Definitions for our policies
- Customer Data
- any data, information, content, records, and files that Customer (or any of its Permitted Users) loads, receive through, transmits to or enters into the Fable SaaS Services, including but not limited to Personal Information.
- Fable Feedback
- the information resulting from Fable’s testing of Customer’s digital products that is provided by Fable to Customer during the provision of the Fable SaaS Services.
- Fable SaaS Services
- services through which Fable hosts and makes available the Fable accessibility platform, which is used by companies to test their digital products with people with disabilities, as described in an Order Form and any component thereof. The term “Fable SaaS Services” includes the Support Services, but does not include Professional Services.
- Licensed Third Party Technology
- third party technology that is licensed under separate license terms and not under this Agreement.
- modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
- Order Form
- Exhibit A, or any additional order form that references this Agreement and that is executed by both Parties.
- Permitted User
- those employees and independent contractors authorized by Customer on Customer’s behalf to access and use the Fable SaaS Services.
- Personal Information
- information about an identifiable individual.
- Professional Services
- the consulting, training and other professional services set out in an Order Form. The term “Professional Services” does not include Fable SaaS Services.
- any websites used by Fable to provide the Fable SaaS Services, including the websites located at www.makeitfable.com or www.workwithfable.com.
Online Terms and Conditions
These Online Terms and Conditions form part of the Fable Subscription Agreement referencing these Online Terms and Conditions. Except as otherwise expressly set forth in these Online Terms and Conditions, all capitalized terms used herein and not otherwise defined will have the meaning set out in the Cover Pages or the Terms and Conditions.
1. Fable Subscription Services
- Customer User Accounts. Upon Customer’s request and as specified in the Cover Pages, Fable will issue one or more accounts (the “Customer User Account”) to Customer for use by Customer and all Permitted Users. Customer will ensure that Permitted Users only use the Fable Subscription Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify Fable of any actual or suspected unauthorized use of the Fable Subscription Services. Fable reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
- Restrictions on Use. Customer acknowledges and agrees to the terms and conditions in Fable’s Acceptable Use Policy, which is available at https://www.workwithfable.com/beta/policies/. The Acceptable User Policy is incorporated by reference into this Agreement.
- Suspension of Access; Scheduled Downtime; Modifications. Fable may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement: (i) suspend Customer’s access to or use of the Fable Subscription Services: (A) for scheduled maintenance for which advanced written notice is provided; (B) due to a Force Majeure; (C) if Fable believes in good faith that Customer or any Permitted User has violated any provision of this Agreement; (D) to address any emergency security concerns; or (E) if required to do so by a regulatory body or as a result of a change in applicable law; and (ii) make any Modifications to the Fable Subscription Services.
- Subcontracting. Fable may engage third parties to provide the Fable SaaS Services. Subcontractors are bound by confidentiality to Fable’s customers.
- Branding. If the Customer’s environment in the Fable Subscription Services will be branded with Customer’s branding, Customer will provide all content including business information, logos, color schemes, and word marks (“Customer Content”) as reasonably required by Fable to implement such branding. Customer hereby grants Fable a limited, non-exclusive and royalty-free license to access, use, copy and modify the Customer Content and all intellectual property rights therein to provide the branded environment.
- Fable will defend, indemnify and hold harmless Customer, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Permitted Users) claims (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (A) all or any portion of the Fable Services infringing, violating, or misappropriating the intellectual property rights of any third party; or (B) Fable’s breach of any of Fable’s representations or warranties under this Agreement. Fable will pay any final judgment rendered by a court of competent jurisdiction, or settlement agreed to in writing by Fable, with respect to such claim. These obligations are contingent upon Customer promptly notifying Fable in writing of any claims or threatened claims, Fable having sole control over the defense and all negotiations for settlement of any such claim, and Customer giving all reasonable assistance to Fable in the defense and settlement of the claim.
- If the Fable Services becomes, or in Fable’s opinion is likely to become, the subject of an infringement claim, Fable may, at its option and sole discretion: (A) obtain for Customer the right to continue to use the Fable Services as provided in this Agreement; (B) replace the Fable Services with another service that provides similar functionality; or (C) if Fable determines that neither of the foregoing options are reasonably available, Fable may require that Customer cease use of the Fable Services and Fable will refund to Customer a pro-rated portion of the applicable Fees paid.
