These Fibery Terms of Service ("Terms") describe your rights and responsibilities when using our Services and are between you and Fibery, provider of the Fibery Service ("Fibery" or "Service(s)"). If you are agreeing to Terms not as an individual but on behalf of your company, then " Customer" or "you" means your company, and you are binding your company to these Terms. Fibery may modify Terms from time to time, subject to the Terms in Section 28 (Changes to Terms) below..
1. Scope of the document. Applicability.
2. Service Instance Registration.
You may need to register for a Fibery Service Instance in order to place orders, or to access/receive Service using invite form or self-service form if available. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your Service Instance. You are solely responsible for all actions taken through your Service Instance. If your Instance is being set up by someone who is not formally affiliated with an organization, the Customer is the individual creating the Instance. For example, if you signed up using a personal email address and invited a couple of friends to work on some Project, but haven't formed a company yet, then you are the Customer.
If you signed up for Service using your corporate email domain, your organization is the Customer, and the Customer can modify and re-assign roles on your Instance (including your role), and otherwise exercise its rights under the Contract.
3. Authorized Users.
"Authorized users" means those uniquely identified individuals who created Service account. You are responsible for compliance with these Terms by all Authorized Users. All use of Service by you and your Authorized Users must comply with these Terms and must be solely for your benefit.
Customer will (a) inform Authorized Users of all Policies and Practices that are relevant to their use of the and of any terms and settings that may impact the processing of Customer Data; and (b) ensure the transfer and processing of Customer Data (including Personal) under the Contract is lawful.
4. Access to Service.
Subject to the terms and conditions of these Terms, Fibery grants you a non-exclusive right to access and use the Service during the applicable Subscription Term (defined below) mas soon as service used in accordance with these Terms and the Documentation. You acknowledge that our Service is an online, subscription-based product and that we may make changes to the Service from time to time as we roll out new version or bug fixes.
5. Types of Fibery Service.
The following service types are offered:
- Free/trial Fibery Service with limitations. Information about limitations available on the Pricing page. "Free" means that Customer may use Service in accordance with these Terms free of charge for any period of time. Fibery reserves the right to change "free" service limitations, introduce payments, or terminate free service at any time and for any reason in our sole discretion, without liability to you with prior notification sent(additional details under 28. Changes to these Terms)
- Team Plan. Service is provided for the term specified in your Order ("Subscription Term"). Additional information about Plan features is available on the Pricing page. Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription via contacting Fibery Sales department. If you cancel, your subscription will terminate at the end of the then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination (additional details under 15.1 Refunds).
- Company Plan. Service is provided for the term specified in your Order ("Subscription Term"). Additional information about Plan features is available on the Pricing page. Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription via contacting Fibery Sales department. If you cancel, your subscription will terminate at the end of the then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination (additional details under 15.1 Refunds).
You must ensure that all Authorized Users keep their user IDs and passwords for the Service strictly confidential and not share such information with any unauthorized person. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Fibery of any unauthorized use of which you become aware.
Fibery will maintain the security of Services using industry best practices and implements security procedures to help protect Your Data from security attacks. Additional information is available in the Cloud Security Statement document. However, you understand that use of the Service necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure, or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers. If a Non-Fibery Product is enabled for Customer Service Instance, please be mindful of any Customer Data that will be shared with the third party provider and the purposes for which the provider requires access. We will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Non-Fibery Product.
8. Your Data.
8.1 Sensitive Data.
You will not submit to the Service: (A) any Personal Data, except as necessary for the establishment of your Fibery Service Instance and Authorized Users identification; (B) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; or (C) any other information subject to regulation or protection under specific laws such as the General Data Protection Directive, Gramm-Leach-Bliley Act (or related rules or regulations) ((A) to (C), collectively, "Sensitive Data"). You also acknowledge that Fibery is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Service are not HIPAA compliant. "HIPAA" means the Health Insurance Portability and Accountability Act, as amended. Notwithstanding any other provision to the contrary, Fibery has no liability under these Terms for Sensitive Data.
8.2 Indemnity for Your Data.
You will defend, indemnify and hold harmless Fibery from and against any loss, cost, liability or damage, including attorneys' fees, for which Fibery becomes liable arising from or relating to any claim brought by a third party alleging that Your Data, or your use of the Service in breach of these Terms, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (A) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (B) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (C) all reasonable necessary cooperation of Fibery at your expense.
