Terms of Service – Fertile Heart LLC

TERMS OF SERVICE

The Fertile Heart website accessible at www.fertileheart.com and Resource Center  accessible at www.resources.fertileheart.com (the “Site”) are owned by Fertile Heart LLC, (“Fertile Heart”). The Site provides Resources to help consumers with fertility challenges find health enhancing resources to assist them in resolving their fertility related issues.

ACCEPTANCE OF TERMS

By using the Site or any related sites, services, products, or applications, you agree to be bound by the following Terms of Service. If you choose not to agree to these Terms of Service you may not access or use the resources on the Site.

WHAT IS AVAILABLE TO YOU VIA THIS WEBSITE

Copying, modifying, reproducing, translating, selling or creating derivative works, or distributing the content in a manner not authorized by Fertile Heart is considered an infringement of our rights. Fertile Heart makes the materials and resources on the Site available to you, the user for personal non-commercial use only. The user may not use the site and its resources in any manner that has not be authorized by Fertile Heart.

THIRD PARTY RESOURCES AVAILABLE THROUGH THESE SITES

The resources and practitioners listed in the Fertile Heart Resource Center are consumers of the Fertile Heart Resource Center services. The posting of information about such services is  purchased for a fee and in no way implies endorsement of sponsorship of such practitioners and services. The user of such services is solely responsible for their own well being, for assessing the quality of services received and action taken as a result of such assessment. By registering for the Fertile Heart Resource Center services you acknowledge that you have clear understanding of the fact that Fertile Heart does not control any information on products or services provided by third parties through the Site or websites linked to through the Fertile Heart Resource Center or anywhere on the Site.

PLEASE READ THESE TERMS OF USE CAREFULLY.  BY ACCESSING, DOWNLOADING, OR USING ANY OF THE SITES AND SERVICES, YOU AGREE TO BECOME BOUND BY THESE TERMS AND CONDITIONS.  IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS, THEN YOU MAY NOT ACCESS AND USE THE SITES AND SERVICES.

MODIFICATIONS OF TERMS OF USE

Fertile Heart reserves the right to modify these Terms of Service on and in connection with the Site with or without notifying you. It is your responsibility to regularly review the information posted on the Site, the Terms of Service document and any pages related to the use of products, in order to be aware of amended terms.

If you choose not to agree with the amended terms you must stop using the Site and provide Fertile Heart with notice to unsubscribe you from all distribution lists or communication available through your use of the Site or any related sites, services, products, or applications.

YOUR CONTINUED USE OF THE SITE AND SERVICES AFTER SUCH POSTING (OR OTHER NOTIFICATION, IF ANY) MEANS YOU ACCEPT AND AGREE TO BE BOUND BY THE MODIFIED TERMS OF USE.

USE OF THE SITE AND SERVICES

Subject to full compliance with these Terms of Service, Fertile Heart grants authorized users a nonexclusive, nontransferable, non-sublicensable, terminable license to access and use the Sites and Services for your personal use. You agree to not access, reproduce, duplicate, copy, sell, re-sell, modify, distribute, transmit, or otherwise exploit the Sites or Services or any of their content for any purpose except for your personal use and as described in this Terms of Service. without the express written consent of Fertile Heart.

DELAYS, USE AND AVAILABILITY

The Sites and Services may be subject to limitations, delays, failure, and other problems inherent in the use of the Internet and electronic communications. Fertile Heart is not responsible for any delays, failures or other damage resulting from such problems.

CHANGES AND MODIFICATIONS

Fertile Heart may modify, update, suspend or discontinue the Sites and Services, in whole or in part, at our sole discretion for any or no reason, at any time and with or without notice.  Fertile Heart shall not be liable to any user or other third party for any such modification, update, suspension or discontinuance.

FERTILE HEART MEMBERSHIP, ACCOUNTS AND OTHER SERVICES

When using, accessing, or purchasing particular services or features of the Sites and Services, you shall be subject to any posted agreements, guidelines, or rules applicable to such services or features that may be posted from time to time.

