FYBE USER AGREEMENT
This User Agreement (this “Agreement”) sets forth the conditions that govern your access to and use of the Services (as defined below) made available through our website (fybe.com) and any successor or related locations designated by us (our “Site”). This Agreement constitutes a legal agreement between Cloud Solutions International, LLC (“Fybe,” “we,” “us,” and “our”) and you or the entity you represent (“you” or “your”). This Agreement takes effect when you click an “Order and Pay” button or, if earlier, when you use any of the Services (the “Effective Date”).
You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.
THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE REQUIRING YOU AND US TO ARBITRATE ANY DISPUTE ON AN INDIVIDUAL BASIS INSTEAD OF BY JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE READ THIS AGREEMENT CAREFULLY AS THEY MAY AFFECT YOUR RIGHTS.
1 Your Account.
1.2 Account Credentials; Security. You are solely responsible for maintaining the confidentiality and security of your Account credentials. Your Account credentials are for your internal use only and you will not sell, sublicense, transfer, or otherwise share your Account credentials with anyone else (except for agents and subcontractors performing work on your behalf). We are not responsible for unauthorized access to your Account.
1.3 Representations with Respect to Your Account Information. You represent and warrant that the data communicated by you to Fybe is correct and complete, especially the declaration concerning your status as a consumer or a business. You acknowledge and agree that providing incorrect information may affect your ability to access the Services and may result in suspension or termination in accordance with the terms of this Agreement. You must notify Fybe promptly of any changes of your Account information and confirm the accuracy of such information within days of receiving a legitimate and justified data-related inquiry from Fybe.
2 Fybe Content; Services; Service Level Agreements.
2.1 Generally. Subject to this Agreement, we will provide certain services as further described on the Site (the “Services”). The names, logos, trademarks, trade dress, arrangements, visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Site and the Services (“Fybe Content”) that we provide are protected by intellectual property and other laws. For clarity, the Services do not contain any Third-Party Services (as defined below).
2.2 Proprietary Rights; Grant of License. Fybe or its licensors own all right, title, and interest in and to the Site, the Services, Fybe Content, and all related technology and intellectual property rights. Subject to the terms of this Agreement, Fybe grants you a limited, royalty-free, revocable, non-exclusive, non-sublicensable, non-transferrable license to copy and use the Fybe Content solely in connection with your permitted use of the Services while your Account is in good standing. Subject to this Agreement, Fybe grants you a limited, royalty-free, fully revocable, non-exclusive, non-sublicensable, and non-transferrable license to exercise the aforementioned license while your Account is in good standing. You shall abide by and maintain all intellectual property notices, information, and restrictions contained in the Site and the Services. All rights and privileges of every kind and nature, except as specifically granted in this Agreement, are reserved.
2.3 License Restrictions. Neither you nor any End User will use the Fybe Content or the Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User will, or will attempt to, (a) access or use the Services or Fybe Content in a way intended to avoid incurring Service Fees (as defined below) or exceed or circumvent any usage limits or quotas; or (b) resell the Services or Fybe Content without binding the End User to the terms and conditions agreed in this Agreement. To the maximum extent permitted by applicable law, you shall not reverse engineer, disassemble, decrypt, or decompile the Services or Fybe Content, or otherwise attempt to discover, reconstruct, or identify the source code or any user interface techniques, algorithms, logic, protocols, or specifications included, incorporated, or implemented therein.
2.4 Service Level Agreements; Service Credits. We may offer certain commitments with respect to the availability, reliability, or resilience of certain Services (the “Service Level Agreements”). The Service Level Agreements are available here. We may offer Service credits from time to time, and any provision of such credits is governed by the Service Level Agreements. You acknowledge and agree that all credits, whether previously offered or otherwise, are revocable or subject to early expiration at any time and for any reason or no reason by us, including for abuse, misrepresentation of Account information, unauthorized transfer, or non-compliance with this Agreement or illegal conduct by you.
2.5 IP Addresses. Fybe will have the sole discretion to determine the specific hardware and features of the product category ordered. If Fybe provides you with one or more fixed IP addresses, Fybe reserves the right to modify the IP address(es) provided to you for any reason. Any such changes or modifications made to the IP address(es) will be communicated to you by Fybe.