- Fable’s obligations under this Section 5(a) do not apply to any claims (including damages, recoveries, deficiencies, interest, penalties and legal fees) arising from or in connection with any of the following (the “Excluded Claims”): (A) the combination of the Fable Services with any other software, products, equipment, components, process, or material in a manner not authorized by Fable; (B) use of the Fable Services in a manner not permitted by or in breach of this Agreement; (C) failure to use replacement or modified services that provides substantially similar functionality to the original Fable Services if the replacement or modified services would have rendered the Fable Services non-infringing; and (D) Fable’s compliance with Customer’s instructions, specifications, or requirements. No indemnification for any third party products supplied by Fable is provided under this Agreement, unless and to the extent such indemnification is provided to Customer under the terms and conditions of Fable’s agreement with the licensor of any such third party product.
- Customer Indemnity. Customer will defend, indemnify and hold harmless Fable, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Permitted Users) claims (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer’s breach of any of Customer’s representations or warranties under this Agreement; or (iii) any Excluded Claim. Customer will fully cooperate with Fable in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Fable.
3. Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
- AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EACH PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL EITHER PARTY’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
Customer will have access to Fable’s technical support services at all hours of operation (“Support Services”) via email at email@example.com.
6. Service LevelsFable will make commercially reasonable efforts to provide Fable Feedback within the time specified in the Cover Pages (the “Service Level”). If Fable fails to meet this Service Level, Customer will be credited as described in the Cover Pages.
7. Confidential Information
- Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
- Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
- Exceptions to Confidentiality. Notwithstanding Section 6(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Fable, to potential assignees, acquirers or successors of Fable if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Fable.
8. Warranty and Disclaimer
- Customer Warranty. Customer represents and warrants to, and covenants with Fable that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Fable to provide the Fable Subscription Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Fable and to or from all applicable third parties.
- GENERAL DISCLAIMER. FABLE DOES NOT WARRANT THAT THE FABLE SERVICES OR FABLE FEEDBACK WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE FABLE SERVICES OR FABLE FEEDBACK. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE FABLE SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY FABLE TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD PARTY TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY.
- TO THE EXTENT PERMITTED BY APPLICABLE LAW, FABLE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, Fable EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE FABLE SERVICES OR FABLE FEEDBACK (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
9. General Provisions
- Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent to the applicable Party and addressed as set forth on the Cover Pages. Fable may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Fable current at all times during the Term.
- Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Fable from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
- Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Fable Subscription Services.
- Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
- Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).
- Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
- Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Independent Contractors. Fable’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral. If there is a conflict or inconsistency between these Online Terms and Conditions or the Terms and Conditions and the Cover Pages, then the provisions of these Online Terms and Conditions or the Terms and Conditions, as applicable, will prevail over these Online Terms and Conditions or the Terms and Conditions, as applicable, to the extent the Cover Pages expressly refers to the provisions of these Online Terms and Conditions or the Terms and Conditions over which it prevails.
- Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
- English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
- Counterparts; Electronic Signature. This Agreement may be executed by the Parties in counterparts, each of which when so executed and delivered will be an original, but all such counterparts will together constitute one and the same instrument. An electronic signature using a qualified electronic certificate or facsimile signature will be treated in all respects as having the same effect as an original signature.
Acceptable Use Policy
The following is Fable’s Acceptable Use Policy (the "AUP") that describes prohibited uses of the Fable SaaS Services.
The provisions contained in the AUP constitute the terms of your use as it relates to acceptable behavior and conduct in connection with your use of the Fable SaaS Services. THESE PROVISIONS ARE NOT MEANT TO BE EXHAUSTIVE. In general, any conduct that violates any law, regulation, or any of the generally accepted norms of the Internet community, whether or not expressly mentioned in the AUP, is prohibited.
Your use of the Fable SaaS Services is subject to the most current version of the AUP posted on the Website. You agree to comply with this AUP. Fable reserves the exclusive right, at any time, to change any portion of the AUP. Any changes will be effective upon posting of the revisions on the Website. Your continued use of the Website or Fable SaaS Services is your acknowledgment of the changes to the AUP, and if you don’t agree to the changes, you must immediately discontinue use of the Website and Fable SaaS Services.