REGISTRATION INFORMATION

Fertile Heart may require that you create an account and provide login information such as a username and password to access and utilize your account and to use or access certain parts of the Sites and Services and certain products and features. As a condition of your use of the Sites and Service, you agree to (a) provide Fertile Heart with true, accurate, current and complete information as prompted by the Fertile Heart’s registration forms, when registering for or using the Sites and Services and (b) update and maintain the truthfulness, accuracy and completeness of such information.

ACCOUNT ACCESS

You are responsible for maintaining the confidentiality of any password or other account information not generally available to others and are fully responsible for all activities that occur under your username and password. While there are limited, legitimate reasons for creating multiple accounts, creating serial or overlapping accounts may result in account termination.  Please contact us if you have questions about managing multiple accounts.

USER CONDUCT

As a condition of your access and use of the Sites and Services and your submission or access to any ratings, reviews, communications, information, data, text, photographs, audio clips, audiovisual works, or other materials on the Sites and Services (collectively, the “Content”), you agree not to use the Sites and Services for any purpose that is unlawful or prohibited by these Terms of Service, or any other purpose not reasonably intended by Fertile Heart. By way of example, and not as a limitation, you agree not to:

1. a) Use the Sites and Services in any manner that violates any relevant law or that infringes, misappropriates or violates any third party’s rights, including, but not limited to, transmitting any Content that may infringe, misappropriate or violate a third party’s rights of publicity, contractual rights, fiduciary rights or intellectual property rights;
2. b) Use the Sites and Services or its Content for any purposes not authorized by this Terms of Service, including commercial, political, or religious purposes, including the submission or transmission of any Content that contains advertisements, promotional materials, junk mail, or any other form of solicitation;
3. c) Sell, share, or otherwise transfer your account username, password, other information, or your rights or obligations under these Terms of Service;
4. d) Reproduce, duplicate, copy, modify, sell, re-sell or exploit any Content or the Sites and Services for any commercial, educational, or any other non-personal purpose or any for any purpose unrelated to your personal purchasing decisions, without the express written consent of Fertile Heart, which consent may be withheld by Fertile Heart in our sole discretion;
5. e) Post irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure, interfere or attempt to interfere with the proper working of the Sites and Services or any activities conducted on the Sites and Services;
6. f) Harass, threaten, intimidate, impersonate, or attempt to impersonate, any other person, falsify your contact or other information, misrepresent a relationship with any person or entity, including misrepresenting a relationship with Fertile Heart, or otherwise attempt to mislead others as to the identity of the sender or the origin of a review or rating;
7. g) Intentionally or unintentionally violate these Terms of Service, other applicable agreement with Fertile Heart, and any applicable local, state, national or international law, and any rules and regulations having the force of law;
8. h) Knowingly provide or submit false or misleading information;
9. i) Use the Sites and Services if you are under the age of eighteen (18);
10. j) Take any action that would undermine the review and rating process under the Sites and Services;
11. k) Probe, scan or test the vulnerability of the Sites and Services or any network connected to the Sites and Services, nor breach the security or authentication measures on or of the Sites and Services or any network connected to the Sites and Services. You may not reverse look-up, trace or seek to trace any information on any other user of the Sites and Services, or any other customer of Fertile Heart, including any Fertile Heart account not owned by you, to its source, or exploit the Sites and Services or any service or information made available or offered by or through the Sites and Services, in any way where the purpose is to reveal any information, including but not limited to personal identification or information other than your own information, except as expressly authorized by Fertile Heart and provided for by the Sites and Services;
12. l) Attempt to gain unauthorized access to the Sites and Services, other user accounts, or other computer systems or networks connected to the Sites and Services;
13. m) Use the Sites and Services in any way that could interfere with the rights of Fertile Heart or the rights of other users of the Sites and Services;
14. n) Attempt to gain unauthorized access to any portion or feature of the Sites and Services, or any other systems or networks connected to the Sites and Services or to any server used by Fertile Heart by hacking, password ‘mining’ or any other illegitimate or unauthorized means, including attempting to obtain password, account, or any other personal or private information from any other Sites and Services user;
15. o) Transmit or submit any transmission or other materials that are encrypted or that contains viruses, Trojan horses, worms, time bombs, spiders, cancelbots or other computer programming routines that is likely or intended to damage, interfere with, disrupt, impair, disable or otherwise overburden the Sites and Services; or
16. p) Access, download, monitor, or copy any information contained on our Sites and Services through artificial means (including but not limited to use any ‘deep-link’, ‘scraper’, ‘robot’, ‘spider’ or other automatic device, program, algorithm or methodology, or any similar or equivalent automatic or manual process, or in any way reproduce or circumvent the navigational structure or presentation of the Sites and Services or any content, to obtain or attempt to obtain any Content, materials, documents or information through any means not purposely made available through the Sites and Services.