8.3 Personal Data.
"Personal Data" means means any information relating to an identified or identifiable natural person (‘data subject’) as defined in the GDPR (the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data). Personal Data associated with or obtained via your Service will be handled in accordance with the GDPR provisions, additional details provided in section 15 "Personal Data Processing".
9. Storage Limits.
There are attachments storage set in accordance with your Service Plan, please check Pricing page for additional details.We may change storage limits for the Service at any time, with corresponding notification sent to Customers in advance.
10. Responsibility for your Service Instance use.
You must ensure that your use of the Service and all Your Data is at all times compliant with all applicable local, state, federal and international laws and regulations ("Laws"). You represent and warrant that: (A) you have obtained all necessary rights, releases and permissions to provide all Your Data to Fibery and to grant the rights granted to Fibery in these Terms and (B) Your Data and its transfer to and use by Fibery as authorized by you under these Terms do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 7 (Security), Fibery assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing and transmitting it.
11. Removals and Suspension.
Fibery has no obligation to monitor any content uploaded to the Service. Nonetheless, if we deem such action necessary based on your violation of these Terms or in response to takedown requests that we receive from law enforcement agencies, we may (A) remove Your Data from the Service or (B) suspend your access to the Service. We will generally alert you in advance when we take such action and give you a reasonable opportunity and time to cure your breach, but if we determine that your actions negatively affect the operation of the Service or other Service Instances, we may suspend your access immediately without notice. You will continue to be charged for the Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Service as described in this section.
12. Data Portability and Removal at End of Subscription Term.
Your data can be exported using Fibery API features in one of the standard import-friendly formats.
We will remove or delete Your Data within a reasonable period of time after the termination of your Paid Service. Most of the data is removed in 6 months after your Instance suspension or subscription Term termination. Limited amount of Personal Data (such as Instance Owner Personal Data) will be kept for compliance and accounting reasons for a longer period of time — typically up to 6 years.
13. Support and Maintenance.
13.1 Technical Support.
Fibery provides various levels of Technical Support depending on your service type:
- Basic Support — Free Service accounts.
- Standard Support — Paid Service
The comparison with general details about Technical Support levels:
- Reply SLA for general requests - no SLA
- Requests priority - Low
- Reply SLA for general requests - 24 hours, Monday to Friday
- Requests priority - High
Service users shall submit any issues or questions via Feedback form available in the Service UI. Other Technical Support contacts are:
Help Desk: https://community.fibery.io/
Planned maintenance — we perform planned maintenance reboots of our servers on a bi-weekly or less often depending on the patches and fixes release schedules from OS and hardware vendors. Planned maintenance is performed on weekends. Typical downtime associated with planned maintenance is 10-20 minutes.
Training service is paid and available upon request. Fibery shall retain all rights, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide ("Materials"). Any Materials provided to you may be used only in connection with the Service subject to the same use restrictions for the Service. If applicable, you will reimburse Fibery for reasonable travel and lodging expenses as incurred.
15. Personal Data Processing
“Controller” means the entity which determines the purposes and means of the Processing of Personal Data, for the scope of this document is a Customer
“Controller Affiliate” means any of Customer's Affiliate(s) (a) (i) that are subject to applicable Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (ii) permitted to use the Service pursuant to the Agreement between Customer and Fibery, but have not signed their own Order Form and are not a “Customer” as defined under the Agreement, (b) if and to the extent Fibery processes Personal Data for which such Affiliate(s) qualify as the Controller.
“Customer Personal Data” means personal data contained within the Customer Data.
“Data Protection Laws” means all laws and regulations, including laws and binding regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“EU Data Protection Laws” means all laws and regulations of the European Union, the European Economic Area, their member states, and the United Kingdom, applicable to the processing of Personal Data,including (where applicable) the GDPR;
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Personal Data” means any Customer Data that relates to an identified or identifiable natural person, to the extent that such information is protected as personal data under applicable Data Protection Laws.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
The terms “Personal Data”, “Data Subject”, “Processing”, “Controller”and “Processor” as used in these Terms have the meanings given in the GDPR, and the terms "Data importer” and “Data exporter” have the meanings given in the Model Contract Clauses, in each case irrespective of whether the European Data Protection Legislation or Non-European Data Protection Legislation applies.
15.2 Processing of Personal Data
15.2.1 Roles of the Parties.
The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Fibery is the Processor and that Fibery or its Affiliates will engage Sub-Processors pursuant to the requirements set forth in Section 15.4 below.
