sexual or otherwise objectionable content or language;
7.2. defames, libels, ridicules, mocks, disparages, threatens, harasses, intimidates or abuses anyone;
7.3. promotes violence, illegal drug use, or substance abuse or describes how to perform a violent act, use illegal drugs or abuse other substances;
7.4. violates the contractual, personal, intellectual property or other rights of any party, or promote or constitute illegal activity;
7.5. is in violation of these Terms, any local, state, federal or international law, rule or regulation or the rules of conduct posted with respect to the Website, Services, or Content or any part thereof;
7.6. reveals any personal information about another individual, including another person's address, phone number, e-mail address, credit card number or any information that may be used to track, contact or impersonate that individual;
7.7. attempts to impersonate any other party or misleads others as to the origins of your communications, tricks, defrauds or misleads FERTILITY4ME or other users or involves you knowingly providing false or inaccurate information to FEMPOWER HEALTH;
7.8. makes improper use of FEMPOWER HEALTH's support services or submits false reports of abuse or misconduct;
7.9. engages in any commercial activities, including any attempt to raise money for anyone or advertises or promotes a product, service, website, pyramid scheme or other multi-tiered marketing scheme, without the prior written consent of FEMPOWER HEALTH;
7.10. creates or transmits unwanted electronic communications such as "spam," to other users of the Website, Services or Content or otherwise interferes with other users' enjoyment of the Website, Services or Content;
7.11. disparages, tarnishes, or otherwise harms, in FEMPOWER HEALTH’s opinion, FEMPOWER HEALTH, the Website, Services, Content or any part thereof;
7.12. disseminates or transmits viruses, worms, Trojan horses, RATs, keyboard loggers, time bombs, spyware, adware, cancelbots, passive collection mechanisms, or any other malicious or invasive code or programs or uploads or transmit s(or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including clear graphics interchange formats ("gifs"), 1x1 pixels, web bugs, cookies or other similar devices (collectively, “Viruses”);
7.14. except as may be the result of standard search engine or Internet browser usage, uses or launches, develops or distributes any automated system, including any spider, robot (or "bot"), cheat utility, scraper or offline reader that accesses the Website, Services or Content, or uses or launches any unauthorized script or other software;
7.15. covers or obscures any notice, banner, advertisement or other branding on or in the Website, Services or Content;
7.16. interferes with or circumvents any security feature of the Website, Service or Content or any feature that restricts or enforces limitations on use of or access to the Website, Services or Content; or
7.17. involves sharing your access to the Website, Services or Content or any other information downloaded or collected from the Website, Services, or Content with any other person without FEMPOWER HEALTH’s prior written consent.
8. DISCLAIMER OF WARRANTIES. FEMPOWER HEALTH AND ITS PERSONNEL MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, COMPLETENESS, APPROPRIATENESS FOR A PARTICULAR PURPOSE, RELEVANCE, TIMELINESS, SECURITY, ERROR-FREE FUNCTIONING, VIRUS-FREE STATUS OR ACCURACY OF THE WEBSITE, SERVICES, CONTENT, ANY PARTNER OFFERS MADE AVAILABLE BY FEMPOWER HEALTH OR ANY EXTERNAL PLATFORMS OR ANY INFORMATION, MATERIALS, CONTENT, PRODUCTS, SERVICES OR OTHER GOODS MADE AVAILABLE FROM ANY OF THEM FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE WEBSITE, SERVICES, AND CONTENT, AS WELL AS ANY OTHER INFORMATION, MATERIALS OR CONTENT MADE AVAILABLE FROM, ON OR THROUGH THE WEBSITE, THE SERVICES OR ANY EXTERNAL PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITION OF ANY KIND AND ARE ACCESSED OR USE BY YOU SOLELY AT YOUR OWN RISK. FEMPOWER HEALTH DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE WEBSITE, SERVICES, CONTENT, EXTERNAL PLATFORMS, PARTNER OFFERS OR ANY RELATED PRODUCTS, SERVICES OR OTHER GOODS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE EXTENT THAT FEMPOWER HEALTH MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
