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Terms of Service
Last updated: February 1, 2020
These Terms of Service (“Terms”) govern your access to and use of the application, website, products, and services (“Services”) provided by CyRisk LLC (“CyRisk”, “we”, “us”, or “our”). You hereby agree to be bound by the latest amended versions of these Terms and CyRisk’s Privacy & Security Policy (see “Modifications” below).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST CYRISK ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Section 1: Accepting the Terms
By your affirmative assent you have agreed to be bound by the terms of this Agreement. References to “you” or “your” in these Terms of Service means you, your duly authorized representatives, and any entity you may represent in connection with your use of the Services. Any reference made in these Terms of Service to “CyRisk” shall be deemed to have been made to CyRisk LLC, its subsidiaries, successors, assignees, and affiliates, as well as any company that controls CyRisk, directly or indirectly, and any other subsidiary of that controlling company.
By accessing or using our Services, you confirm that:
you can form a binding contract with us; and
you are over the age of 18, as the Services are not intended for children under 18.
If it comes to our attention through reliable means that a registered user is a child under 18 years of age, we will cancel that user’s account and/or access to the Services. If you are using the Services on behalf of a corporation (or any legal entity other than using it personally), you represent that you are authorized to enter into an agreement on behalf of that legal entity, and are nevertheless individually bound by these Terms even if we have a separate agreement with such corporation.
Not all of the products or services described on this website are available in all areas of the United States and you may not be eligible for them. We reserve the right to determine eligibility. By accessing or using our Services, you agree to be bound by these Terms and by our Privacy & Security Policy. If you do not agree to these Terms or the Privacy & Security Policy, please do not access or otherwise use our Services or any information contained herein.
DO NOT RELY on our Services, including our website and app (collectively, “the App”), for your financial decisions. The content provided within the CyRisk Services, including the App, and other content is for convenience and information purposes only. Nothing therein should be construed as rendering tax, legal, investment, or accounting advice. The posting of any prospectus or any other information is not a recommendation or opinion for you to buy or sell any product or participate in any transaction.
Section 2: Copyrights
All content included within the App, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, as well as the compilation of that content into one, coherent website, is the property of CyRisk and protected by United States and international copyright laws. Reproduction of the content of the Services without the written permission of CyRisk is prohibited.
Section 3: Trademarks and Service marks
CyRisk®, the CyRisk logo, and other CyRisk graphics, logos, page headers, button icons, scripts, and service names are trademarks, certification marks, service marks, or other trade dress of CyRisk or its subsidiaries. CyRisk’s trademarks, certification marks, service marks, and trade dress have inherent meaning and substantial value because of their restricted use. They may not be used in connection with any product or service that is not CyRisk’s, or in any manner without CyRisk’s permission. All other trademarks not owned by CyRisk or its subsidiaries that appear on the App are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by CyRisk or its subsidiaries.
Section 4: License to Access the Services
Subject to these Terms and our policies (including policies made available to you within the Services), we grant you a limited, non-transferable, non-exclusive, and revocable permission to access and use our Services.
Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access (other than your User Content), which shall remain with us and our respective licensors. Any unauthorized use automatically terminates the permission or license granted by CyRisk and may incur legal liabilities for any damages.
Section 5: Accounts and Passwords
In order to access some or all of the Services, you will have to create an account. You hereby represent and warrant that the information you provide to CyRisk upon registration (including information provided through your linked Google or Facebook account, as applicable, or other 3rd party Linked Accounts, as defined below), and at all other times, will be true, accurate, current, and complete. Your “Account Information” also includes any information you provide to us during the insurance application or claims process. You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.
If you are issued an account, you are responsible for maintaining the confidentiality of your account and password, and you agree to accept responsibility for all activities that occur under your account or password. Unauthorized access or use of such portions of the Services that require an account and password is prohibited. You agree that you will notify CyRisk immediately if you believe that a 3rd party has obtained your User ID or password, or if you believe that any unauthorized access or use may occur or has occurred by contacting our Support team. CyRisk reserves the right to, under its sole discretion, refuse service, suspend or terminate accounts, or otherwise restrict access to the Services.
Section 6: Paid Services, Fees, Payments, and Billing
a. Paid Services.
