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Cyborg Terms of Service Agreement
THESE TERMS CREATE A LEGALLY BINDING CONTRACT. IT MAY CHANGE AS THE SERVICES CHANGE, AND YOU AGREE YOU WILL REVIEW ANY UPDATES REGULARLY.
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE WEBSITE, STEALTH, AND ANY OTHER SERVICE OFFERED BY CYBORG INC. (“CYBORG”), CURRENTLY ACCESSIBLE VIA CYBORG.CO (“WEBSITE”) OR OUR MOBILE APPLICATIONS(“APPLICATION”). THIS AGREEMENT GOVERNS (I) THE USE OF THE WEBSITE AND APPLICATION, AND APPLY TO ALL USERS USING THE WEBSITE AND/OR THE APPLICATION IN ANY WAY AND (II) THE SERVICES, SOFTWARE, AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE OR APPLICATION (EACH, A “SERVICE” AND COLLECTIVELY, THE “SERVICES”).
By clicking the “Accept” button, completing the registration process, using any of the Services, installing or using the Application and/or browsing the Website, you represent that (1) you have read, understand, and agree to be bound by this Agreement, (2) you are of legal age to form a binding contract with Cyborg, and (3) you have the authority to enter into this Agreement personally or on behalf of the entity you have named as the user, and to bind that entity to this Agreement. The term “you” refers to the individual or legal entity, as applicable, identified as the user when you registered for an Account with Cyborg through the Services. If you do not agree to be bound by this Agreement, you may not access or use the Services.
PLEASE BE AWARE THAT SECTION 13 OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND CYBORG HAVE AGAINST EACH OTHER WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT. SECTION 13 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND CYBORG BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT TOARBITRATE WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THE AGREEMENT: (1) YOU AND CYBORG WILLONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ONAN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTIONOR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT ORCLASS-WIDE ARBITRATION; AND (2) EACH OF US IS WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMSAND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Website (“Supplemental Terms”), which are subject to, and incorporated by reference into, this Agreement. To the extent there is any conflict between this Agreement and any Supplemental Terms, such Supplemental Terms will control with respect to the subject matter of such conflict.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY CYBORG IN ITS SOLE DISCRETION AT ANY TIME. WHEN CHANGES ARE MADE, CYBORG WILL MAKE A COPY OF THE UPDATED AGREEMENT AVAILABLE ON THE SERVICES AND UPDATE THE “LAST UPDATED DATE” AT THE TOP OF THIS AGREEMENT. IF WE MAKE ANY MATERIAL CHANGES TO THE AGREEMENT, WE WILL PROVIDE NOTICE OF SUCH MATERIAL CHANGES ON THE SERVICES AND ATTEMPT TO NOTIFY YOU BY SENDING AN E-MAIL TO THE E-MAIL ADDRESS PROVIDED IN YOUR ACCOUNT REGISTRATION. ANY CHANGES TO THE AGREEMENT WILL BE EFFECTIVE IMMEDIATELY FOR NEW USERS OF THE SERVICES AND WILL BE EFFECTIVE FOR EXISTING REGISTERED USERS UPON THE EARLIER OF (A) THIRTY (30) DAYS AFTER THE “LAST UPDATED DATE” AT THE TOP OF THIS AGREEMENT, OR (B) YOUR CONSENT TO AND ACCEPTANCE OF THE UPDATED AGREEMENT IF CYBORG PROVIDES A MECHANISM FOR YOUR IMMEDIATE ACCEPTANCE IN A SPECIFIED MANNER (SUCH AS A CLICK-THROUGH ACCEPTANCE), WHICH CYBORG MAY REQUIRE BEFORE FURTHER USE OF THE SERVICES IS PERMITTED. IF YOU DO NOT AGREE TO THE UPDATED AGREEMENT, YOU MUST STOP USING ALL SERVICES UPON THE EFFECTIVE DATE OF THE UPDATED AGREEMENT. OTHERWISE, YOUR CONTINUED USE OF ANY OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE UPDATED AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED AGREEMENT. PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT AGREEMENT. YOU AGREE THAT CYBORG’S CONTINUED PROVISION OF THE SERVICES IS ADEQUATE CONSIDERATION FOR THE CHANGES IN THE UPDATED AGREEMENT.