9. LIMITATION OF LIABILITY.
9.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FEMPOWER HEALTH OR ITS SUPPLIERS OR VENDORS, OR ITS OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, AFFILIATES, SUPPLIERS, VENDORS, LICENSORS, CO-BRANDERS OR PARTNERS (COLLECTIVELY, "FEMPOWER HEALTH PARTIES") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM ANY INJURY, DAMAGE TO ANY PERSON OR PROPERTY, LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, LITIGATION, OR ANY OTHER PECUNIARY LOSS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE, OPERATION, PERFORMANCE OR ANY OTHER MATTER RELATED TO THE WEBSITE, THE SERVICES, THE CONTENT, ANY EXTERNAL PLATFORM OR ANY PARTNER OFFER OR RELATED PRODUCT, SERVICE OR OTHER GOODS, INCLUDING WITHOUT LIMITATION ANY DELAY OR INABILITY TO USE THE WEBSITE, SERVICES, OR CONTENT, ANY DEFECTS IN THE WEBSITE, SERVICES, OR CONTENT, OR WITH THE FAILURE TO MAKE AVAILABLE, ANY SERVICES, INFORMATION, MATERIALS, CONTENT, SERVICES, PARTNER OFFERS, EXTERNAL PLATFORMS OR OTHER RESOURCES AVAILABLE ON OR ACCESSIBLE THROUGH THE WEBSITE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE OPERATION OF THE WEBSITE AND THE SERVICES, AND THE ERROR-FREE STATUS AND AVAILABILITY OF THE CONTENT, MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND FEMPOWER HEALTH'S OR ITS SUPPLIERS' OR VENDORS' CONTROL. THE OPERATION OF THE WEBSITE AND THE SERVICE, WHETHER BY FEMPOWER HEALTH, ITS SUPPLIERS OR ITS VENDORS, MAY NOT BE SECURE. SECURITY AND PRIVACY RISKS CANNOT BE ELIMINATED.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH FEMPOWER HEALTH PARTNERS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, YOU HEREBY RELEASE FEMPOWER HEALTH FROM ANY AND ALL CLAIMS OR LIABILITY (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR PERSONAL INJURY, DEATH, OR DAMAGE TO OR LOSS OF PROPERTY) RELATED TO ANY PRODUCT OR SERVICE OF A PARTNER, ANY ACTION OR INACTION BY PARTNER, PARTNER’S FAILURE TO COMPLY WITH APPLICABLE LAW, PARTICIPATION IN A PARTNER OFFER, OR USE OR MISUSE OF ANY PARTNER OFFER.
9.3. ANY LIABILITY ON THE PART OF THE FEMPOWER HEALTH PARTIES, IN THE AGGREGATE, SHALL NOT EXCEED THE FEES PAID BY YOU (IF ANY) TO FEMPOWER HEALTH DURING THE TWELVE-MONTH PERIOD PRECEDING THE CAUSE OF SUCH LIABILITY.
9.4. You acknowledge and agree that the limitations set forth above are fundamental elements of these Terms and any agreement formed between you and FEMPOWER HEALTH pursuant to them and none of the Website, Services, Content or Partner Offers would be provided to you absent such limitations.
9.5. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH JURISDICTIONS, THE LIABILITY OF THE FEMPOWER HEALTH PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. NOTHING IN THESE TERMS AFFECTS ANY LEGAL RIGHTS AND REMEDIES YOU HAVE UNDER LOCAL LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR THE RELEASED PARTY".
10. INDEMNIFICATION. To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless the FEMPOWER HEALTH Parties from and against any claims, actions or demands, including reasonable legal and accounting fees, arising or resulting from your breach of these Terms and/or or your access to, use or misuse of the Website, Services, Content, External Platforms or Partner Offers. We shall provide notice to you of any such claim, suit, or proceeding that triggers this indemnification obligation, and you agree to do the same by writing to the FEMPOWER HEALTH at firstname.lastname@example.org. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
11. ARBITRATION CLAUSE & CLASS ACTION WAIVER.
11.1. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OR THE WEBSITE, SERVICES, CONTENT, ANY EXTERNAL PLATFORMS, ANY PARTNER OFFERS OR RELATED PRODUCTS, SERVICES OR OTHER GOODS, AND/OR ANY RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
11.2. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate.