In consideration for the applicable Paid Service, Paying Customers shall pay fees in the amounts and at the times specified by CyRisk upon setting up Paying Customers’ Accounts. Please note that any payment terms presented to Paying Customers in the process of using or signing up for Paid Services are deemed part of this Agreement.
b. Payment Terms.
Payments shall be made in US dollars. Past due amounts which are not subject to a good faith dispute shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. Paying Customers agree to reimburse CyRisk for all costs (including attorneys’ fees) incurred by CyRisk in collecting late payments. In addition to its other rights and remedies, CyRisk may, at its option, suspend Paying Customers’ access to the Service or terminate this Agreement in the event that a Paying Customer is not current in the payment of fees owed to CyRisk.
All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Paying Customers agree to bear and be responsible for the payment of all such charges, excluding taxes based upon CyRisk’ net income. All amounts payable by Paying Customers hereunder, including without limitation, all fees for the applicable Paid Service, shall be grossed-up for any withholding taxes imposed by any foreign government on Paying Customers’ payment of such amounts to CyRisk.
CyRisk uses a third-party payment processor (the “Payment Processor”) to bill Paying Customers through a payment account linked to the Paying Customer’s Account (“Billing Account”) for use of the applicable Paid Service. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. CyRisk is not responsible for error by the Payment Processor. By choosing to use the applicable Paid Service, Paying Customers agree to pay CyRisk, through the Payment Processor, all charges at the prices then in effect for any use of the applicable Paid Service in accordance with the applicable payment terms and Paying Customers authorize CyRisk, through the Payment Processor, to charge the Paying Customer’s chosen payment provider (“Payment Method”). Paying Customers agree to make payment using that selected Payment Method. CyRisk reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
e. Payment Method.
The terms of Paying Customers’ payment will be based on the chosen Payment Method and may be determined by agreements between the Paying Customer and the financial institution, credit card issuer or other provider of the chosen Payment Method. If CyRisk, through the Payment Processor, does not receive payment from a Paying Customer, such Paying Customer agrees to pay all amounts due on the Billing Account upon demand.
f. Recurring Billing.
By choosing a recurring payment plan, Paying Customers acknowledge that the applicable Paid Service has an initial and recurring payment feature and Paying Customers accept responsibility for all recurring charges prior to cancellation. CYRISK MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM PAYING CUSTOMERS, UNTIL A PAYING CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY CYRISK) THAT SUCH PAYING CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE CYRISK REASONABLY COULD ACT. TO TERMINATE AUTHORIZATION OR CHANGE PAYMENT METHOD, GO TO YOUR ACCOUNT SETTINGS ON THE SITE.
g. Current Information Required.
PAYING CUSTOMERS MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR THE BILLING ACCOUNT. PAYING CUSTOMERS MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP THE BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND PAYING CUSTOMERS MUST PROMPTLY NOTIFY CYRISK OR CYRISK’ PAYMENT PROCESSOR IF THE CHOSEN PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF A PAYING CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF THE PAYING CUSTOMER’S ACCOUNT CREDENTIALS. CHANGES TO SUCH INFORMATION CAN BE MADE UNDER CUSTOMER’S ACCOUNT SETTINGS ON THE SITE. IF A PAYING CUSTOMER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, SUCH CUSTOMER AGREES THAT CyRisk MAY CONTINUE CHARGING SUCH CUSTOMER FOR ANY USE OF PAID SERVICES UNDER THE BILLING ACCOUNT UNLESS SUCH CUSTOMER HAS TERMINATED THE APPLICABLE PAID SERVICE AS SET FORTH ABOVE.
h. Change in Amount Authorized.
If the amount to be charged to the Billing Account varies from the amount preauthorized (other than due to the imposition of or change in the amount of state sales taxes), Paying Customers have the right to receive, and CyRisk shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Customers agrees to accept delivery of such notice via email at the email address provided during account registration. Any agreement a Paying Customer has with the Payment Processor will govern such Paying Customer’s use of the Payment Method. Paying Customers agree that CyRisk may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
i. Auto-Renewal for Paid Services.