SUBMITTING CONTENT

By submitting a post or any other material you are also giving Fertile Heart an irrevocable, perpetual, non-exclusive world-wide right to copy, modify, transmit, such material without notifying you of such use.

If you submit any material, such as—comments on blogs, forums, photos, videos—through the Site, you are, by submitting, asserting that you are the owner of such materials, or you have received permission from the owner of the materials to post them on the Site.

As long as the link doesn’t imply endorsement or sponsorship of you site or work by Fertile Heart, you may create a hyperlink to our Site. Unless granted written permission to do so, you may not frame of inline link any of the content of the Site. Not do you have permission to incorporate into another website or other service any of the intellectual property on the Site.

As a condition of submitting any Content or other materials to the Sites or Services, you agree that:

1. a) You represent that you own or have secured all legal rights necessary for the Content submitted by you to be used by you, Fertile Heart, and others as described and otherwise contemplated in these Terms of Service;
2. b) You grant to Fertile Heart a royalty free, perpetual, irrevocable, worldwide, nonexclusive, transferable, and sub-licensable license to use, reproduce, copy, adapt, modify, merge, distribute, publicly display, create derivative works from, incorporate such Content into other works; grant to Fertile Heart all rights necessary to publish or refrain from publishing your name and address in connection with your Content; sublicense through multiple tiers the Content, and acknowledge that this license cannot be terminated by you once your Content is submitted to the Sites and Services;
3. c) Your name and report information may be made available to the public and to the Resources on which you report;
4. d) You grant to Fertile Heart all rights necessary to prohibit the subsequent aggregation, display, copying, duplication, reproduction, distribution, or exploitation of your Content by any other party;
5. e) You represent and warrant that each person identified, depicted, or shown in in your Content, if any, (and if a minor, the parent or guardian of the minor) has provided consent to the use of the Content consistent with these Terms of Service;
6. f) You are solely responsible for your reviews and ratings;
7. g) Fertile Heart may, in its sole discretion, choose to remove or not to remove reviews and ratings once published;
8. h) You will not submit any reviews that may be considered by Fertile Heart to be infringing, harassing, libelous, abusive, threatening, obscene, profane, hateful, offensive, harmful, vulgar, distasteful, defamatory, or otherwise violates any relevant law or right of any other party, or racially, ethnically or otherwise objectionable;
9. i) All of your reviews and ratings will either be based upon (i) your actual first-hand experiences with the Resources you are reviewing or (ii) as provided below, an individual and that individual’s actual first-hand experience with a health care or wellness provider whereby you have the legal authority to disclose such health information and experience of such individual;
10. j) All of your reviews and ratings of the Resources that you are rating will be accurate, honest, truthful, and complete in all respects;
11. k) You do not work for, own any interest in or serve on the board of directors of, any of the Resources for which you submit reviews and ratings;
12. l) You are not in any way related (by blood, adoption or marriage, if the Service Provider is an individual) to any of the Resources for which you submit reviews or ratings;
13. m) You have not received any form of compensation to post reviews and ratings;
14. n) You will submit thorough and thoughtful reviews of the Resources you review (for example, submitting a review describing a Resource Provider as “He/She is great.” without additional commentary is not a thorough and thoughtful review);
15. o) You will not submit reviews that comment on other users or the reviews of other users;
16. p) You will not submit reviews with hyperlinks; or
17. q) The reviews and ratings that you provide do not reflect the views of Fertile Heart, its officers, managers, owners, employees, agents, designees or other users.

PUBLICATION AND DISTRIBUTION OF CONTENT

Fertile Heart cannot and does not guarantee the accuracy, integrity, quality or appropriateness of any Content transmitted to or through the Sites and Services. As a condition of submitting any Content or other materials to the Sites or Services, you agree that:

1. a) You understand that all posted on, transmitted through or linked through the Service, are the sole responsibility of the person from whom such Content originated;
2. b) You acknowledge that Fertile Heart simply acts as a passive conduit and an interactive computer service provider for the publication and distribution of user-generated;
3. c) You understand that Fertile Heart does not control, and is not responsible for Content or Service Provider Content made available through the Sites and Services, and that by using the Sites and Services, you may be exposed to Content that is inaccurate, misleading, or offensive;
4. d) You agree that you must evaluate and make your own judgment, and bear all risks associated with, the use of any Content;
5. e) You acknowledge that Fertile Heart has no obligation to screen, preview, monitor or approve any user-generated Content on the Sites and Services. However, Fertile Heart reserves the right to review, modify and/or delete any Content that, in its sole judgment, violates these Terms of Service;
6. f) By using the Sites and Services, you agree that it is solely YOUR RESPONSIBILITY to evaluate your risks to bear associated with the use, accuracy, usefulness, completeness or appropriateness of any Content that you submit, receive, access, transmit or otherwise convey through the Sites and Services;
7. g) Under no circumstances will Fertile Heart be liable in any way for any Content, including, but not limited to, any Content that contains any errors, omissions, defamatory statements, or confidential or private information (including, but not limited to, health information) or for any loss or damage of any kind incurred as a result of the use of any Content submitted, accessed, transmitted or otherwise conveyed via the Sites and Services;
8. h) You waive the right to bring or assert any claim against Fertile Heart relating to Content, and release Fertile Heart from any and all liability for or relating to any Content. Fertile Heart has no obligation to review, monitor, or remove any Content or other materials, except as required by law;
9. i) You may, however, report Content that you believe violates these Terms of Service or is otherwise unlawful by sending an email to help@fertileheart.com. Please note that you may be liable for damages (including costs and attorneys’ fees) for unlawful misrepresentations. If you are uncertain whether an activity is unlawful, we recommend seeking advice of an attorney;
10. j) You agree that Fertile Heart may establish general practices, policies and limits, which may or may not be published, concerning the use of the Sites and Services, including without limitation, the time that reviews and ratings will be retained, the maximum number of reviews and ratings that may be sent from an account, the length of reviews and ratings sent, and the maximum number of times and the maximum duration for which you may access the Sites and Services in a given period of time; and
11. k) You agree that Fertile Heart has no responsibility or liability for the deletion or failure to store any Content or other materials maintained or transmitted by or through the Sites and Services. You agree that Fertile Heart has the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

RESOURCES

Fertile Heart does not endorse and is not responsible or liable for any Content, data, advertising, products, goods or services available or unavailable from, or through, any third party or Service Provider (which includes, but is not limited to, fertility service providers, health care and wellness providers, and any other service or product providers). You agree that should you use or rely on such Content, data, advertisement, products, goods or services, available or unavailable from, or through any third party or Service Provider (which includes, but is not limited to, fertility service providers, health care and wellness providers, and any other service or product providers), Fertile Heart is NOT responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or participation in promotions of any Service Provider (which includes, but is not limited to, fertility service providers, health care and wellness providers, and any other service or product providers), and any other terms, conditions, representations or warranties associated with such dealings, are between you and such Service Provider (which includes, but is not limited to, fertility service providers, health care and wellness providers, and any other service or product providers) exclusively and do not involve Fertile Heart. You should make whatever investigation or other resources that you deem necessary or appropriate before hiring or engaging Resources (which includes, but is not limited to, fertility service providers, health care and wellness providers, and any other service or product providers).

Third parties and Resources may link or otherwise direct Internet users to our Sites and Services for the purpose of utilizing one or more of the services we provide on behalf of others. Additionally, we may provide links or otherwise direct you to third party or Service Provider websites. Fertile Heart does not control or operate any such third party or Service Provider websites. Any information you provide to these third party or Service Provider websites while on these third party or Service Provider websites is subject to the respective policies of those third parties or Resources, and not Fertile Heart’s policies. It is your responsibility to review such third party or Service Provider policies, including any relevant privacy policies. You agree that Fertile Heart will not be responsible or liable for, and does not endorse any content, advertising, goods or services provided on or through these outside websites or for your use or inability to use such websites. Fertile Heart does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give to any third party or Service Provider sites. You use these third party or Service Provider websites at your own risk.