15.2.2 Authorization by Third Party Controller.
If the European Data Protection Legislation applies to the processing of Customer Personal Data and Customer is a processor, Customer warrants to Fibery that Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of Fibery as another processor, have been authorized by the relevant Controller.
15.2.3 Customer’s Processing of Personal Data.
Customer shall, in its use of the Service and provision of instructions, Process Personal Data in accordance with the requirements of applicable Data Protection Law. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data, and the means by which Customer acquired Personal Data.
15.2.4 Fibery Processing of Personal Data.
As the Customer’s Processor, Fibery shall only Process Personal Data for the following purposes:
- Processing in accordance with the Agreement;
- Processing initiated by Authorized Users in their use of the Service; and
- Processing to comply with other reasonable instructions provided by Customer (e.g., via email or support tickets) that are consistent with the terms of the Agreement (individually and collectively, the “Purpose”). Fibery acts on behalf of and on the instructions of the Customer in carrying out the Purpose.
15.2.5 Duration of Data Processing
15.2.6 Data Subject Requests and Rights.
Fibery shall, to the extent legally permitted, promptly notify Customer if Fibery receives any requests from a Data Subject to exercise the following Data Subject rights in relation to Personal Data: access, rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, objection to the Processing. Taking into account the nature of the Processing, Fibery shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under applicable Data Protection Laws. In addition, to the extent the Customer, in its use of the Service, does not have the ability to address a Data Subject Request, Fibery shall, upon Customer’s request, provide commercially reasonable efforts to assist Customer in responding to such a Data Subject Request, to the extent Fibery is legally permitted to do so and the response to such Data Subject Request is required under applicable Data Protection Laws. To the extent legally permitted, Customer shall be responsible for any costs arising from Fibery provision of such assistance, including any fees associated with the provision of additional functionality.
Fibery will, in a manner consistent with the functionality of the Service or per request, enable Customer to access, rectify, and restrict processing of Customer Personal Data.
With respect to the Personal Data under this DPA, Fibery warrants that it will:
- only process Personal Data in order to provide the Service, and shall only act in accordance with: (i) this DPA, (ii) the Customer's written instructions as represented by the Main Agreement and this DPA, and (iii) as required by applicable laws;
- upon becoming aware, inform the Customer if, in Fibery’ opinion, any instructions provided by the Customer infringe Data Protection Laws or GDPR. In this case, Fibery shall have the right to refuse to execute the infringing instruction.
15.2.7 Description of Processing Activities
188.8.131.52 Data Subjects
The transferred personal data concerns the following categories of data subjects: the Data Exporter’s end users including employees and contractors; the personnel of the Data Exporter’s customers, suppliers and subcontractors.
184.108.40.206 Categories of data
The transferred personal data concerns the following categories of data: personal data submitted, stored or sent by the Data Exporter or its end users via the Service including identification and contact data (name, address, title, email, userID); employment details where provided (employer, job title); IT information (IP addresses, usage data, cookies data).
220.127.116.11 Special categories of data (if appropriate)
18.104.22.168 Processing operations
The transferred personal data transferred will be processed in accordance with the Agreement and may be subject to the following processing activities:
- to identify users when authenticating
- provide the Service and related technical support services
- to improve Services.
15.3 Personal Data Breach
Fibery shall, to the extent permitted by law, notify Customer without undue delay upon Fibery or any Sub-Processor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information, to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
Assistance to Customer.
Fibery shall cooperate with the Customer and take reasonable commercial steps to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
15.4.1 Customer acknowledges and agrees that:
- Fibery Affiliates may be retained as Subprocessors through written agreement with Fibery.
- Fibery and Fibery Affiliates respectively may engage third-party Subprocessors in connection with the provision of the Service. As a condition to permitting a third-party Subprocessor to Process Personal Data, Fibery or a Fibery Affiliate will enter into a written agreement with each Sub-processor containing data protection obligations that provide at least the same level of protection for Personal Data as those in these Terms and Fibery Cloud Security Notes, to the extent applicable to the nature of the Service provided by such Subprocessor.
15.4.2 Current Core Services Sub-Processors
"Core" means providing infrastructure hosting or processing significant amount of Customer Personal Data.
- "IBM East Europe / Asia" ("IBM Cloud")
- Amazon Web Services, Inc
- Twilio, Inc ("SendGrid")
16. Payments and delivery.
You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars at the time you place your Order. Other than as expressly set forth in Section 16.2 (Refunds) all amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Service beyond the current Subscription Term or any Service updates or enhancements. If you add more Authorized Users than there are paid in your Subscription Term — Service will switch to read-only mode until you remove or deactivate redundant Authorized Users or order additional users licenses. Additional users licenses may be applied to your Instance before receiving cleared payment upon request via the Sales department You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable.
As part of our commitment to customer satisfaction we allow new customers to receive a refund of initial payment for Service within 30 days of payment for any reason or no reason. In the context of Service, a return means that we will disable access to the Service. We will not accept returns after the 30-day return period. You understand that Fibery may change this practice in the future in accordance with Section 28 (Changes to these Terms). You will not be entitled to any refunds for prepaid but unused long-term ( 6 or 12 months) Service subscriptions. Fibery understands the importance of ensuring the privacy of your personally identifiable information and being legally compliant to privacy laws and regulations. For more information, please see our Privacy Notice.
We will deliver the applicable login instructions to the email addresses specified in your Order when we have received payment of the applicable fees and apply license keys to the corresponding Instance. All deliveries under these Terms will be electronic.
Your payments under these Terms exclude any taxes or duties payable in respect of the Service in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Fibery, you must pay to Fibery the amount of such taxes or duties in addition to any fees owed under these Terms. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Fibery any such exemption information, and Fibery will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
Except as otherwise expressly permitted in these Terms, you will not: (A) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, or transfer Service to a third party that is not your affiliate, (B)circumvent mechanisms in the Service intended to limit your use, (C) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Services, except as permitted by law.
18. Your Development of Add-Ons.
Fibery may periodically publish SDKs or APIs and associated guidelines ("Developer Guides") to allow you to develop add-ons or other software products or services that interoperate or are integrated with the Service ("Add-Ons"). Most recent version can be found at https://api.fibery.io/#introduction
You may distribute your Add-Ons to third parties but only in accordance with these Terms.
18.1 Conditions to Development of Add-Ons.
Notwithstanding anything in these Terms to the contrary, Fibery has no support, warranty, indemnification or other obligation or liability with respect to your Add-Ons or their combination, interaction or use with the Service. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Add-Ons (including but not limited to any representations or warranties you make about your Add-Ons) or your breach of this Section. If a non-Fibery Service is connected to Customer’s Instance, please be mindful of any Customer Data that will be shared with external service We will not be responsible for any use, disclosure, modification or deletion of Data that is transmitted to, or accessed by, a non-Fibery Service.
19. Ownership and Feedback.
Service is available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as "purchase". Fibery and its licensors have and retain all rights, title and interest, including all intellectual property rights, in and to the Service, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Fibery. You're welcome to submit comments, information, questions, ideas, description of processes, or other information to Fibery, including sharing Your Modifications via "Feedback". Fibery will implement suggested features as appropriate and answer the questions without SLA commitments. Fibery may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. Except as otherwise set forth in other Agreements, no Feedback will be considered your Confidential Information, and nothing in these Terms limits Fibery's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party ("Receiving Party") by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or would be understood to be confidential by a reasonable person under the circumstances. Any Fibery Technology relating to the Service shall be deemed Confidential Information of Fibery without any marking or further designation. Your Data will be deemed Your Confidential Information. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's non-disclosure obligation shall not apply to information which the Receiving Party can document: (A) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (B) is or has become public knowledge through no fault of the Receiving Party; (C) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (D) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have by law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of the Service.
21. Term and Termination.
These Terms are in effect for as long as you have a valid Subscription Term (the "Term"), unless sooner terminated as permitted in these Terms. Either party may terminate these Terms before the expiration of the Term if the other party materially breaches any of the terms of these Terms and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate these Terms at any time using corresponding page of your Fibery account. Once the Agreement terminates, you will no longer have any right to use or access the Service, or any information or materials that we make available to you under these Terms, including Fibery Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third-party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of these Terms: Sections 8.2(Indemnity for Your Data), 15 (Personal Data Processing), 16(Payment, Refunds only), 17(Restrictions), 18(Your Development of Add-Ons), 19(Ownership and Feedback), 20(Confidentiality), 21(Term and Termination), 22.2(Warranty Disclaimer), 23(Limitation of Liability), 27(Dispute Resolution).
22. Warranty and Disclaimer.
22.1 Due Authority.
Each party represents and warrants that it has the legal power and authority to enter into these Terms, and that, if you are an entity, these Terms and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Document.