Unless a Paying Customer opts out of auto-renewal, the applicable Paid Service will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If a Paying Customer terminates the applicable Paid Service, such Customer may use its subscription until the end of its then- current subscription term; such Customer’s subscription will not be renewed after the then-current subscription term expires. However, such Customer won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
j. Reaffirmation of Authorization.
Paying Customers’ non-termination or continued use of the applicable Paid Service reaffirms that CyRisk is authorized to charge the chosen Payment Method for the applicable Paid Service. CyRisk may submit those charges for payment and the Paying Customer will be responsible for such charges. This does not waive CyRisk’ right to seek payment directly from the Paying Customer. Paying Customers’ charges may be payable in advance, in arrears, per usage, or as otherwise described when Customer initially selected to use the applicable Paid Service. In order to purchase an insurance policy through the Services, you may be required to provide CyRisk with information regarding your bank account, credit card, or other payment instrument. You represent and warrant to CyRisk that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay CyRisk the insurance premium amount for the insurance policy you have selected in accordance with the terms of such policy and this Terms of Service. You hereby authorize CyRisk to bill your payment instrument in advance on a periodic basis in accordance with the terms of the insurance policy you have purchased. If you dispute any charges you must let CyRisk know within sixty (60) days after the date that CyRisk charges you. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on CyRisk’s net income.
Section 7: Open Source Software
Certain software code incorporated into or distributed with the App or otherwise with the Services may be licensed by 3rd parties under various “open-source” or “public-source” software licenses (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in these Terms, the Open Source Software is not licensed under these Terms and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
Section 8: 3rd Party Apps
CyRisk’s Services allow you to install or utilize certain 3rd party apps (“3rd Party Apps”). These 3rd Party Apps are provided “AS IS” and governed by their own terms of service and privacy policies as set forth by the 3rd parties that provide them. CyRisk does not endorse and is not responsible or liable for the services of features provided by these 3rd Party Apps you choose to utilize. You acknowledge and agree that CyRisk shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use or reliance on any 3rd Party Apps.
Section 9: Linked Accounts and Social Networking Sites
CyRisk may, now or in the future, allow you to link your account on the App to your account(s) on 3rd party services, such as social networking sites (“Linked Accounts”). If you link your account on the App to a Linked Account, you are authorizing CyRisk to store and use your access credentials to access your Linked Account on your behalf as your agent to integrate your experience with the App with content, information, and features available through such Linked Account. This may include importing the contacts, preferences, interests or “likes” of the Linked Account, and/or pushing updates regarding your use of the Services out to your Linked Accounts. Linking, accessing, or using a 3rd party service through the App in this manner may be subject to additional terms established by the applicable 3rd party, and it is your sole responsibility to comply with such 3rd party terms.
Section 12: Underwriting and Web Scan
By utilizing the Services, you certify that you are authorized to act on behalf of the owner or licensee of, or are the authorized representative of an individual, business, or other legal entity having contractual usage rights granted by an ISP or Web Host owning or licensed to use, any and all Internet Protocol addresses (the “IPs”) and the associated computer hardware, network, storage, input/output or electronic control devices, or software installed on such devices (the “Devices”) to which you direct Services to be performed.
You hereby authorize CyRisk to perform “Web Scans,” as more fully described below, on any devices and domains specified in CyRisk’s underwriting application.
CyRisk’s “Web Scans” are conducted to ascertain the compliance of network devices and applications with certain published security standards and to disclose security vulnerabilities that may be present. Security audits may be performed with the assistance of CyRisk employees or its appointed contractors, and may from time to time include additional probing and validation beyond the scope of CyRisk’s automated scanning system. In certain cases, the exploitation of a vulnerability and/or minimal extraction of data from the target server may be conducted to support CyRisk’s security audit findings, or to illustrate a vulnerability to you. Security audits typically include, but are not limited to, port scanning and port connections, evaluating services by checking versions and responses to certain requests, and crawling websites to perform testing of forms, application responses, or to confirm the existence of certain files.
Section 14: User Content
The App may request that you submit content such as text, photos, audiovisual content, and other media content (“User Content”). By providing User Content to CyRisk, you are granting CyRisk a license to use the User Content in order to make it available through the App.