2.6 No Maintenance or Support. Unless otherwise set out in a written agreement between you and Fybe, Fybe has no obligation to render technical support or maintenance services to you. Fybe does not offer any ongoing, free-of-charge support services to you. Unless specifically agreed to in writing, Fybe does not provide any direct support to End Users.
3 Payment; Service Fees; Taxes.
3.1 Payment Information. You must provide a valid form of payment. You must promptly notify us if your payment method is modified (e.g., change of credit card number, change of billing address), canceled (e.g., for loss or theft) or otherwise inoperable.
3.2 Service Fees. Your use of the Services will be subject to the fees and charges described on the Site (the “Service Fees”). We calculate and bill Service Fees monthly. We may bill you more frequently for accrued Service Fees if we suspect that your Account is fraudulent or at risk of non-payment. You will pay us the applicable Service Fees for use of the Services as described on the Site using one of the payment methods we support. All Service Fees payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. Unless otherwise expressly indicated by us, Service Fees for any new Service or new feature of a Service will be effective when we post updated Service Fees on the Site. We may increase or add new Service Fees for any existing Services you are using by giving you at least 30 days’ prior notice.
3.3 Payment of Service Credits. We will reduce the amount of any monthly Service Fees billed to you by the amount of Service credits, if any, accrued in the applicable billing month.
3.4 Taxes. You are responsible for any duties, customs fees, taxes, and related penalties, fines, audits, interest and back-payments relating to your use of the Services, including but not limited to national, state, or local sales taxes, use taxes, value-added taxes (VAT) and goods and services taxes (GST) (collectively, “Taxes”). Unless otherwise stated, the Service fees do not include and are not discounted or enhanced for any such Taxes. If we become obligated to collect or pay Taxes in connection with your use of the Services, those Taxes will be invoiced to you as part of our ordinary billing process or collected at the time of purchase. In certain states, countries, and territories, we may determine if your use of the Services is subject to certain Taxes, and if so, may collect such Taxes and remit them to the appropriate taxing authority. If you believe that a given Tax does not apply or that some amount must be withheld from payments to us, you must promptly provide us with a tax certificate, withholding receipt, tax identifier (e.g., VAT ID) or other adequate proof; provided, that, such information is valid and sufficiently authorized by all appropriate taxing authorities. You must also provide us with any tax identification information that is necessary for us to comply with our tax obligations, as we determine from time to time. You will be solely responsible for any misrepresentations made or non-compliance caused by you regarding Taxes, whether with respect to us or other parties, including any penalties, fines, audits, interest, back-payments, or further taxes associated with such misrepresentations or non-compliance.
3.5 Payment Currency. Fybe may advertise the Service Fees to you in currency other than United States Dollars (such advertised currency, the “Payment Currency”). All Service Fees must be paid in the Payment Currency: you are not tendering payment in one currency and receiving another currency from us. All refunds processed and Service credits offered will be provided in your Payment Currency. Third parties, such as your bank, credit card issuer, or card network may charge you additional fees, including processing fees and exchange fees.
4 Third-Party Services.
4.1 Third-Party Services. We may make available, through our Site or in connection with your use of the Services, certain content, information, or services published, produced, or maintained by third parties (“Third-Party Services”). Your use of Third-Party Services may be subject to separate terms and you are solely responsible for complying with such separate terms. To the fullest extent permitted by law, we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any such Third-Party Services.
4.2 No Endorsement of Third-Party Services. You acknowledge that any Third-Party Services are made available solely for your convenience and we do not own, operate, maintain, or endorse such Third-Party Services. You acknowledge and agree we are not responsible for the legality, accuracy, or appropriateness of any Third-Party Services and shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any such Third-Party Services.
5 Your Content.
5.1 Generally. You are solely responsible for any data, information, software (including machine images), or content that you or any End User transfers or transmits to us for processing, storage, or hosting by the Services in connection with your Account and any results or outputs that you or any End User derive from the foregoing through their use of the Services (your “Content”). You will ensure that your Content (and your End Users’ use of your Content or the Services) will not violate our Acceptable Use Policy or any applicable law. You own and retain ownership to your Content. You represent and warrant that you have all necessary rights, consents, and permissions to collect, disclose, transfer, use, and otherwise exploit your Content without violation or infringement of: (a) any third-party intellectual property, confidentiality, property, or privacy right; (b) applicable law or a binding order of a governmental body; or (c) any other third party contractual right. Our Acceptable Use Policy is available here.