Restrictions on Use
Customer will not itself, and will not permit others to:
- sub-license, sell, rent, lend, lease or distribute the Fable SaaS Services or any intellectual property rights therein, or otherwise make the Fable SaaS Services available to others;
- use the Fable SaaS Services to permit timesharing, service bureau use or commercially exploit the Fable SaaS Services;
- use or access the Fable SaaS Services (A) in violation of any applicable law or intellectual property right, (B) in a manner that threatens the security or functionality of the Fable SaaS Services, or (C) for any purpose or in any manner not expressly permitted in this Agreement;
use the Fable SaaS Services to create, collect, transmit, store, use or process any Customer Data:
- that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
- that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
- Modify the Fable SaaS Services;
- reverse engineer, de-compile or disassemble the Fable SaaS Services;
- remove or obscure any proprietary notices or labels on the Fable SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
- access or use the Fable SaaS Services for the purpose of building a similar or competitive product or service; or
- perform any vulnerability, penetration or similar testing of the Fable SaaS Services.
- upload or transmit, or request any tester to upload or transmit, any of the following content:
- personal financial information, cardholder information, medical information, consumer credit information, personal information of children under 13 years old, student information or any other non-public personally identifiable information that could be legally considered private or sensitive, including without limitation social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers, passwords, and credit card numbers;
- content that is libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age;
- content that promotes or enables any illegal activity; or
- content that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs or code
In the provision of the Fable Services, Customer Data may include individually identifiable information that would allow Fable to determine the actual identity of, and contact, a specific living person, account settings and other data (“Personal Information”).
Any Personal Information required in the rendering of Fable Services is treated as confidential. All information is stored securely and is accessed by authorized personnel only. Fable implements and maintains appropriate technical, security and organizational measures to protect Personal Information against unauthorized or unlawful processing and use, and against accidental loss, destruction, damage, theft or disclosure.
Collection and Use
During a Customer’s utilization of Fable SaaS Services and Fable Services, Customers may be requested to provide information such as name, company name, email address, address, telephone or other relevant Personal Information. This Personal Information is used by Fable to identify each Permitted User and provide them with Fable Services, support, billing and to meet other contractual obligations. Fable will delete Customer’s Personal Information upon request from such Customer, unless complying with such request would violate an applicable law, statute or other contractual obligation.
All Personal Information shall be processed in data storage centers located in the United States.
Fable has adopted reasonable physical, technical and organizational safeguards against accidental, unauthorized or unlawful destruction, loss, alteration, disclosure, access, use or processing of Customer Data. Fable will promptly notify the Customer in the event of any known unauthorized access to, or use of, Customer Data.
All data collected by Customers through Fable Services will be stored exclusively in secure hosting facilities provided by Bluehost Hosting Services in partnership with Endurance.
Bluehost User Agreement: https://www.bluehost.com/terms/user-agreement
Fable’s contract with its hosting provider ensures that all hosting is performed in accordance with the highest security regulations. Fable’s policy is to protect and safeguard any personal information obtained by Fable in accordance with Canadian laws governing the protection of personal information and data. Accordingly, Fable adheres to practices and policies that aim to safeguard all such data.
To learn more about Endurance’s security mechanisms, please see: https://drive.google.com/drive/u/0/folders/1WnFbqak4lnqlQCtgb4URyPRypFgql2M7
Authorization of Movement
In the case that Fable should need to modify the geographical location of any, or all, data storage centers, Customers will be notified within reasonable time, and approval will be obtained by those affected, prior to movement.
Retention and Deletion
Fable will keep Customer Data needed to provide Fables Services to the Customer as long as there exists a valid business purpose, in accordance with applicable law, and will delete such data upon written request from the Customer, provided such deletion complies with all applicable laws or regulations. When a Customer’s account is terminated or expired, all Customer Data collected through the platform will be deleted upon written request from Customer as required by applicable law.
In compliance with Sarbanes-Oxley Act (SOX) legislation, Fable creates and retains an archive of all corporate records for no less than five years or a time determined by the individual policies of our clients on a case by case basis.