License Grant By You To CyRisk
By uploading content, you are granting CyRisk a license to display, perform, and distribute your User Content, and to modify (for technical purposes) and reproduce such User Content to enable CyRisk to operate the Services. You agree that these rights and licenses are royalty free, worldwide, and irrevocable, and include a right for CyRisk to make such User Content available to, and pass these rights along to, others with whom CyRisk has contractual relationships related to the provision of the CyRisk Services, solely for the purpose of providing such Services, and to otherwise permit access to or disclose your User Content to 3rd parties if CyRisk determines such access is necessary to comply with its legal obligations. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish User Content you submit and to further grant the rights and licenses to CyRisk as provided herein.
Submitted Ideas Policy
When you submit any ideas, suggestions, documents, and/or proposals relating to the Services (or other products or services) to CyRisk through the “Contact Us”, User Forum, or Support interfaces or through any other channel or mechanism (collectively, “Contributions”), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) CyRisk is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) CyRisk shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) CyRisk may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become the property of CyRisk without any obligation of CyRisk to you; and (vi) you are not entitled to any accounting, compensation, or reimbursement of any kind from CyRisk under any circumstances.
Section 15: Unauthorized Use
Do not misuse our Services. You agree not to use the Services or any aspect or feature thereof for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the proceeding sentence, you agree that you will: (i) review and comply with these Terms and the Privacy & Security Policy; (ii) comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, export control laws, tax laws, regulatory requirements, and international sanctions (including by OFAC, HMT, EU UN, etc.); (iii) provide accurate information to us and update it as necessary; and (iv) act honestly and in good faith.
If you reside in the European Economic Area (EEA) or if any transfer of information between you and the Company Website is governed by the General Data Protection Regulation (Regulation 2016/679), then you consent to the transfer of such information outside of the EEA to such other countries as may be contemplated by the features and activities provided by CyRisk.
You hereby agree NOT to: (i) create an account for anyone other than a natural person (unless you are a company, organization, legal entity, or a brand and represent that company, organization, legal entity, or brand); (ii) defame, stalk, bully, abuse, threaten, harass, abuse, intimidate, harm another person, or engage in any other predatory behavior, including sending unwelcomed communications to others or engage in any other predatory behavior, or incite others to commit violent acts; (iii) use or attempt to use another’s account or create a false identity; (iv) duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information found in the Services, except as permitted in these Terms, or as expressly authorized by us; (v) reverse engineer, decompile, disassemble, decipher, or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof; (vi) utilize or copy information, content, or any data you view on or obtain from the Services to provide any service that is competitive, in our sole discretion, with the Services; (vii) adapt, modify, or create derivative works based on the Services or technology underlying the Services, in whole or part; (viii) rent, lease, loan, trade, or sell/re-sell any information in the Services, in whole or part; (ix) use the communication systems provided by the Services for any commercial solicitation purposes, including to send unsolicited or unauthorized advertisements, spam, or chain letters; (x) sell, sponsor, or otherwise monetize any service or functionality in the Services, without our express written consent; (xi) remove any copyright, trademark, or other proprietary rights notices contained in or on the Services (whether ours or our licensors’); (xii) remove, cover, or otherwise obscure any form of advertisement included on the Services; (xiii) collect, harvest, use, copy, or transfer any information, including, but not limited to, personally identifiable information obtained from the Services (excluding your User Content, and except if the owner of such information has expressly permitted the same); (xiv) share other users’ or 3rd party’s information or their User Content without their express consent; (xv) infringe or use our brand, logos, or trademarks in any business name, email, or URL except as expressly permitted by us; (xvi) use or launch any manual or automated system or software, devices, scripts robots, other means, or processes to access, “scrape”, “crawl”, “cache”, or “spider” any web page or other service contained in our Services, or to access the Services in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; (xvii) use bots or other automated methods to access the Services, add or download contacts, send or redirect messages, or perform other similar activities through the Services; (xviii) access, via automated or manual means or processes, the Services for purposes of monitoring its availability, performance, or functionality for any competitive purpose; (xix) engage in “framing”, “mirroring”, or otherwise simulating the appearance or function of the website; (xx) attempt to or actually access the Services by any means other than through the interfaces provided by us. This prohibition includes accessing or attempting to access the Services using any 3rd party service, including software-as-a-service platforms that aggregate access to multiple services; (xxii) engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on the Services’ infrastructure, including, but not limited to, sending unsolicited communications to other users or our personnel, attempting to gain unauthorized access to the Services, or transmitting or activating computer viruses, Trojan horses, worms, time bombs, or any other harmful or deleterious software programs through or on the Services; and/or (xxiii) interfere, disrupt, or game the Services, including, but not limited to any servers or networks connected to the Services, or the underlying software.