5.2 Security. You are solely responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect, and backup your Content to provide the appropriate level of security, protection, and resilience, including, without limitation, encrypting your Content and performing backups in accordance with a data management strategy.
5.3 Our Use of Your Content. You may specify the Region in which your Content is stored. You consent to the storage of your Content in, and transfer of your Content into, the Region(s) you select. We will not (a) disclose your Content to any government or third party or (b) move your Content from the Region(s) selected by you; except in each case as necessary to comply with applicable law or a binding order of a governmental body. You acknowledge and agree that we have no duty or obligation to actively screen or monitor any of your Content; however, we may elect to screen or monitor any of your Content as necessary to comply with applicable law or a binding order of a governmental body. We may also screen or monitor your Content to enforce our rights under this Agreement or to investigate complaints of a violation of a third-party right or our Acceptable Use Policy. To the extent legally permitted, we will give you notice of any legal requirement or order referred to in this Section 5.3. “Region” means the geographic location where the data center providing the Services is located.
5.4 Third Party Licenses. You may, through provision of your Content, host or execute certain third-party software via the Services. You are solely responsible for maintaining and managing the licenses for such third-party software and paying any costs associated therewith.
6 Open Source Licenses. Some of the Fybe Content (including certain Third-Party Services) may be licensed under one or more open source, Creative Commons, or similar licenses (collectively, “Open Source Licenses”). Nothing in this Agreement prevents, restricts, or is intended to prevent or restrict you from obtaining such materials under the applicable Open Source Licenses or to limit your use of such materials under such Open Source Licenses. ANY FYBE CONTENT SUBJECT TO AN OPEN SOURCE LICENSE UNDER THIS SECTION 6 IS GOVERNED SOLELY BY THE TERMS OF SUCH OPEN SOURCE LICENSE AND IS PROVIDED “AS IS,” “WHERE IS,” “WITH ALL FAULTS,” AND ON AN “AS AVAILABLE” BASIS.
7 End Users.
7.1 Definition. Third parties (including, without limitation, your users, customers, employees, contractors, agents, or representatives) may access, use, or contribute to your Content, including through your own products and services, or public-facing websites, applications, interfaces, and other manifestations of your Content. Such third parties are collectively defined as your “End Users” for purposes of this Agreement. For clarity, “End Users” includes all such other users, regardless of whether they are intermediary parties, End Users of other End Users, or the like.
7.2 Your Responsibilities with Respect to End Users. You are solely responsible for any activity by your End Users and your End Users’ compliance with this Agreement. By providing your Content via the Services, you affirm, represent, and warrant that: (a) your Content, and your or your End Users’ use of your Content, will not violate this Agreement or any applicable law or third party rights; (b) you are solely responsible for the development, moderation, operation, maintenance, support, and use of your Content, including where your Content is contributed by your End Users; and (c) your Content, and your or your End Users’ use of Services Content, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade a right of privacy, publicity or other property rights of any other person; or (iii) cause us to violate any applicable or the rights of third parties.
To the extent you receive or possess any nonpublic information from us that is designated confidential or, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential, such information is our “Confidential Information” and must be handled according to this Section 8. Confidential Information includes, but is not limited to: (a) nonpublic information about our technology, customers, business plans, marketing and sales activities, finances, operations and other business information; and (b) the existence and content of our discussions or negotiations with you regarding your Account and/or use of the Services. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the information by a wrongful or tortious act or by violating the rights of us or third parties; or (iv) can be shown by documentation to have been independently developed by you without reference to the Confidential Information. You may not use Confidential Information except in connection with your use of the Service as permitted under this Agreement or as separately authorized in a signed writing by us. You agree to not disclose Confidential Information during the term of this Agreement, after you cease using the Services and after this Agreement otherwise no longer applies. You will take all reasonable measures to avoid disclosure or unauthorized use of Confidential Information, including at least the measures you take to protect your own confidential information of a similar nature.
To the fullest extent permitted by law, you are responsible for your use of the Site and Services, and you shall defend, indemnify, and hold harmless us and our employees, officers, directors, agents, contractors, and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees and costs, that arise from or relate to your Content, your End Users and your End Users’ use of your Content, or your access to or use of the Site and the Services, including your breach of this Agreement or applicable law, willful misconduct, negligence, illegal activity, breach of security or data, unauthorized access to or use of your Account, or infringement of a third party’s right, including any intellectual property, confidentiality, property, or privacy right. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, without limiting your indemnification obligations with respect to that matter, in which event you will make best efforts to assist and cooperate with us in defending the matter at your expense.
10 Temporary Suspension.
10.1 Generally. We may suspend your Account, your or any End User’s access to the Services, or any portion thereof immediately upon notice if we determine: (a) your or an End User’s use of the Services (i) poses a security risk to the Services or to any third party; (ii) could adversely impact our systems or networks, or our ability to deliver the Services to any of our other customers; (iii) could subject us or any third party to liability; or (iv) could be fraudulent; (b) you, or any End User, is in breach of this Agreement; (c) you are in breach of your payment obligations under Section 3; or (d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.
10.2 Effect of Suspension. If we suspend your right to access or use the Services or any portion thereof: (a) you remain responsible for the payment of all unpaid Service Fees incurred prior to and during the suspension period; and (b) you will not be entitled to any Service credits, if any, under the Service Level Agreements during the suspension period. If your right to access or use the Services is suspended under this Section 10.2, we make no guarantee that your Content will be properly retrieved or restored.
11 Term; Termination.
11.1 Term. This Agreement will commence on the Effective Date and remain in effect until terminated in accordance with this Section 11.
11.2 Our Termination Rights. While we prefer to give advance notice of termination, we reserve the right, in our sole discretion, to terminate your access to your Account and all or any part of the Site or the Services at any time, with or without notice, effective immediately.
11.3 Your Termination Rights. You may terminate this Agreement at any time through the Site and such termination shall become effective at the end of the then-current billing cycle. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE THAT WE HAVE NO DUTY OR OBLIGATION TO REFUND OR REIMBURSE YOU FOR ANY PRE-PAID, UNUSED SERVICE FEES.
11.4 Effect of Termination. Any termination under this Section 11 may result in the immediate forfeiture and destruction of your Content. Unless otherwise expressly agreed upon between the parties, any and all Service Fees paid to us are non-refundable and any and all Service Fees still owed to us at the time of such termination shall be immediately due and payable. Upon termination, any and all rights granted to you by this Agreement will be terminated immediately, and you must also promptly discontinue all use of the Site and the Services. All provisions of this Agreement which by their nature should reasonably be expected to survive termination shall survive, including Sections 2, 3, 5, 8, 9, 11, 12, 15, 17, and 24.
12 Disclaimer of Warranties.
THE SITE, THE SERVICES, AND FYBE CONTENT ARE PROVIDED “AS IS,” “WHERE IS,” “WITH ALL FAULTS,” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WE MAKE NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING THE SITE, THE SERVICES (INCLUDING ANY THIRD-PARTY SERVICES AVAILABLE THEREIN), OR FYBE CONTENT. WE FURTHER DISCLAIM ALL WARRANTIES, REPRESENTATIONS, OR GUARANTEES, EXPRESS OR IMPLIED, AS TO THE RELIABILITY, ACCURACY, COMPLETENESS, UNINTERRUPTED, OR ERROR-FREE NATURE OF THE SITE, THE SERVICES, OR FYBE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE-OF-DEALING OR USAGE OF TRADE. USE OF THE SITE, THE SERVICES, AND FYBE CONTENT IS AT YOUR SOLE RISK AND WE ARE NOT RESPONSIBLE FOR ANY LOSS, DAMAGE, OR EXPENSE THAT YOU MAY INCUR OR EXPERIENCE AS A RESULT OF YOUR RELIANCE THEREON. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW OR WHERE STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED.
13 Export Control.
13.1 Generally. By using the Services, you represent and warrant that your Content will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including those laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and the economic sanctions program implemented by the Office of Foreign Assets Control. You further represent and warrant that neither you nor any party that owns or controls you or your financial institutions are subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority. Additionally, Fybe reserves the right to refuse access to the Services in the following countries and territories, including North Korea, Syria, Sudan, Iran, Cuba, Russia and the People’s Republics of Donetsk and Luhansk and Crimea. You may not use the Services if you are located in any of these countries or territories, nor may you distribute the Services to third parties from these countries or territories.
13.2 Fybe will perform an ongoing sanctions-list-screening based on data provided by you to ensure your compliance with Section 13.1. Failure by Fybe to reliably ensure that you are not a natural person or company listed on applicable government sanctions lists may constitute grounds for noncompliance with this Section 13.1.
13.3 Violation of this Section 13 will result in the immediate termination of your access to the Services.
14 Limitation of Liability.
Regardless of the type of claim and to the maximum extent permitted by applicable law, in no event will Fybe be liable to you for (a) any incidental, special, consequential, direct, indirect, or punitive damages, whether based on warranty, contract, tort (including negligence), statute, or any other legal theory, whether or not we have been informed of the possibility of such damage; (b) for loss or inaccuracy of data, or cost of procuring substitute goods, services, or technology; or (c) for your use of any Third-Party Services.
15 Force Majeure.
In no event shall Fybe be liable for failure to perform these Agreement to the extent Fybe is prevented from performing as a result of any act or event that occurs and is beyond the control of Fybe, including, without limitation, acts of God, war, riot or insurrection, strikes, acts of government, weather, quarantine, fire, flood, earthquake, explosion, failure of utility or telecommunications, internet disruption, epidemic, pandemic or other unforeseen change in circumstances or any other cause beyond our reasonable control.
16 Governing Law.
This Agreement is governed by the laws of the State of New York, without regard to conflict of law principles. Subject to Section 17, below, which provides that disputes are to be resolved through binding arbitration or small claims court, to the extent that any lawsuit or court proceeding is permitted hereunder, you and Fybe agree to submit to the exclusive personal jurisdiction of the state courts and federal courts located within New York, New York, for the purpose of litigating all such disputes.
17 Dispute Resolution by Binding Arbitration; Class Action Waiver.
In the interest of resolving disputes between you and Fybe in the most expedient and cost-effective manner, you and Fybe agree to resolve disputes through binding arbitration or small claims court instead of in courts of general jurisdiction (“Agreement to Arbitrate”). Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. You acknowledge and agree that the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that individual party’s claim(s). Any relief awarded cannot affect other users.
YOU UNDERSTAND THAT BY ENTERING INTO THIS AGREEMENT, YOU AND FYBE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.1 Claims To Be Resolved by Binding Arbitration. You and Fybe agree to arbitrate all disputes and claims arising between the parties. This Agreement to Arbitrate is intended to be broadly interpreted. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between the parties, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before this Agreement or any prior version of this Agreement; claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of this Agreement.
17.2 Exceptions. Notwithstanding Section 17.1, you and Fybe agree that no statement herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in any competent court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
17.3 Arbitrator. Any arbitration between you and Fybe will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Fybe.
17.4 Notice and Process. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (the “Notice”). If to Fybe, the Notice should be addressed to: Cloud Solutions International, LLC, 8 The Green, Suite # 15585, Dover, DE 19901, USA or by e-mail at [email protected] (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If you and Fybe do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Fybe may commence an arbitration proceeding.
17.5 Fees. If you commence arbitration in accordance with this Agreement to Arbitrate, Fybe will, at your request, reimburse you for your payment of the arbitration filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any request for payment of fees by Fybe should be submitted by mail to the AAA along with your Notice and Fybe will make arrangements to pay all necessary fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), you agree to reimburse Fybe for all fees associated with the arbitration paid by Fybe on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. Any in-person arbitration hearings will take place at a location to be agreed upon in New York, New York. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.6 No Class Actions. Unless both you and Fybe agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
YOU AND FYBE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
17.7 Opt-Out. If you are a new Fybe user, you can choose to reject the arbitration agreement contained in this Section 17 by mailing us a written opt-out notice (“Opt-Out Notice”). The Opt-Out Notice must be postmarked no later than thirty (30) days after the date you accept this Agreement for the first time. You must mail the Opt-Out Notice to the Notice Address listed in Section 17.4, above.
The Opt-Out Notice must contain your name, address (including street address, city, state and zip code), and the user name(s) and email address(es) associated with your Account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of this Agreement will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with Fybe.
17.8 Modifications. If Fybe makes any future change to this Agreement to Arbitrate (other than a change to the Notice Address), you may reject any such change by sending us written notice within 30 days of the change to the Notice Address provided above. You acknowledge and agree that, if you reject any future change, your Account(s) with Fybe shall be immediately terminated and you will arbitrate any dispute between us in accordance with the language of this provision.
17.9 Severability and Enforceability. If an arbitrator or court decides that any part of this Section 17 is invalid or unenforceable, the other parts of this Section 17 shall still apply. If the entirety of this Section 17 is found to be unenforceable, then the parties agree that the exclusive jurisdiction and venue described in Section 16 shall govern any action arising out of or related to this Agreement, and that the remainder of this Agreement will continue to apply.
18 Waiver of Release for California Residents.
If you are a California resident, you waive California Civil Code § 1542, which says: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
19 Modification of the Services.
We reserve the right to modify or discontinue, temporarily or permanently, some or all of the Services at any time without any notice or further obligation to you. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of any of the Services. We may modify this Agreement at any time by posting a revised version on the Site or by otherwise notifying you in accordance with Section 24.5. The revised version of the Agreement will become effective upon posting or, if we notify you in accordance with Section 24.5, as stated therein. By continuing to use the Services or Fybe Content after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Site regularly for modifications to this Agreement. We last modified this Agreement on the “Last Updated” date listed at the beginning of this Agreement.
20 Use of Microsoft Products.
If your use of the Services involves the installation or use of Microsoft software products (e.g., Microsoft Windows Server or Microsoft SQL Server), the Microsoft Service Provider Use Rights (SPUR) and End User License Terms (EULT) may also apply (collectively, the “Microsoft Terms”). Please be aware that these provisions may limit or prevent the use of Microsoft product licenses that you have obtained from other sources on our servers. If you order a software product from Microsoft through Fybe, Fybe will provide you with a license based on the SPUR to allow you to use the product on a monthly basis. This license will restrict your use of the installed product, such as an operating system, in certain ways. Specifically, it will prohibit the use of Microsoft products for which additional or other licenses are required under the SPUR or EULT. You are responsible for complying with these restrictions and assume liability towards both Fybe and Microsoft for any misuse of the product. The Microsoft Terms are available here.
21.1 Entire Agreement. This Agreement constitutes the entire and exclusive understanding and agreement between you and Fybe regarding your use of and access to the Services, and except as expressly permitted above may only be amended by a written agreement signed by authorized representatives of the parties.
21.2 No Waiver. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
21.3 Paragraph Headers. Use of paragraph headers in this Agreement is for convenience only and shall not have any impact on the interpretation of provisions.
21.4 Severability. In the event that any part of this Agreement is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
22 Notice to California Residents.
Under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, by telephone at (800) 952-5210, or online at https://www.dca.ca.gov/consumers/complaints/consumer.shtml in order to resolve a complaint regarding the Services.
23 Copyright Policy.
By using the Site and the Services, you agree to comply with Fybe’s efforts to remove allegedly infringing material in response to Infringement Notices (as such term is defined in our Copyright Infringement Policy) made by End Users (each, a “Complainant”) in accordance with the Digital Millennium Copyright Act of 1998. Our Copyright Infringement Policy is available here.
If you believe that an Infringement Notice has been wrongfully submitted against you, you may provide written notice to our Copyright Agent (a “Counter-Notification”). Your Counter-Notification should be submitted from the email address associated with your Account and should contain the following information:
The material removed or to which access has been disabled and the location at which the material previously appeared (please be as detailed as possible and provide web addresses (URLs) leading directly to the material);
A statement by you, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification;
A statement that you consent to the jurisdiction of the Federal District Court: (i) in the judicial district where your address is located, or (ii) in the Southern District of New York, if your address is located outside the United States, and that you will accept service of process from the Complainant who submitted the Infringement Notice or his or her agent;
Your physical or electronic signature (typing your full legal name is sufficient).
Fybe’s Copyright Agent for receipt of Counter-Notification can be reached as follows: [email protected]. If you have already received a support ticket that contains information about the original Infringement Notice, please respond to that ticket to enable Fybe to resolve your issue effectively.
Fybe may, in its sole discretion, suspend or terminate your access to the Services if Fybe receives repeated Infringement Notices associated with your Account.