THE WEBSITE AND SERVICES ARE THE PROPERTY OF CYBORG. YOU MAY ONLY ACCESS THE WEBSITE, APPLICATION AND/OR SERVICES IN ACCORDANCE WITH THE DOCUMENTATION. YOU MAY NOT DO ANYTHING EXPRESSLY PROHIBITED IN THIS SECTION.
1. Services; License Grant
1.1. Overview. The Services are intended to be a “digital lockbox”, designed as a limited-feature, privacy-first end-to-end encrypted cloud storage platform where users can store sensitive data in a secure, searchable format.
1.2. License. Subject to the terms and conditions of this Agreement, during the Term (as defined below), Cyborghereby grants you a non-exclusive, worldwide, royalty-free, non-transferable, non-sub-licensable right for you and any of your employees and independent contractors authorized by you to access and use the Services on your behalf (“Authorized Users”) to (a) access and use the Services on a remote basis, including any software programs and associated interfaces and related technology that Cyborg makes available pursuant to this Agreement, in accordance with the standard end-user technical documentation, specifications, materials and other information Cyborg may make available electronically (the “Documentation”) and (b) to use and reproduce a reasonable number of copies of the Documentation, in each case, solely for your own internal business purposes.
1.3. License Restrictions. You agree that you will not, and will not permit any other party to, directly or indirectly: (a) access or use the Services or Documentation except as expressly permitted herein; (b) modify, adapt, alter or translate the Services or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Services or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services; (e) use or copy the Services or Documentation except as expressly allowed under this Agreement; or (f) disclose or transmit any data contained in the Services to any individual, except as expressly allowed herein. You acknowledge and agree that the Services and Documentation will not be used, and are not licensed for use, in connection with any of your time-critical or mission-critical functions and that you will not upload, provide or submit any sensitive personal information as defined in Article 9 and 10 of the EU General Data Protection Regulation (GDPR) and other applicable data protection laws or personal health information to the Services.
1.4. Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”: You shall not use the Services in a manner that (a) violates 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; (b) is unlawful, harassing, abusive, tortious, threatening, harmful, inflammatory, discriminatory, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, libelous, deceptive, fraudulent, offensive, hateful, or is racially, ethnically or otherwise objectionable (in our sole discretion); (c) may constitute, contribute to, depict or encourage criminal, illegal, or terrorist activity; (d) may create a risk of, glorify, encourage, or threaten violence, harm, physical or mental injury, emotional distress, death, disability, disfigurement, self-harm, or any other loss or damage to you or any other person or to any animal or to any property; (e) contains adult content, including pornographic, obscene, and/or sexual terms, descriptions and/or images, nudity, profanity, or graphic violence; (f) exploits political agendas or “hot button” issues for commercial use, or that contains hate speech based upon the race, sex, national origin, religious affiliation, marital status, sexual orientation, gender identity, or language of an individual or group; or (g) harms minors in any way, or solicits or otherwise attempts to gain any information from a minor. Cyborg reserves the right to suspend your access to the Services for any failure, or suspected failure, to comply with Cyborg’s Acceptable Use Policy.
1.5. App License. Subject to your compliance with the Agreement, Cyborg grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use such App Store Sourced Application (a) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of such Google Play Sourced Application on a shared basis within your designated family group.
IN ORDER TO ACCESS CERTAIN FEATURES OF THE SERVICES, YOU MAY NEED TO REGISTER AN ACCOUNT. YOU AGREE TO PROVIDE TRUE AND ACCURATE INFORMATION WHEN YOU REGISTER AN ACCOUNT ON THE SERVICES.
2. Your Account
2.1. Registering Your Account. In order to access the Services, you will be required to become a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered an account on the Website or Application (“Account”).
2.2. Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Cyborg’s Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Website and Services by minors. You may not share your Account or password with anyone, and you agree to (y) notify Cyborg immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Cyborg has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Cyborg has the right to suspend or terminate your Account and refuse any and all current or future use of the Website or Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Cyborg reserves the right to remove or reclaim any usernames at any time and for any reason, including claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use any Services if you have been previously removed by Cyborg, or if you have been previously banned from any of Cyborg’s products or services.
2.3. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Cyborg.