Section 16: Investigation
CyRisk reserves the right to investigate you, your business, and/or your owner’s, officers, directors, managers, and other principals, your sites, and the materials comprising the sites at any time and as reasonably necessary to provide our Services to you. These investigations will be conducted solely for CyRisk’s benefit, and not for your benefit or that of any 3rd party. If the investigation reveals any information, act, or omission, which in CyRisk’s sole opinion, constitutes a violation of any local, state, federal, or foreign law or regulation, these Terms, or is otherwise deemed to harm the Services, CyRisk may immediately shut down your access to the Services. You agree to waive any cause of action or claim you may have against CyRisk for such action.
Section 17: Right to Rely on Instructions
CyRisk may act in reliance upon any instruction, information, document, filing, name, email address or user password that meets our automated criteria or which is believed by the CyRisk’s personnel to be genuine. For any password protected areas, CyRisk may assume a person entering a user name address and associated password is, in fact, that user or is authorized by that user to act on its behalf. CyRisk may assume the latest email addresses and registration information on file with the Services are accurate and current. When programmed to do so, the Services may take prescribed actions in the absence of receiving proper and complete contrary instructions.
Section 18: Disclosure
We reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request; (ii) enforce these Terms, including investigation of potential violations of it; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) cooperate with law enforcement authorities; (v) respond to user support requests; or (vi) protect our, our users’, or the public’s rights, property, or safety.
Section 19: Indemnity
You agree to defend, indemnify, and hold harmless us, our affiliates, and our and their respective owners, officers, directors, employees, agents, and/or licensors, from and against any and all claims, damages, obligations, losses, liabilities, costs, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of the Services; (ii) your violation of these Terms; and (iii) your violation of any 3rd party right, including without limitation any copyright, property, publicity, or privacy right; including all actions taken under your account. This defense, hold harmless and indemnification obligation will survive any termination of these Terms and your use of the Services.
Section 20: Force Majeure
Section 21: Disclaimer of Warranties and Limitation of Liability
To the maximum extent permitted by law, the Service is Available “As Is.” YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (a) YOUR USE OF THE SERVICE AND THE PURCHASE AND USE OF ANY PRODUCTS OR SERVICES ARE ALL AT YOUR SOLE RISK. THE SERVICE IS PROVIDED AND PRODUCTS ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CYRISK EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. (b) CYRISK DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED. (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CYRISK OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT CYRISK WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF CYRISK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY 3RD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL CYRISK’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID CYRISK IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Section 22: Exclusions and Limitations
Section 23: Termination
CyRisk’s policy is to investigate violations of these Terms and terminate repeat infringers. You agree that CyRisk may, under certain circumstances and without prior notice, immediately terminate your CyRisk account, any associated email address, and access to the App and associated Services. Cause for such termination shall include, but not be limited to: (a) breaches or violations of the Terms or other incorporated agreements or guidelines; (b) requests by law enforcement or other government agencies; (c) a request by you (self-initiated account deletions); (d) discontinuance or material modification to the Services (or any part thereof); (e) unexpected technical or security issues or problems; (f) extended periods of inactivity; (g) you have engaged or are reasonably suspected to be engaged in fraudulent or illegal activities; (h) having provided false information as part of your account; (i) having failed to keep your account complete, true, and accurate; (j) any use of the Services deemed at CyRisk’s sole discretion to be prohibited; (k) use of fraudulent payment methods; and/or (l) nonpayment of any fees owed by you in connection with the App and associated Services. Further, you agree that all terminations for cause shall be made in CyRisk’s sole discretion and that CyRisk shall not be liable to you or any 3rd party for any termination of your account, access to the Service, or any disruption to your services such a termination may cause. You expressly agree that in the case of a termination for cause you will not have any opportunity to cure. You further acknowledge and agree that notwithstanding any termination, your obligations to CyRisk set forth in Sections 2, 3, 4, 15, 16, 18, 19, 21, 22, 23, 27, 31, 32, and 33 shall survive such termination.