11.3. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s access to, use of or other matter or matters related to the Website, Services or Content, any External Platforms, any Partner Offers or related products, services or other goods, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with these Terms, the Website, Services or Content, any External Platforms, any Partner Offers or related products, services or other goods, must be filed within one (1) year after such claim of action arose or be forever banned.
11.4. The prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Section 11 will be null and void. This agreement to arbitration will survive the termination of your relationship with us.
12. YOUR COMPLIANCE WITH APPLICABLE LAWS. You are solely responsible for ensuring compliance with the laws of your specific jurisdiction and for abiding by all applicable local, state, and federal laws and regulations. In addition, you expressly acknowledge that the United States controls the export of products and information and agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By accessing, using or downloading the Website, Services or Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Website, Services or Content.
14. NOTICES. We may provide notices hereunder to you by: (i) email; (ii) regular mail; or (iii) posting them on the Website. You shall be responsible for ensuring that you have provided us with your current email and mailing addresses. You can contact us at any time by any of the following means: (a) by personal delivery, overnight courier, or registered or certified mail to Fertility for Me, Inc, 233 West 21st St., Apt 3B, New York, NY 10011, or (b) by email to email@example.com. Unless otherwise specified in these Terms, all notices to be provided to you in connection with these Terms or the Website will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
15. COPYRIGHT INFRINGEMENT MATTERS.
15.1. Our policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act ("DMCA"). Copyright-infringing materials found on the Website can be identified and removed via our process listed below, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.
15.2. If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide FEMPOWER HEALTHs copyright agent the written information specified below. Please note that this procedure is exclusively for notifying FEMPOWER HEALTH that your copyrighted material has been infringed. FEMPOWER HEALTH does not and will not make any legal decisions about the validity of your claim of infringement or the possible defenses to a claim. When a clear and valid notice is received pursuant to the guidelines set forth below, FEMPOWER HEALTH will respond by either taking down the allegedly infringing content or blocking access to it. FEMPOWER HEALTH may contact the notice provider to request additional information. Under the DMCA, FEMPOWER HEALTH is required to take reasonable steps to notify the user who posted the allegedly infringing content ("Alleged Infringer"). The Alleged Infringer is allowed under the law to send FEMPOWER HEALTH a counter-notification. Notices and counter-notices are legal notices distinct from regular Website activities or communications. We may publish or share them with third parties in our sole discretion (in addition to producing them pursuant to a subpoena or other legal discovery request). Anyone making a false or fraudulent notice or counter-notice may be liable for damages under the DMCA, including costs and attorneys’ fees. Any person who is unsure of whether certain material infringes a copyright held by such person or a third party should contact an attorney.
15.3. To file a DMCA notice, the copyright owner must send in a written letter by fax, regular mail, or email only. We reserve the right to ignore a notice that is not in compliance with the DMCA, and we may, but are not obligated to, respond to a non-compliant notice. A DMCA notice must:
● Identify specifically the copyrighted work(s) believed to have been infringed (for example, "My copyrighted work is the picture that appears at [list location where material is located].");
● Identify the Content that a copyright owner claims is infringing upon copyrighted work. The copyright owner must provide information reasonably sufficient to enable us to locate the item on the Website. The copyright owner should provide clear screenshots of the allegedly infringing materials for identification purposes only. The information provided should be as detailed as possible;
● Provide information sufficient to permit us to contact the copyright owner directly: name, street address, telephone number, and email (if available);
● If available, provide information sufficient to permit us to notify the Alleged Infringer (email address preferred);
● Include the following statement: "I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law";
● Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed";
● Be signed; and
● Be sent to our DMCA designated agent at the following address:
DMCA Designated Agent
Fertility for Me, Inc
233 West 21st St., Apt 3B
New York, NY 10011
16. IMPORTANT NOTE TO NEW JERSEY CONSUMERS. If you are a consumer residing in New Jersey, the following provisions of these Terms do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, punitive, special, exemplary, or consequential damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code, and New Jersey Consumer Fraud Act); (b) the limitation on liability for lost profits or loss or misuse of data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability, or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnify us (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) the governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
17. INTERPRETATION. When a reference is made in these Terms to a Section, such reference shall be to a Section of these Terms unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in these Terms, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in these Terms shall refer to these Terms as a whole and not to any particular provision of these Terms. The definitions contained in these Terms are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.