WE OWN OUR SERVICES, DOCUMENTATION AND OUR TRADEMARKS. IF YOU PROVIDE US WITH ANY COMMENTS OR FEEDBACK ABOUT THE WEBSITE, APPLICATION AND/OR SERVICES, WE HAVE THE RIGHT TO USE THAT FEEDBACK WITHOUT ANY PAYMENT OR OTHER OBLIGATION TO YOU
3.1. Ownership by Cyborg. The Services and Documentation are licensed and not sold to you, and no title or ownership to such Services, Documentation, or the intellectual property rights embodied therein passes as a result of this Agreement or any act pursuant to this Agreement. The Services and Documentation, and all intellectual property rights therein are the exclusive property of Cyborg and its suppliers, and all rights in and to the Services and Documentation not expressly granted to you in this Agreement are reserved by Cyborg. Cyborg and its suppliers own all rights, title, and interest to the Services and Documentation. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future patents of Cyborg, except to the extent necessary for you to use the Services and Documentation as expressly permitted under this Agreement. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or the Documentation.
3.2. Trademarks. Cyborg, Stealth and all related graphics, logos, service marks and trade names used on or in connection with any of the Services are the trademarks of Cyborg or its suppliers and may not be used without permission in connection with your, or any third-party, products or services.
3.3. Feedback. You hereby grant to Cyborg a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services or any other products or services of Cyborg, any suggestions, enhancement requests, recommendations or other feedback provided by you, relating to the Services. Cyborg will not identify you as the source of any such feedback.
YOU OWN YOUR DATA, BUT YOU PROVIDE US WITH A LICENSE TO YOUR DATA TO PROVIDE AND IMPROVE THE SERVICES.
4. Customer Data and Responsibilities
4.1 Customer Data. “Customer Data” consists of data and other information made available to us by you through the use of the Services under this Agreement. You instruct us to use and disclose Customer Data only as necessary to (a) provide, maintain and update the Services consistent with this Agreement, (b) detect, prevent, and investigate security incidents, fraud, spam, or unlawful use of the Services, (c) respond to any technical problems or your queries and ensure the proper working of the Services and (d) as compelled by law. You acknowledge that the Internet and telecommunications providers’ networks are inherently insecure. Accordingly, you agree Cyborg is not liable for any changes to, interception of, or loss of Customer Data while in transit via the Internet or a telecommunications provider’s network.
4.2. Ownership. Customer is solely responsible for the accuracy, quality and legality of Customer Data. Customer will obtain all third party licenses, consents and permissions needed for Cyborg to use the Customer Data to provide the Services. Customer will be solely responsible for obtaining from third parties all necessary rights for Cyborg to use the Customer Data submitted by or on behalf of Customer for the purposes set forth in this Agreement. The Customer Data, and all worldwide intellectual property rights in it, is the exclusive property of Customer. All rights in and to the Customer Data not expressly granted to Cyborgin this Agreement are reserved by Customer.
4.3. Customer Warranty. Customer represents and warrants that any Customer Data will not (a) violate the Acceptable Use Policy; (b) contain any viruses, worms or other malicious computer programming codes intended to damage Cyborg’s system or data; and (c) otherwise violate the rights of a third party. Cyborg is not obligated to back up any Customer Data; the Customer is solely responsible for creating backup copies of any Customer Data at Customer’s sole cost and expense. Customer agrees that any use of the Services contrary to or in violation of the representations and warranties of Customer in this Section 4.3 constitutes unauthorized and improper use of the Services.
4.4. Customer Responsibility for Data and Security. Customer will have access to the Customer Data and will be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other access protocols required in order the access the Services. Customer will have the ability to export Customer Data out of the Services and is encouraged to make its own back-ups of the Customer Data. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
CYBORG MAY DISCLOSE CONFIDENTIAL INFORMATION TO YOU, AND YOU SHALL PROTECT THE CONFIDENTIALITY OF ANY SUCH CONFIDENTIAL INFORMATION OF CYBORG.
5.1. Confidential Information. Subject to Section 5.3, all information disclosed by one party (“Disclosing Party”) to the other party (the “Receiving Party”) during the term of this Agreement, whether oral, written, graphic or electronic, shall be deemed “Confidential Information”. The Services, Documentation, and all enhancements and improvements thereto shall be Confidential Information of Cyborg. All data, other than User Content, provided by Cyborg to you in connection with the Services shall be Cyborg’s Confidential Information. All User Content shall be your Confidential Information.