You agree that Fertile Heart is not responsible for the accessibility or unavailability of any Service Provider (which includes, but is not limited to, health care and wellness providers) or for your interactions and dealings with them, waive the right to bring or assert any claim against Fertile Heart relating to any interactions or dealings with any Service Provider (which includes, but is not limited to, health care and wellness providers), and release Fertile Heart from any and all liability for or relating to any interactions or dealings with Resources (which includes, but is not limited to, fertility service providers, health care and wellness providers, and any other service or product providers).

Without limiting the foregoing, your correspondence or business dealings with, consumption of products or services of, or participation in promotions of, third parties or Resources found on or through the use of the Sites and Services, including payment for and delivery or fulfillment of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. You agree that Fertile Heart shall not be responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties or Resources on the Fertile Heart Sites and Services.

HEALTH RELATED PROVIDERS

The Sites and Services and its Content are for informational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Sites and Services.

If you think you may have a medical emergency, call your doctor or 911 immediately. Fertile Heart does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Sites and Services. Fertile Heart is not a health or wellness provider and cannot recommend or refer you to any health or wellness provider. Reliance on any information provided by Fertile Heart, its employees and others appearing on the Sites and Services at the invitation of Fertile Heart, or other visitors to the Sites and Services is solely at your own risk.

The Sites and Services may contain health-related materials that are sexually explicit. If you find these materials offensive, should not use the Sites and Services.

You should be aware that if you post any health-related information about yourself or anyone else on the Sites and Services, you do so at your own risk. If you post health information about services rendered to another individual, you represent that you have the legal authority to receive health information about that individual from that individual’s health care providers and that you have the legal authority to further disclose such health information. If you post health-related information, you will be placing it into the public domain which may violate federal or state laws that protect the privacy of health information. You also acknowledge that the health care or wellness provider about whom you submit Content may submit Content that contain your private or confidential health information in response to Content you submit. Fertile Heart is not liable for any such Content. Fertile Heart cannot be expected to keep you health information confidential if you post it to the Sites or Services or otherwise make it available to others.

TERMINATION OF ACCESS

Fertile Heart may terminate your privilege to use or access the Sites and Services immediately and without notice for any reason whatsoever.  Upon such termination, you must immediately cease accessing or using the Sites and Services and agree not access or make use of, or attempt to use, the Sites and Services. Furthermore, you acknowledge that Fertile Heart reserves the right to take action, technical, legal or otherwise, to block, nullify or deny your ability to access the Sites and Services.  You understand that Fertile Heart may exercise this right in its sole discretion, and this right shall be in addition to and not in substitution for any other rights and remedies available to Fertile Heart.

All provisions of these Terms of Service which by their nature should survive termination shall survive the termination of your access to the Sites and Services, including, without limitation, provision regarding ownership, warranty disclaimers, indemnity, and limitations of liability.

TRADEMARKS AND COPYRIGHTS

Fertile Heart, and other Sites and Services graphics, logos, designs, page headers, button icons, scripts, and service names are the trademarks or trade dress of Fertile Heart in the U.S. and/or other countries.  These trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, advertisements, or email addresses, or in connection with any product or service in any manner that is likely to cause confusion.

You should assume all Content and material made available on the Sites and Services is protected by copyright law. Aside from user-submitted Content, all other materials and other information on the Sites and Services, including, but not limited to, all text, graphics, logos, icons, images, audio and video clips, downloads, data compilations and software are the exclusive property of Fertile Heart and/or its licensors and are protected by all United States and international copyright laws.

NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

Fertile Heart respects the intellectual property of others. It is our policy to respond expeditiously to legitimate claims of copyright and other intellectual property infringement.  We will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws.  Upon receipt of notices complying or substantially complying with the DMCA, we may act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and may act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing.  We may terminate access for users of the Site and Service who infringe.