Section 24: Modifications
We reserve the right, at our discretion, to modify these Terms from time to time, which modification will be effective upon the posting of the modification to our App, and will apply to causes of action arising after the effective date of the change. You should continue to check the App for changes. Your continued use of our App or otherwise the Services following the posting of changes to these Terms will mean that you accept those changes.
Section 25: 3rd Parties’ Links, Websites, and Services
The App may contain links to 3rd party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by us. We are not affiliated with those websites, do not endorse them, have no control over those websites, and assume no responsibility and/or liability for the content, privacy policies, or practices of any 3rd party websites. In addition, we will not and cannot censor or edit the content of any 3rd party site.
Section 27: Publicity
Unless you expressly provide us with written notice to the contrary, CyRisk shall be permitted to identify you as a customer, to use your website’s name in connection with proposals to prospective customers, to hyperlink to your website’s homepage, to display your logo on the CyRisk website, and to otherwise refer to you in print or electronic form for marketing or reference purposes. You may contact us at help@CyRisk.com to request references, logos, or hyperlinks to your website be removed. We will comply with such requests in our reasonable discretion.
Section 28: Assignment
CyRisk reserves the right, in its sole and absolute discretion, to transfer, assign, sublicense, or pledge in any manner whatsoever, any of its rights and obligations under these Terms to a subsidiary, affiliate, successor thereof, or to any 3rd party whatsoever, without notifying you or receiving your consent. You shall not, by operation of law or otherwise, transfer, assign, delegate, sublicense, nor pledge in any manner whatsoever, any of your rights or obligations under these Terms.
Section 29: Waiver and Severability of Terms
We reserve the right to discontinue or modify any aspect of the Services at any time. These Terms, together with the Privacy & Security Policy, and any other legal notices published by us on the Services, shall constitute the entire agreement between us concerning the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements that may conflict with or purport to modify any aspect of this agreement. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Section 30: Governing Law and Jurisdiction
These Terms and your use of the App and Services are governed in all respects by the laws of the New York, without giving effect to any principles of conflicts of laws. Any dispute concerning the App or these Terms shall be subject to the exclusive venue of a court of competent jurisdiction in Manhattan, New York.
Section 31: Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and CyRisk, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), our services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and CyRisk are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND CYRISK AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND CYRISK AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
CyRisk is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at help@CyRisk.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to CyRisk should be sent to CyRisk, Inc., 1160 Battery St., Ste 350, San Francisco, CA 94111 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If CyRisk and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or CyRisk may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by CyRisk or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or CyRisk is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org . Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration . If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless CyRisk and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, CyRisk agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, CyRisk will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, CyRisk will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, CyRisk will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless subsection (b) above is deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, CyRisk agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Platform, you may reject any such change by sending CyRisk written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
Section 32: Electronic Communication
You hereby agree to have all records, including the insurance policy, provided to you in electronic form. This consent, unless withdrawn, applies to all transactions between you and CyRisk. However, you have the right to receive communications from us, including the insurance policy, in paper form if you wish by withdrawing this consent. If you withdraw the consent to provide you with records in electronic form, you will then be provided with records in paper form. To withdraw your consent, you must email us at help@CyRisk.com with the following subject line: “WITHDRAW ELECTRONIC CONSENT.” The body of the email must include your name, policy number, effective and expiration dates of the policy, the effective date of your withdrawal, and whether you want (a) all communications to be in paper form and (b) your insurance policy to be sent to you in paper form.
Section 33: Versions
The authoritative version of CyRisk’s Term of Service is available at: www.CyRisk.com/legal/terms. While translations of these terms may be provided in multiple languages for your convenience, the English language version hosted at the link above is binding for all users of the App, and the CyRisk Services.
Section 34: Headings
The headings and captions used in these Terms of Services are inserted for convenience only and will not affect the meaning or interpretation of these Terms of Service.
Section 35: Notice for California Users
Under California Civil Code Section 1789.3, California users of the Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.
Section 36: How to Contact Us
The Services are controlled and operated by CyRisk LLC located at:
PO Box 42