5.2. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and are under a duty of confidentiality no less restrictive than the Receiving Party’s duties hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.
5.3. Exceptions. The Receiving Party’s obligations under Section 5.2 with respect to Confidential Information of the Disclosing Party will not apply to any information that: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party free of any obligation of confidentiality; (b) is disclosed to the Receiving Party free of any obligation of confidentiality by a third party who had the right to make such disclosure; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii)necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
CYBORG WILL PROVIDE SUPPORT FOR REGISTERED USERS’ USE OF THE SERVICES.
6.1. Support and Maintenance. Subject to the terms and conditions of this Agreement, Cyborg will exercise commercially reasonable efforts to (a) provide support for your use of the Services, and (b) keep the Services operational and available to you, in each case in accordance with its standard policies and procedures.
7. Term and Termination
7.1. Term. This Agreement will begin on the date that you accept it (in accordance with the preamble) (the “Effective Date”) and continue until terminated in accordance with the terms herein (the “Term”).
7.2. Termination of Agreement. This Agreement will remain in full force and effect until terminated as set forth herein. You may terminate your Account, your access to the Services, and this Agreement at any time, for any reason, by emailing email@example.com or by terminating your Account through the Website or Application. At its sole discretion, Cyborg may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Cyborg reserves the right to take appropriate legal action, including pursuing civil, criminal or injunctive redress.
7.3. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service and the termination of any applicable licenses or rights. Termination of the Agreement or all Services also includes deletion of your password and all related information associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. Cyborg will not have any liability whatsoever to you for any suspension or termination.
7.4. Survival. Sections 1.3, 3, 5, 7.3, 7.4, 9, 10, 11, 12, 13 and 14 will survive the termination of this Agreement
WE MAY LINK TO CERTAIN WEBSITES NOT OWNED BY US, WHICH ARE NOT SUBJECT TO THESE TERMS. YOU ACCESS THOSE SITES AT YOUR OWN RISK.
8. Third-Party Services
8.1. Third-Party Links. The Services may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Cyborg does not control and is not responsible for Third-Party Links or any content, products or services accessible through such links. Cyborg provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all ThirdParty Links is at your own risk.
8.2. App Stores. You acknowledge and agree that the availability of the App Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store, or Google Play Store (the “App Store”). You acknowledge that the Agreement is between you and Cyborg and not with the App Store. Cyborg, not the App Store, is solely responsible for the App Services, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
8.3. Accessing and Downloading the Application from App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Cyborgonly, and not Apple, and (ii) Cyborg, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Cyborg and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Cyborg.
(d) You and Cyborg acknowledge that, as between Cyborg and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Cyborg acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Cyborg and Apple, Cyborg, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Cyborg acknowledge and agree that Apple, and Apple’s subsidiaries, are thirdparty beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of this Agreement, you must comply with all applicable thirdparty terms of agreement when using the App Store Sourced Application.
8.4. Accessing and Downloading the Application from Google Play. The following applies to any Google Play Sourced Application accessed through or downloaded from Google Play:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Cyborgonly, and not Google, Inc. (“Google”), and (ii) Cyborg, not Google, is solely responsible for the Google Play Sourced Application and content thereof. Your use of the GooglePlay Sourced Application must comply with the Google Play Terms of Service.
(b) Google is only a provider of Google Play where you obtained the Google Play Sourced Application.
(c) Cyborg, and not Google, is solely responsible for its Google Play Sourced Application;
(d) Google has no obligation or liability to you with respect to Cyborg’s Google Play Sourced Application or this Agreement; and
(e) You acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Cyborg’s Google Play Sourced Application.
YOU USE THE WEBSITE, APPLICATION AND SERVICES AT YOUR OWN RISK. WE DO NOT MAKE ANY WARRANTIES OR GUARANTEES.
9. Disclaimers of Warranties and Conditions
9.1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. CYBORG EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ARISING FROM USE OF THE SOFTWARE.
9.1.1. CYBORG MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
9.1.2. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO OUR PROPERTY, INCLUDING YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
9.1.3. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. CYBORG MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
9.1.4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CYBORG OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
9.1.5. FROM TIME TO TIME, CYBORG MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CYBORG’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
9.2. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT CYBORG IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD CYBORG LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICES AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
WE WILL BE RESPONSIBLE FOR CLAIMS AND LIABILITY RELATED TO ANY ALLEGATIONS OF INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY. YOU WILL BE RESPONSIBLE FOR CLAIMS AND LIABILITY THAT RELATE TO YOUR USE OF THE SERVICES.