22.2 WARRANTY DISCLAIMER.
ALL SERVICES ARE PROVIDED "AS IS," AND FIBERYAND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. FIBERY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF Fibery. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER FIBERY NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) the Service OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) the Service(OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH the Service) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) the Service (OR ANY SERVER(S) THAT MAKE A SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
23. Limitation of Liability.
NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR SERVICE AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF FREE SERVICE SHALL BE US $20. THIS SECTION 22 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY'S EXPRESS INDEMNIFICATION OBLIGATIONS IN THESE TERMS, OR (3) YOUR BREACH OF SECTION 16 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD- PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section 22 (Limitation of Liability) will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
The limitations under this "Limitation of Liability" section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by applicable laws. The provisions of this "Limitation of Liability" section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Service.
24. IP Indemnification by Fibery.
We will defend you against any claim brought against you by a third party alleging that a Service, when used as authorized under these Terms, infringes a third party intellectual property (a "Claim"), and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Fibery (including reasonable attorneys' fees) arising out of a Claim, provided that we have received from you: (A) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (B) reasonable assistance in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in your possession, custody or control; and (C) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If your use of a Service is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (I) procure a license for your continued use of the Service in accordance with these Terms; (II) substitute a substantially functionally similar Service; or (III) terminate your right to continue using the Service and refund any prepaid amounts for the terminated portion of the Subscription Term. Fibery indemnification obligations above do not apply: (1) if the total aggregate fees received by Fibery with respect to your subscription to Service in the 12 month period immediately preceding the claim is less than US $50,000; (2) if the Service is modified by any party other than Fibery without Fibery's permission, but solely to the extent the alleged infringement is caused by such modification; (3) if the Service is used in combination with any non-Fibery product not provided for in the Documentation, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Service; (5) to any Claim arising as a result of (M) Your Data (or circumstances covered by your indemnification obligations in Section 8.2 (Indemnity for Your Data)) or (N) any third-party deliverables or components contained with the Service; (5) to any unsupported release of the Software; or (6) if you settle or make any admissions with respect to a claim without Fibery's prior written consent. THIS SECTION 23 (IP INDEMNIFICATION BY Fibery) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SERVICE OR OTHER ITEMS PROVIDED BY Fibery UNDER THESE TERMS.
25. Third Party Products and Services.
Fibery or third parties may from time to time make available to you third-party products or services, including but not limited to Connectors and Add-ons as well as implementation, customization, training, and other consulting services. If you procure any of these third-party products or services, you do so under a separate agreement (and exchange of data) solely between you and the third party vendor. Fibery does not warrant or support non-Fibery products or services, whether or not they are designated by Fibery as "verified" or otherwise and disclaims all liability for such products or services. If you install or enable any third-party products or services for use with Fibery products, you acknowledge that the vendors of those products and services may access Your Data as required for the interoperation and support of such Add-ons with the Fibery Service. Fibery shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party add-on vendors.
26. Publicity Rights.
We may identify you as an Fibery customer in our promotional materials only after receiving immediate approval from an authorized representative. You may request that we stop identifying you by contacting the Support or Sales departments at any time. Please note that it may take us up to 5 days to process your request.
27. Dispute Resolution.
In the event of any controversy or claim arising out of or relating to these Terms, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to these Terms shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in one of the following cities as mutually agreed upon between the parties: Nicosia (Cyprus) or Buffalo, NY (USA). If the parties are unable to agree to one of these cities, then the arbitration shall proceed in Nicosia, Cyprus. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
27.2 Governing Law; Jurisdiction.
These Terms will be governed by and construed in accordance with the applicable laws of the Cyprus, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 27.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of the courts of Cyprus, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts of Cyprus, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Fibery may bring a claim for equitable relief in any court with proper jurisdiction.
27.3 Injunctive Relief; Enforcement.
Notwithstanding the provisions of Section 27.1 (Dispute Resolution; Arbitration), nothing in these Terms shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
28. Changes to these Terms.
We may update or modify these Terms from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (for example, by sending an email to email address you've specified when registering account, posting on our blog or through your Fibery Service Instance). If we modify the Terms during your Subscription Term, the modified version will be effective upon your next renewal of Subscription Term, as applicable. In this case, if you object to the updated Terms, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to Free service, accepting the updated Terms is mandatory for you to continue using the Service. You may be required to click through the updated Terms to show your acceptance. If you do not agree to the updated Terms after it becomes effective, you will no longer have a right to use Free service. For the avoidance of doubt, any Order is subject to the version of the Terms Agreement in effect at the time of the Order.