Notifying Fertile Heart of Copyright Infringement: To provide us with notice of an infringement, you must provide a written communication to help@fertileheart.com that sets forth the information specified by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is infringing your copyright.  We will need the following information from you:

1. a) Your address, telephone number, and email address;
2. b) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
3. c) A description of the copyrighted work or other intellectual property that you claim has been infringed;
4. d) A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf;
5. e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. f) A detailed description of where the material that you claim is infringing is located or found on the Sites and Services.

If we remove or disable access to Content in response to an infringement notice, we may make reasonable attempts to contact the owner or administrator of the affected content.  If your material has been removed and you feel that your material does not constitute infringement, you must provide a written communication to help@fertileheart.com that sets forth the information specified by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is not infringing the copyrights of others.  If you are uncertain whether an activity constitutes infringement, we recommended seeking advice of an attorney.

USER FEEDBACK

Fertile Heart wants to hear from you and all of our users. Please be advised, however, that our policy does not permit us to accept or consider creative ideas, suggestions, or materials other than those which we have specifically requested. Although we do value your feedback on our Sites and Services, please be specific in your comments regarding our services and do not submit creative ideas, suggestions or materials. If, despite our request, you send us creative suggestions, ideas, drawings, concepts or other information (collectively, the “Submissions”), such Submissions will be the property of Fertile Heart. In addition, none of the Submissions will be subject to any obligations of confidentiality and Fertile Heart will not be liable for any future use or disclosure of such Submissions.

WARRANTIES AND DISCLAIMERS

You acknowledge that Fertile Heart has no control over, and no duty to take any action regarding:

1. a) Which users gain access to or use the Sites and Services;
2. b) What effects the content on or in connection with the Sites and Services may have on you;
3. c) How you may interpret or use the content on or in connection with the Sites and Services; or d) What actions you may take as a result of having been exposed to the content on or in connection with the Sites and Services.

You release Fertile Heart from all liability for you having acquired or not acquired content or information through the Sites and Services. The Sites and Services may contain, or direct you to sites containing, information that some people may find offensive or inappropriate. Fertile Heart makes no representations concerning any content contained in or accessed through the Sites and Services, and Fertile Heart will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Sites and Services. Fertile Heart makes no guarantee or warranty, express or implied, as to the reliability, accuracy, timeliness or completeness of that information and assumes no responsibility for any errors or omissions therein.

YOU ACCESS AND USE THE SITES AND SERVICES AT YOUR OWN RISK. THE SITES AND SERVICES ARE PROVIDED ON AN ‘AS IS, AS AVAILABLE’ BASIS WITHOUT WARRANTY OF ANY KIND AND ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE SPECIFICALLY DISCLAIMED. NEITHER FERTILE HEART NOR ITS AFFILIATES, EMPLOYEES, AGENTS OR THIRD PARTY CONTENT PROVIDERS SHALL BE LIABLE FOR ANY LOSS RESULTING FROM USE OR UNAVAILABILITY OF INFORMATION OR CONTENT ON OR IN CONNECTION WITH THE SITES AND SERVICES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOSS OR DAMAGE TO DATA, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, COMPENSATORY OR INCIDENTAL DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER IS APPLICABLE TO ANY DAMAGE OR INJURY RESULTING FROM NEGLIGENCE OR OMISSION OF FERTILE HEART, COMPUTER VIRUS OR OTHER SIMILAR ITEM, TELECOMMUNICATIONS ERRORS, OR UNAUTHORIZED ACCESS TO, OR USE OF USER INFORMATION THROUGH THEFT OR ANY OTHER MEANS. WE ARE NOT LIABLE FOR CRIMINAL, TORTUOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF THIRD PARTIES THAT AFFECT THE SITES AND SERVICES. IN NO EVENT WILL FERTILE HEART OR ANY OF ITS DIRECTORS, OFFICERS, AFFILIATES, AGENTS, EMPLOYEES, ASSIGNS OR THIRD PARTY CONTENT PROVIDERS BE HELD LIABLE FOR ANY TORTUOUS OR ILLEGAL CONDUCT OF OTHER USERS. IN NO EVENT WILL FERTILE HEART OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES OR ASSIGNS BE HELD LIABLE FOR ANY DAMAGE TO EQUIPMENT, HARDWARE OR OTHER PROPERTY OF USER OR PERSONAL INJURY THAT ARISES IN CONNECTION WITH USE OF THE SITES AND SERVICES.

ANY MATERIAL ACCESSED, DOWNLOADED, OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITES AND SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FERTILE HEART OR THROUGH OR FROM THE SITES AND/OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE TERMS, FERTILE HEART DOES NOT REPRESENT OR WARRANT THAT (I) THE SITES AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SITES AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITES AND/OR SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, FERTILE HEART’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

FERTILE HEART SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SERVICES, BUT YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND FERTILE HEART HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.

Fertile Heart has no control over and no duty to take any action regarding: other users’ behavior; what effects Content may have on you; how you may interpret or use Content; or what actions you may take as a result of having been exposed to Content.  You release Fertile Heart from all liability for you having acquired or not acquired Content through the Sites and Services. Fertile Heart makes no representations concerning any Content, including the accuracy thereof, contained in or accessed through the Sites and Services, and Fertile Heart will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Sites and Services.

The Sites and Services may display links to other Internet sites or resources.  Because Fertile Heart has no control over such sites and resources, you acknowledge and agree that Fertile Heart is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources.  You further acknowledge and agree that Fertile Heart 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 use of or reliance on any such content, goods or services available on or through any such site or resource.

INDEMNITY

You agree to indemnify, defend and hold harmless Fertile Heart, its officers, managers, owners, employees, agents, designees, users, successors, assigns, Resources and suppliers from and against all losses, liabilities, expenses, damages, claims, demands and costs, including reasonable attorneys’ fees and court costs due to or arising from:

1. a) Any violation of these Terms of Service by you;
2. b) The inaccurate or untruthful Content or other information provided by you to Fertile Heart or that you submit, transmit or otherwise make available through the Service; or
3. c) Any intentional or willful violation of any rights of another or harm you may have caused to another. Fertile Heart will have sole control of the defense of any such damage or claim.

LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT FERTILE HEART, ITS OFFICERS, EMPLOYEES AND AGENTS WILL NOT BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF FERTILE HEART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) (COLLECTIVELY, “DAMAGES”), WITH RESPECT TO THE SITES AND SERVICES, INCLUDING, BUT NOT LIMITED TO: (A) THE USE OR INABILITY TO USE THE SITE AND SERVICES; (B) THE COST OF ANY GOODS AND/OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF THE USE OF THE SITES AND SERVICES; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, DATA, INFORMATION, OR CONTENT; (D) CONTENT YOU SUBMIT, RECEIVE, ACCESS, TRANSMIT OR OTHERWISE CONVEY THROUGH THE SITE AND SERVICES; (E) STATEMENTS OR CONDUCT OF ANY RESOURCES OR OTHER THIRD PARTY IN CONNECTION WITH OR THROUGH THE SITES AND SERVICES; (F) ANY OTHER MATTER RELATING TO THE SITES AND SERVICES; (G) ANY BREACH OF THESE TERMS OF USE BY FERTILE HEART OR THE FAILURE OF FERTILE HEART TO PROVIDE THE SERVICES UNDER THESE TERMS OF USE OR (H) ANY OTHER DEALINGS OR INTERACTIONS YOU HAVE WITH ANY RESOURCES (OR ANY OF THEIR REPRESENTATIVES OR AGENTS). TO THE EXTENT FERTILE HEART, ITS OFFICERS, EMPLOYEES AND AGENTS ARE FOUND LIABLE FOR ANY DIRECT DAMAGES RELATED TO THESE TERMS OF USE OR THE USE OF THE SITE AND SERVICES, LIABILITY FOR DAMAGES SHALL NOT EXCEED $100 IN THE AGGREGATE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

In some jurisdictions, limitations or exclusions of liability or damages are not permitted. In such jurisdictions, some of the foregoing limitations and exclusions may not apply to you.

BREACH OF TERMS OF USE AND LIQUIDATED DAMAGES

You understand that the content in each report or record on Fertile Heart has significant value to Fertile Heart and that the damage caused to Fertile Heart for any violation of these Terms of Service pertaining to a report or record will be difficult to accurately estimate.  Thus you shall be liable to pay us the following amounts as liquidated damages, and you agree that the liquidated damages are a reasonable estimate of Fertile Heart’s damages for the specified breaches of these Terms of Service:

1. a) If you post Content in violation of these Terms of Service, you agree to promptly pay Fertile Heart One Thousand Dollars ($1,000) for each item of Content posted in violation of these Terms of Service. We may (but shall not be required to) to issue you a warning before assessing damages.
2. b) If you display, copy, duplicate, reproduce, sell, re-sell or exploit for any purpose any Content in violation of these Terms of Service, you agree to pay One Hundred Dollars ($100) for each record or report that you displayed, copied, duplicated, reproduced, sold, re-sold or exploited for any purpose.
3. c) If you use computer programming routines that are intended to aggregate records or reports from the Sites and Services or otherwise damage, interfere with, disrupt, impair, disable or otherwise overburden the Sites and Services, you agree to pay One Hundred Dollars ($100) for each report or record that is aggregated, disrupted, damaged or otherwise affected by you.

Except as set forth in the foregoing subparagraphs a) through c), inclusive, you agree to pay the actual damages suffered by Fertile Heart, including, but not limited to attorneys’ fees and court costs, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of these Terms of Service, we reserve the right to seek the remedy of specific performance of any term contained herein, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in these Terms of Service, or any combination thereof.

NOTICE

By use of the Sites and Services, you consent to receive electronic communications from Fertile Heart (via email or via a posting on the Sites), and you agree that any such communications satisfy any legal requirement to make such communications in writing. You also agree that Fertile Heart may communicate any notices to you under these Terms of Service, through electronic mail, regular mail or posting the notices on the Sites and Services. All notices to Fertile Heart will be provided by either sending an email to help@fertileheart.com.

ENTIRE AGREEMENT

These Terms of Service and other agreements, rules, and policies incorporated by reference to these Terms including, without limitation, the Privacy Policy, constitutes the entire agreement between you and Fertile Heart. It supersedes any prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between you and Fertile Heart regarding the subject matter contained in these Terms of Service. Additional terms and conditions may exist between you and third parties, including but not limited to, Resources and others. You represent and warrant that those third party agreements do not interfere with your obligations and duties to Fertile Heart under these Terms of Service.

GOVERNING LAW

These Terms of Service and the relationship between you and Fertile Heart will be governed by the laws of the State of New York, notwithstanding the choice of law provisions of the venue where any action is brought, where the violation occurred, where you may be located or any other jurisdiction. You agree and consent to the exclusive jurisdiction of the state or federal courts located in Kingston, New York and waive any defense of lack of personal jurisdiction or improper venue or forum non conveniens to a claim brought in such court, except that Fertile Heart may elect, in its sole discretion, to litigate the action in the county or state where any breach by you occurred or where you can be found. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out or related to your use of the Sites and Services or these Terms of Service shall be filed within one (1) year after such claim or cause of action arose or will forever be barred.

MISCELLANEOUS

If you breach any term of this Terms of Service or other agreement with Fertile Heart, Fertile Heart may pursue any legal or equitable remedy available, including but not limited to, direct, consequential, and punitive damages and injunctive relief. Fertile Heart’s remedies are cumulative and not exclusive. Failure of Fertile Heart to exercise any remedy or enforce any portion of the Terms of Service at any time shall not operate as a waiver of any remedy or of the right to enforce any portion of the Agreement at any time thereafter. If any provision of the Terms of Service is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable. These Terms of Service are not assignable, transferable or sub-licensable by you except with Fertile Heart’s prior written consent. We may transfer, assign or delegate the Terms and its rights and obligations without consent. Users of this Sites and Services are responsible for compliance with all applicable regulations and laws. No joint venture, partnership, employment or agency relationship exists between you and Fertile Heart as a result of these Terms of Service or use of the Sites and Services. You acknowledge and agree that each of the Released Parties shall be an intended third party beneficiary of these Terms of Service.

CONTACTING US

If you have any comments or questions regarding these Terms, or wish to report any violation of these Terms of Service, please contact us at info@fertileheart.com. We will address any issue to the best of our abilities.