10.1. By Cyborg.
10.1.1. Cyborg’s Obligation. Cyborg will defend any suit brought against you by a third party to the extent that the suit is based upon a claim that the Services, as provided to you, infringe such third party’s United States copyrights or patents, or misappropriates such third party’s trade secrets recognized as such under the Uniform Trade Secrets Act or such other similar laws, and Cyborg will pay those costs and damages finally awarded against you in any such action or those costs and damages agreed to in a monetary settlement of such claim, in each case that are specifically attributable to such claim. However, such defense and payments are subject to the conditions that: (a) Cyborg will be notified promptly in writing by you of any such claim; (b) Cyborg will have sole control of the defense and all negotiations for any settlement or compromise of such claim; and (c) you will cooperate and, at Cyborg’s request and expense, assist in such defense. This Section 10.1 states Cyborg’s entire liability and your sole and exclusive remedy for any infringement and/or misappropriation claims.
10.1.2. Alternative. If your use of the Services is prevented by injunction or court order because of infringement, or should the Services be likely to become the subject of any claim in Cyborg’s sole opinion, you will permit Cyborg, at the sole discretion of Cyborg and no expense to you, to: (i) procure for you the right to continue using such Services in accordance with this Agreement; or (ii) replace or modify the Services so that it becomes non-infringing while providing substantially similar features. Where (i) and (ii) above are not commercially feasible for Cyborg, the applicable licenses will immediately terminate and Cyborg will refund pro-rated fees for the remainder of the Term.
10.1.3. Exclusions. Cyborg will have no liability to you for any claim of infringement or misappropriation to the extent based upon: (a) use of the Services not in accordance with this Agreement or the Documentation; (b) the combination of the Services with third party hardware or software not conforming to the operating environment specified in Documentation; or (c) any modification of the Services by any person other than Cyborg (the “Exclusions”). You will indemnify Cyborg against all liability, damages and costs (including reasonable attorneys’ fees) resulting from any such Exclusions.
10.2. By You. You will indemnify, defend and hold Cyborg and its directors, officers, affiliate, employees, agents, partners, licensors, and suppliers harmless from and against any and all actual or alleged third-party claims and accompanying liabilities, losses, damages, costs and expenses, including reasonable external attorneys’ fees arising out of or in connection with your breach or alleged breach of Section 4.3.
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR AMOUNTS GREATER THAN THE AMOUNTS YOU PAY TO US DURING ANY 6-MONTH PERIOD.
11. Limitation of Liability
11.1. TO THE FULLEST EXTENT PROVIDED BY LAW, EXCEPT FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR ANY SERVICES OR SUPPORT SERVICES PROVIDED HEREIN, UNDER ANY LEGAL THEORY, INCLUDING LOSS OF DATA, LOSS OF THE USE OR PERFORMANCE OF ANY PRODUCTS OR SERVICES, LOSS OF REVENUES, LOSS OF PROFITS, OR BUSINESS INTERRUPTION, EVEN IF SUCH PARTY KNOWS OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PROVIDED BY LAW, EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, IN NO EVENT WILL EITHER PARTYS TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY CYBORG FROM YOU UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING SUCH CLAIM. THIS SECTION 12 WILL APPLY EVEN IF AN EXCLUSIVE REMEDY OF YOU UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
11.3. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CYBORG AND YOU.
12. Procedure for Making Claims of Copyright Infringement
It is Cyborg’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Cyborg by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Cyborg’s Copyright Agent for notice of claims of copyright infringement is as follows: Cyborg Copyright Compliance, 4 World Trade Center, Suite 2909, New York, NY 10007.
WE WILL USE ARBITRATION TO RESOLVE ANY CLAIMS BETWEEN US, AND YOU CANNOT JOIN A CLASS ACTION LAWSUIT OR OBTAIN A JURY TRIAL FOR ANY DISPUTES YOU HAVE WITH US RELATED TO THE USE OF THE WEBSITE AND SERVICES.
