IN ADDITION, ANY ADDITIONAL POLICIES POSTED OR MADE AVAILABLE BY CYBERCO ON ITS WEBSITE (“POLICIES”) WILL APPLY AND BE DEEMED INCORPORATED HEREIN.
IN THE EVENT THERE IS A SEPARATELY NEGOTIATED AND EXECUTED MASTER AGREEMENT BETWEEN CYBERCO AND CUSTOMER WITH RESPECT TO PROCUREMENT OF THE SERVICES, SUCH AGREEMENT SHALL CONTROL AND THIS AGREEMENT WILL NOT APPLY.1. ACCESS AND RESTRICTIONS.
1.1 Access. Subject to Customer’s compliance with the terms and conditions of this Agreement, Customer has the right to access and use the Services during the term of the applicable Order Document for the purposes of its business operations. Customer is responsible for maintaining the security and confidentiality of its Services login credentials.
1.2 Restrictions. Customer will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services; (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for timesharing or Services bureau purposes or otherwise for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof, or (vi) use the Services to create any other product or Services. Customer will use the Services only in compliance with (i) the Order Document, (ii) the rights granted hereunder, and (iii) in accordance with all applicable laws and regulations. Customer will not post to the Services, or transmit via the Services, any content that is illegal, offensive, or infringes or violates or conflicts with the rights of any third party. Customer grants Cyberco a right and license to use all Customer provided information and data as appropriate for Cyberco to provide the Services.
1.3 Ownership. Except for the rights expressly granted under this Section 1, Cyberco retains all right, title, and interest in and to the Services (and all data, software, products, and other intellectual property created, used, or provided by Cyberco for the purposes of this Agreement). To the extent Customer provides Cyberco with any feedback relating to the Services (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Customer grants Cyberco an irrevocable, perpetual, transferrable, sublicensable, royalty-free, full paid-up right and license to use, reproduce, display, perform, modify, creative derivatives of, distribute, and otherwise fully exploit for any purpose all Feedback.THE TERMS AND CONDITIONS HEREIN (“AGREEMENT”) APPLY TO ANY USE OF, OR ACCESS TO, THE CYBERCO, INC. (“Cyberco”) PLATFORM OR ASSOCIATED PRODUCTS AND SERVICES (COLLECTIVELY, THE “SERVICES”). THE SERVICES WILL BE AS SET FORTH IN A PURCHASE ORDER OR QUOTE EXECUTED BY THE PARTIES, OR AS SET FORTH IN ANY CYBERCO-PROVIDED ONLINE REGISTRATION OR PURCHASE PROCESS (ALL OF THE FOREGOING, REFERRED TO HEREIN AS “ORDER DOCUMENT”.) BY ACCESS OR USING THE SERVICES, YOU AND THE ENTITY OR COMPANY THAT YOU REPRESENT (COLLECTIVELY, "CUSTOMER") IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT.
2. FEES AND PAYMENT.Customer will pay Cyberco the fees for the Services as set forth in the Order Document or, if applicable, on Cyberco’s website (“Fees”). Cyberco reserves the right to modify its fees at any time for any reason upon notice to Customer through posting on Cyberco’s website or notification by email – made at least thirty (30) days prior to the end of the then-current subscription period. Any increase in fees will become effective beginning with the next subscription term. Unless otherwise specified in the Order Document (e.g. for automatic charges to Customer’s Cyberco Pay account), all Fees will be invoiced in advance and all invoices issued under this Agreement are payable in U.S. dollars within fifteen (15) days from date of invoice.
All Fees paid are non-refundable and not subject to set-off; provided that, if fees are paid in advance and this Agreement is terminated for Cyberco’s uncured breach, Cyberco will refund to Customer all fees for the portion of the term after termination.
Unpaid or late invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all (i) taxes associated with Services other than taxes based on Cyberco’s net income, and (ii) Cyberco’s costs of collection in the event of Customer’s delinquent payment (including attorneys’ fees).
3. TERM AND TERMINATION.Subject to earlier termination as provided below, this Agreement shall commence on the Effective Date and continue for the initial subscription period specified in the Order Document; thereafter this Agreement will automatically renew for consecutive periods of equal length (unless otherwise stated on the Order Document) to the initial term (unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the end of the then current period). If no initial subscription period is set forth in an Order Document, the initial subscription period will be one (1) month. Either party may terminate this Agreement in the event the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) from receipt of written notice thereof (provided that, such written notice contains sufficient detail regarding the breach – and expressly states the intent to terminate). Breach notices for Customer’s failure to pay amounts owed – may be delivered via email.Upon termination of this Agreement, all rights granted herein to Customer will terminate and Customer will make no further use of the Services. The following provisions will survive termination of this Agreement: Sections 1.2, 1.3, and 2, 3, and 4 through 10.
4. CONFIDENTIALITY.During the term of this Agreement, each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with confidential information (“Confidential Information”). Cyberco’s Confidential Information includes all pricing related information and the terms and conditions of this Agreement. All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as “Confidential” and all other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, shall be considered Confidential Information; for the avoidance of doubt, the Services and terms of this Agreement and the Order Document are Confidential Information of Cyberco. Receiving Party shall (i) maintain the confidentiality of the Confidential Information, (ii) not disclose such information to any third party without the prior written consent of Disclosing Party, and (iii) only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section 5 shall not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (iii) is disclosed to Receiving Party by a third party without restriction, or (iv) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party shall return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof (but Receiving Party may retain a copy for archival and legal purposes). Cyberco will make available to Customer for download, for a period of ninety (90) days after termination, all of Customer’s documents and data (in a read only format). After such ninety (90) day period, Cyberco shall have no obligation to maintain or provide any such documents and shall thereafter, unless legally prohibited, delete all such documents and data in Cyberco systems or otherwise in Cyberco possession or control (provided that, Cyberco may retain anonymized data and other information).
5. WARRANTY; DISCLAIMER.Cyberco warrants that it will use commercially reasonable efforts to: (i) ensure the Services is available on a 24/7 basis (subject to downtime for matters beyond Cyberco’s control, emergency maintenance, and scheduled maintenance up to 10 hours a month) and (ii) correct all verifiable, material defects in the Services of which Cyberco is aware (all corrections will be in accordance with Cyberco’s standard practices and procedures – including fix queues and release cycles). A “defect” means a failure to comply with any written specification or documentation provided by Cyberco (for clarity, not including marketing materials). Subsection (ii) states Customer’s sole remedy, and Cyberco’s exclusive liability, with respect to any defects in the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, Cyberco DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Cyberco DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
6. LIMITATION OF LIABILITY.NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY, SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (A) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (B) AMOUNTS, IN THE AGGREGATE, THAT EXCEED THE FEES PAID BY CUSTOMER TO CYBERCO DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES (PROVIDED THAT, IF NO FEES ARE PAID, SUCH AMOUNTS SHALL BE LIMITED TO US $100.00). THE FOREGOING LIMITATION ALSO APPLY TO CYBERCO’S INDEMNITY OBLIGATIONS BELOW. IN ADDITION, CYBERCO WILL NOT BE LIABLE FOR ANY ERROR OR INTERRUPTION OF USE, THE LOSS OR INACCURACY OR CORRUPTION OF DATA, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY. THIS SECTION WILL NOT APPLY TO CUSTOMER'S BREACH OF ITS PAYMENT OBLIGATIONS OR INTENTIONAL MISUSE OF THE SERVICES. IN ADDITION, CYBERCO WILL NOT BE LIABLE FOR ANY EMAIL ISSUES, SUCH AS ERRORS, DELWAYS, MISSED, DELETED, OR LATE RECEIVED MESSAGES.
7. INDEMNITY.Customer will indemnify Cyberco from and against all claims, actions, demands, losses, damages, penalties, costs and expenses (including attorneys' fees) arising from or in connection with (i) Customer’s breach of this Agreement or misuse of the Services, (ii) any data or other information provided or managed by Customer using the Services (including, without limitation, any data or information of any third party customers or partners of Customer), (iii) the acts and omission of any third party that Customer provides with access to the Services.
8. FORCE MAJEURE.Cyberco shall not be liable to Customer for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of Cyberco, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency, or other licensing, certification, standards, or approval organization.
9. MARK USAGE.Customer agrees that Cyberco may, during the term of this Agreement and for a reasonably wind-down thereafter, use Customer’s name and logo on Cyberco’s website and in Cyberco's promotional materials as part of a general list of customers – or individually as part of a case study.
10. MISCELLANEOUS.The parties will comply with all terms and conditions set forth in the Order Document. To the extent an Order Document conflicts with this Agreement, the Order Document will control. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by a party except with the other party’s prior written consent; provided that, a party may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all of its assets or business to which this Agreement relates. This Agreement (including the Order Document) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Any additional or different terms or conditions provided by Customer (such as any additional, boilerplate terms in a Customer-issued purchase order) will not apply (even if accepted by, or performed on by, Cyberco. No agency, partnership, joint venture, or employment is created as a result of this Agreement. Any notices in connection with this Agreement will be via email. Customer’s email address will be as provided by Customer in an Ordering Document or during the Services registration process. Cyberco’s email address is email@example.com. Notwithstanding the foregoing, any legal notice sent by Customer to Cyberco must also be sent by certified mail to 1405 S Fern St. #99100 Arlington, VA 22202 Attn: Legal (legal notices will only be deemed effective when physically received by Cyberco – regardless of earlier receipt of email). This Agreement shall be governed by the laws of the State of Delaware, without regard to the conflict of law provisions thereof. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”). To the extent the JAMS Streamlined Arbitration Rules & Procedures are available, they will be used. The arbitration shall take place in Dover, Delaware, USA, in the English language and the arbitral decision may be enforced in any court. If a claim cannot legally be arbitrated (as determined by an arbitrator), it will be subject to the exclusive jurisdiction of the courts located in Dover, Delaware. Notwithstanding the foregoing, Cyberco may elect, in its sole discretion, to pursue delinquent payments in any court.