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 the Contract) below.
This document (or, if applicable, your written agreement with us), our Privacy policy, the Data Processing Addendum (where applicable), the Fibery AI Terms ("AI Terms") (where Customer uses AI Features, as defined in the AI Terms), and Order Document(s) govern your access, use and purchases of the Fibery Service hosted on Fibery.io domain as well as other related online services (collectively "Service") and together form a binding contract ("Contract") between you ("Customer") and us. These Terms include our Privacy Policy and any other referenced policies and attachments. If you create an account, upload your data, or use or allow the use of that account after being notified of a change to these Terms, you acknowledge your understanding of the then-current Contract and agree to the Contract on behalf of Customer. Please make sure you have the necessary authority to enter into a Contract on behalf of Customer before proceeding.
In the event of a conflict between the documents forming the Contract, the following order of precedence applies, unless a document expressly states otherwise for a specific matter:
(a) a mutually executed written agreement or Order Document, solely with respect to the commercial matters it addresses;
(b) the Data Processing Addendum, solely with respect to the Processing of Personal Data;
(c) the AI Terms, solely with respect to the use of AI Features, but excluding all commercial matters (including usage allowances, Extra Usage, spending limits, pricing, billing, payment, refunds and credits), which are governed by these Terms and the applicable Order Document;
(d) these Terms; and
(e) the Documentation and Pricing page.
Rates, allowances and spending limits displayed on the Pricing page or in the workspace billing settings form part of the Contract to the extent these Terms incorporate them, including under Section 5.1 (Usage Allowances and Extra Usage).
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.
For the purposes of these Terms, "Order" or "Order Document" means the Customer's subscription purchase completed through the Service's checkout or billing interface (including plan selection, number of Users, Subscription Term, and fees confirmed at checkout), or, where applicable, a separate ordering document mutually executed by the parties.
"Authorized Users" (each, a "User") means those uniquely identified individuals who have created an account for the Service. 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 Service 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.
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) provided that Service is 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.
The following service types are offered:
Certain features of the Service are measured by usage, including AI Features (measured in AI Credits, as defined in the AI Terms), automation runs and integrations ("Metered Features"). Each Plan may include a usage allowance for each Metered Feature, as described on the Pricing page or in the applicable Order Document ("Included Allowance").
Unless the applicable Order Document states otherwise:
(a) Included Allowances reset at the start of each calendar month, and unused amounts do not carry forward;
(b) Included Allowances form part of the subscription fee, have no separate cash value, and are not separately refundable or creditable (without affecting Section 16.3);
(c) an Included Allowance may change during a calendar month when the number of paid Users or the Plan changes; and
(d) once an Included Allowance is used up and Extra Usage is not enabled, the relevant Metered Feature may stop accepting requests until the next calendar month, until Customer upgrades its Plan, or until Customer enables Extra Usage.
"Extra Usage" means paid use of a Metered Feature beyond its Included Allowance. Extra Usage is optional, disabled by default, and available only on Plans that support it, as shown on the Pricing page.
Only Authorized Users with permission to manage workspace billing may enable Extra Usage or change its spending limits. To enable Extra Usage, such a user selects and confirms a monthly spending limit in the workspace billing settings. By confirming, Customer authorises Fibery to charge for Extra Usage at the rates displayed before confirmation, up to the confirmed limit in each calendar month.
Fibery applies the Included Allowance first. Extra Usage is charged only once the Included Allowance for the relevant Metered Feature is used up, and only while the applicable spending limit has not been reached. Fibery determines whether usage counts against the Included Allowance or Extra Usage at the time the usage occurs.
A spending limit applies to each Metered Feature for which Extra Usage is enabled. It is the maximum amount Customer authorises for Extra Usage of that Metered Feature in a calendar month and is not a prepayment. Spending limits reset at the start of each calendar month and remain in force until changed or disabled. Once a limit is reached, Extra Usage of that Metered Feature is suspended until the next calendar month or until Customer raises the limit.
Customer may raise, lower or disable a spending limit at any time in the workspace billing settings. Raising a limit requires explicit confirmation of the new amount, which authorises charges up to that amount. Changes take effect on confirmation and apply to the current and later calendar months. A limit cannot be lowered below the Extra Usage already consumed in the current calendar month. Disabling Extra Usage stops further Extra Usage but does not cancel charges already incurred.
Extra Usage is charged on actual consumption, as measured by Fibery's usage records, which are conclusive unless there is a manifest error. Fibery will charge Extra Usage monthly, after it is consumed. Extra Usage is billed and charged in accordance with Section 16.1 (Payment) and Customer's applicable billing arrangements, unless otherwise agreed in writing. Unused spending limits do not carry forward and have no cash or refund value.
If Customer moves to a Plan that does not support Extra Usage, or Customer's subscription is cancelled, expires or is terminated, Extra Usage is disabled from that date. Charges incurred before that date remain payable.
Nothing in this Section 5.1 limits any mandatory consumer rights under applicable law.
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.
"Your Data" (also referred to in the Contract as "Customer Data") means any data, content, code, or other materials of any type that you upload, submit or otherwise transmit to or through the Service. For clarity, Your Data includes AI Inputs and AI Outputs (each as defined in the AI Terms) stored in your Service Instance. You will retain all rights, title and interest in and for Your Data in the form provided to Fibery. Subject to the terms of these Terms, you hereby grant to Fibery a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the Service to you. Fibery may also access your account or Instance in order to respond to your support requests. Fibery might use aggregated statistics obtained from your data in each case strictly for internal service improvements purposes and with all Customer Data removed from aggregation results. Additional information is available in Privacy Policy.
You will not submit to the Service, and will ensure that Authorized Users do not submit to the Service:
(A) any special categories of personal data within the meaning of Article 9 GDPR (including data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation) or personal data relating to criminal convictions and offences within the meaning of Article 10 GDPR;
(B) any patient, medical or other protected health information regulated by HIPAA or any similar federal, state, or national laws, rules or regulations;
(C) any consumer financial account credentials (such as online banking usernames or passwords), full payment card numbers or card security codes regulated by PCI DSS, consumer credit reports or scores, or non-public personal information regulated by the Gramm-Leach-Bliley Act where Customer is acting as a financial institution subject to that Act; for clarity, ordinary commercial and accounting documents — such as invoices, receipts, purchase orders, and bank account details used for business payment routing — do not constitute Sensitive Data; or
(D) any government-issued identification numbers, including social security numbers, passport numbers, or national identification numbers ((A) through (D), collectively, "Sensitive Data").
For clarity, Personal Data that does not fall within categories (A) through (D) - such as names, business contact details, and employment information of Customer's personnel, customers, suppliers, and other business contacts - may be submitted to the Service and will be processed in accordance with Section 15 (Personal Data Processing), the Privacy Policy, and the Data Processing Addendum. Customer remains the Controller of, and solely responsible for, all Personal Data it submits.
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 is 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 submitted in breach of this Section 8.1.
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.
"Personal Data" 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".
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.
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.
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.
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.
Fibery provides various levels of Technical Support depending on your service type:
The comparison with general details about Technical Support levels:
Basic support
Standard support
Service users shall submit any issues or questions via Feedback form available in the Service UI. Other Technical Support contacts are:
Email: support@fibery.io
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.
Where Fibery processes Customer Personal Data on behalf of Customer, Fibery acts as Customer’s Processor, and such processing is governed by the Data Processing Addendum available at Data Processing Addendum (the “DPA”), which forms part of the Contract and takes precedence over these Terms in matters relating to the Processing of Personal Data.
Fibery’s processing of Personal Data for its own purposes, including account administration, billing, security, and compliance, is described in the Privacy Policy.
Each party shall comply with the data protection laws applicable to its respective processing activities.
Capitalised data protection terms used in these Terms, including Controller, Processor, Processing, Sub-Processor and Customer Personal Data, have the meanings given in the DPA.
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. If your Order specifies different payment terms, payment shall be made according to the terms stated therein, and Fibery reserves the right to suspend Service for non-payment. Except as expressly set forth in Section 16.2 (Refunds), Section 16.3 (Subscription Adjustments and Account Credits), or as required by applicable law, all amounts are non-refundable and non-creditable. Subscription cancellations will not result in refunds unless required by law or explicitly agreed upon in writing by Fibery. 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 exceed the number of Authorized Users allowed under your Subscription Term, the Service will switch to read-only mode until you either remove or deactivate the excess users or purchase additional user licenses. Additional user licenses must be paid for at the time of purchase unless otherwise agreed with Fibery. Upon request via the Sales department, additional user licenses may be applied to your Instance before cleared payment is received.
You authorise Fibery to charge your payment method on file for renewals, additional Users, Extra Usage authorised under Section 5.1 (Usage Allowances and Extra Usage), and unpaid fees, unless other payment terms are agreed in writing.
Prorated Charges: Fibery applies prorated charges on a daily basis in the following circumstances:
Prorated charges are calculated by dividing the applicable subscription fee by the total number of days in the Subscription Term and multiplying by the number of days remaining in the term (for additions/upgrades) or used (for downgrades).
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. The 30-day refund applies to subscription fees only and does not cover Extra Usage already consumed. You understand that Fibery may change this practice in the future in accordance with Section 28 (Changes to the Contract). After the initial 30-day refund period, prepaid subscription fees for any unused portion of a 6- or 12-month Subscription Term are non-refundable, except as expressly provided in these Terms or required by applicable law. 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 Policy.
Fibery applies a fair usage billing approach.
Prorated Credits for Subscription Reductions. If the Customer reduces the number of Users or otherwise reduces the scope of its paid subscription during a prepaid subscription term, Fibery will calculate a prorated credit corresponding to the unused portion of the affected Services, in accordance with the proration rules in Section 16.1 (Payment).
Form of Credit. Unless otherwise expressly agreed by Fibery or required by applicable law, such credit will be provided as an Account Credit and may be applied against future amounts payable for Fibery Services, including subscription fees and other eligible charges described in the applicable Order Document or on the Pricing page.
Account Credits are not redeemable for cash and do not constitute a right to a cash refund, except where a cash refund is expressly provided for under these Terms or required by applicable law.
Account Credits are separate from AI Credits and credits granted under any promotional program and may not be exchanged for or converted into such credits.
Validity and Expiry. Account Credits remain available while the Customer maintains an active Fibery account and may be applied against eligible charges for twelve (12) months from the date on which the Account Credit is issued, or such longer period as may be required by applicable law.
If the Customer's paid subscription is cancelled, expires or is not renewed, any unused Account Credit will remain available for twelve (12) months from the date on which it was issued, or such longer period as may be required by applicable law.
If the Customer's Fibery account is deleted before the applicable validity period expires, any unused Account Credit will expire upon deletion and will cease to be available for use, except where applicable law requires Fibery to preserve, reimburse or otherwise account for such amount.
After the applicable validity period expires, the Account Credit will cease to be available for use and will not be redeemable or payable in cash, unless otherwise expressly agreed in writing between Fibery and the Customer or required by applicable law.
Prorated Charges for Subscription Increases. If the Customer increases the number of Users, upgrades its Plan or purchases additional Services during a subscription term, Fibery may charge the corresponding additional fees on a prorated basis, calculated in accordance with Section 16.1 (Payment).
Relationship to Refund Policy. This Section does not limit or replace the 30-day refund policy in Section 16.2 (Refunds). Where a Customer is entitled to a refund under Section 16.2, that refund will be provided in accordance with Section 16.2 and will not be converted into an Account Credit without the Customer's express consent.
Mandatory Law. Nothing in these Terms limits any refund, withdrawal, price reduction or other remedy to which the Customer is entitled under applicable mandatory law, including applicable consumer protection law. Where applicable law requires reimbursement in monetary form or by the same means of payment used by the Customer, Fibery will provide reimbursement accordingly. Fibery will not substitute an Account Credit for such reimbursement without the Customer's express consent.
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.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means ownership or control of more than 50% of the voting interests of that entity. 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.
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.
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 the external service. We will not be responsible for any use, disclosure, modification or deletion of Your Data that is transmitted to, or accessed by, a Non-Fibery Product.
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, descriptions of processes, suggested modifications, or other information to Fibery (collectively, "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. The Service and any related or underlying Fibery technology, including source code, algorithms, non-public APIs and Documentation, 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.
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 these Terms 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 cancel the automatic renewal of your subscription through your Fibery account or by contacting Fibery Sales. Unless otherwise agreed or required by applicable law, cancellation takes effect at the end of the then-current Subscription Term. Once these Terms terminate or expire, 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 5.1 (Usage Allowances and Extra Usage, as to charges incurred before termination), 8.2 (Indemnity for Your Data), 15 (Personal Data Processing), 16.1 (Payment, as to amounts owed), 16.2 (Refunds), 16.3 (Subscription Adjustments and Account Credits), 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), and the provisions of the AI Terms stated in the AI Terms to survive.
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.
ALL SERVICES ARE PROVIDED "AS IS," AND FIBERY AND 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 WILL 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.
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 23 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS OR SECTION 5.1 (USAGE ALLOWANCES AND EXTRA USAGE), (2) EITHER PARTY'S EXPRESS INDEMNIFICATION OBLIGATIONS UNDER THE CONTRACT, INCLUDING THE AI TERMS, OR (3) YOUR BREACH OF SECTION 17 (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 23 (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.
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's indemnification obligations above do not apply: (1) if the total aggregate fees received by Fibery with respect to your subscription to the Service in the 12-month period immediately preceding the claim are 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, software or equipment not provided for in the Documentation, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorised use of the Service; (5) to any Claim arising as a result of (A) Your Data (or circumstances covered by your indemnification obligations in Section 8.2 (Indemnity for Your Data)) or (B) any third-party deliverables or components contained in the Service; (6) to any version of a Fibery API, SDK or other component that Fibery has notified as deprecated or no longer supported; or (7) if you settle or make any admissions with respect to a claim without Fibery's prior written consent. THIS SECTION 24 (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.
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.
We may identify you as a Fibery customer in our promotional materials only after receiving prior written 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.
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.
These Terms will be governed by and construed in accordance with the applicable laws of the Republic of Cyprus, without giving effect to the principles of that jurisdiction 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.
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.
We may update or modify these Terms and the other documents forming the Contract, other than Order Documents and mutually executed written agreements, which may be changed only by agreement of the parties. If a revision materially reduces your rights or increases your obligations, we will use reasonable efforts to notify you at least thirty (30) days before it takes effect (for example, by email to the address associated with your account, through your Service Instance, or by posting on our website).
For paid subscriptions: modified terms take effect upon the start of your next Subscription Term (including any renewal). If you object to the modified terms, your exclusive remedy is to not renew, including cancelling any auto-renewal, before the modified terms take effect. Any Order is governed by the version of the Terms in effect at the time of the Order.
For Free service: modified terms take effect on the date stated in the notice, and continued use of the Free service after that date constitutes acceptance. If you do not agree, you must stop using the Free service.
Exceptions. Notwithstanding the foregoing, changes may take effect during a current Subscription Term where:
(a) required to comply with applicable law, a court or regulatory order, or the requirements of a third-party provider;
(b) necessary to address security, fraud, or abuse;
(c) the change applies to Metered Features or Extra Usage, as described in Section 28.1; or
(d) Customer enables Extra Usage under Section 5.1, in which case the then-current Section 5.1 and the rates confirmed by Customer apply to that Extra Usage from the moment of confirmation, regardless of Customer's existing Subscription Term.
Where a change under (a) or (b) materially reduces your rights, we will notify you as soon as reasonably practicable and, if the change materially degrades the core functionality you have paid for, you may terminate the affected subscription and receive a prorated refund of prepaid, unused fees. Changes to AI Features, models and AI Providers are also subject to the AI Terms.
Pricing, Included Allowances, AI Credit conversion rates and usage rules for Metered Features and Extra Usage may change on at least thirty (30) days' prior notice. Such changes apply prospectively only, will never affect usage already consumed, and will not increase your fixed subscription fees during the then-current Subscription Term. If you do not accept a change to Extra Usage, you may disable Extra Usage before the change takes effect, without affecting your existing subscription or any mandatory rights under applicable law.
This Schedule applies exclusively to Users who are individual consumers residing in the European Union (EU), European Economic Area (EEA), or the United Kingdom (UK) and using the Service for personal, non-commercial purposes ("Consumers"). In the event of any conflict between this Schedule A and the main body of the Terms of Service, this Schedule shall take precedence solely with respect to Consumers.
If you are a Consumer, you have the right to withdraw from this Contract within fourteen (14) days from the day on which the Contract is concluded, without giving any reason, unless an applicable statutory exception applies.
To exercise this right, you must inform Fibery of your decision to withdraw by an unequivocal statement sent to support@fibery.io before the withdrawal period expires. You may use any applicable statutory model withdrawal form, but you are not required to do so.
Upon valid withdrawal, Fibery will reimburse the subscription payments received from you that are subject to reimbursement under applicable law, using the same means of payment used for the original transaction unless you expressly agree otherwise, and within fourteen (14) days of receiving your notice of withdrawal.
If you expressly requested that performance of the Service begin during the withdrawal period, you shall pay Fibery an amount proportionate to the Service provided up to the time you informed Fibery of your decision to withdraw, compared with the full coverage of the Contract, to the extent permitted by applicable law.
Notwithstanding Section 16.5, all prices displayed to Consumers at the point of checkout shall be inclusive of applicable Value Added Tax (VAT) and any other taxes required to be included under applicable law.
Section 22.2 (Warranty Disclaimer) does not affect any statutory conformity rights available to Consumers under applicable consumer law, including Directive (EU) 2019/770 where applicable.
Fibery will provide the Service in accordance with the applicable contractual and objective requirements for conformity, including, where applicable, requirements relating to functionality, compatibility, accessibility, continuity, security, and interoperability.
Fibery will also provide updates, including security updates, that are necessary to keep the Service in conformity for the period required by applicable law.
Nothing in Section 23 (Limitation of Liability) shall exclude or limit Fibery's liability to the extent that such liability cannot lawfully be excluded or limited under applicable law.
Without limitation, nothing in Section 23 shall exclude or limit Fibery's liability for:
(a) death or personal injury resulting from negligence, where such liability cannot lawfully be excluded;
(b) fraud or fraudulent misrepresentation;
(c) wilful misconduct or gross negligence, to the extent applicable under governing law; or
(d) any liability or remedy that cannot lawfully be excluded or limited under applicable data protection or consumer protection law.
If you are a Consumer, you may cancel the automatic renewal of your subscription at any time directly through the self-service billing dashboard of your Service Instance. You are not required to contact the Sales Department to stop an automatic renewal.
Unless you have a statutory or contractual right to terminate earlier, cancellation will take effect at the end of the then-current subscription period and will prevent the subscription from renewing.
Nothing in this Section affects any statutory right of withdrawal, termination, reimbursement, price reduction, or other remedy available under applicable law.
The mandatory arbitration provisions of Section 27.1 do not apply to Consumers to the extent that their application would restrict any mandatory right of a Consumer to bring proceedings before a competent court.
Nothing in these Terms deprives a Consumer of the protection of mandatory provisions of the law or jurisdiction rules applicable to that Consumer.
Where applicable EU consumer jurisdiction rules apply, a Consumer may bring proceedings against Fibery either before the competent courts where Fibery is domiciled or before the competent courts of the Consumer's place of domicile. Fibery may bring proceedings against a Consumer only before the courts permitted under applicable mandatory consumer jurisdiction rules.
For Consumers outside the scope of those EU rules, including Consumers in the United Kingdom or other EEA jurisdictions where different jurisdiction rules apply, the competent courts shall be determined in accordance with applicable mandatory consumer law.
Consumers may also use any competent out-of-court Alternative Dispute Resolution (ADR) entity or consumer dispute resolution mechanism available to them under applicable national law.