13. Arbitration Agreement
13. Arbitration Agreement. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires that you and Cyborg arbitrate against one another. PLEASE BE AWARE THATTHIS SECTION 13 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND CYBORG HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 13 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTESBETWEEN YOU AND CYBORG BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 13ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 13CAREFULLY.
13.1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Cyborgagree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Cyborg may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Cyborg may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.
13.2. Informal Dispute Resolution. There may be instances when a Dispute arises between you and Cyborg. If that occurs, Cyborg is committed to working with you to reach a reasonable resolution. You and Cyborg agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost and mutually beneficial outcome. You and Cyborg therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Cyborg that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to firstname.lastname@example.org or regular mail to our offices located at Cyborg Inc., 4 World Trade Center, Suite 2909, New York, New York, 10007. The Notice must include: (1) your name, telephone number, mailing address, e-mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e-mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
13.3. Waiver of Jury Trial. YOU AND CYBORG HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Cyborg are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.4. Waiver of Class and Other Non-Individualized Relief. YOU AND CYBORG AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 13.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Section
13.9. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Cyborg agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Cyborg from participating in a class-wide settlement of claims.
13.5. Rules and Forum. The Agreement evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Cyborg agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e-mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and otherwise agree, or the Batch Arbitration process discussed in Section 13.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. You and Cyborg agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
13.6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under Section 13.9 is triggered, JAMS will appoint the arbitrator for each batch.
13.7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 13.4, including any claim that all or part of Section 13.4 is unenforceable, illegal, void or voidable, or that Section 13.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 13.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 13.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
13.8. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Cyborg need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
13.9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Cyborg agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Cyborg by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Cyborg. You and Cyborg agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
13.10. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Cyborg Inc., 4 World Trade Center, 150 Greenwich Street, New York, New York, 10006, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.11. Invalidity, Expiration. Except as provided in Section 13.4, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Cyborg as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
13.12. Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Cyborg makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Cyborg at: Cyborg Inc., 4 World Trade Center, 150 Greenwich Street, New York, New York, 10006, your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. Cyborg will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
14.1. Electronic Communications. The communications between you and Cyborg may take place via electronic means, whether you visit any of the Services or send Cyborg e-mails, or whether Cyborg posts notices on the Website or other Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Cyborg in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Cyborg provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
14.2. Notice. Where Cyborg requires that you provide an e-mail address, you are responsible for providing Cyborg with your most current e-mail address. In the event that the last e-mail address you provided to Cyborg is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Cyborg’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice of any changes to your e-mail address to Cyborg at the following address: email@example.com.
14.3. Relationship of Parties. The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties.
14.4. International Users. The Services can be accessed from countries around the world and may contain references to Services and content that are not available in your country. These references do not imply that Cyborg intends to announce such Services or content in your country. Cyborg makes no representations that the Services are appropriate or available for use in your country or any other countries. Those who access or use the Services do so at their own volition and are responsible for compliance with local law.
14.5. Compliance with Export Control Laws. The Services may contain encryption technology controlled under U.S. export law, the export of which may require an export license from the U.S. Commerce Department. You will comply with all applicable export control laws and regulations of the U.S. and other countries. You will defend, indemnify, and hold harmless Cyborg from and against all fines, penalties, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) incurred by Cyborg as a result of your breach of this Section 14.5.
14.6. Assignment. You may not assign or transfer, by operation of law, merger, change of control, or otherwise, any of its rights or delegate any of its duties under this Agreement (including its licenses and rights in connection with the Services) to any third party without Cyborg’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. Cyborg may assign its rights or delegate its obligations under this Agreement.
14.7. Governing Law and Venue. This Agreement will be governed by the laws of the State of New York, excluding any conflict of law provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal or state court located in the State of New York. Each party irrevocably consents to the personal jurisdiction and venue in, and agrees to service of process issued by, any such court.
14.8. Force Majeure. Any delay in or failure of performance by either party under this Agreement, other than a failure to pay amounts when due, will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party, including acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.9. Remedies. Except as expressly provided elsewhere in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. You acknowledge that the Services contains valuable trade secrets and proprietary information of Cyborg, that any actual or threatened breach of Sections 1.2 or 1.3 will constitute immediate, irreparable harm to Cyborg for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
14.10. Waiver; Severability. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
14.11. Construction. The Section headings of this Agreement are for convenience and will not be used to interpret this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
14.12. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter