EFFECTIVE DATE: SEPTEMBER 3, 2020
1. Welcome
These terms and conditions, together with our Privacy Policy and DMCA Notice, both of which are incorporated herein by reference (collectively, these “Terms” or this “Agreement”), constitute an agreement between you and Cynergy, the operator of cynergy.app (the “Site”), and related services, websites, applications and mobile applications provided by Cynergy on or in which these Terms are posted or referenced (collectively, the “Services”). These Terms govern your access to and use of the Services, whether or not you have created a Cynergy account. The terms “you”, “your”, “yours” or “user” refer to the user of the Services. The terms “Cynergy”, “we”, “us” or “our” refer to Cynergy Cybersecurity 2019 Ltd. together with our related, affiliated and/or subsidiary companies. BY BROWSING, ACCESSING AND/OR USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND WILL ABIDE BY THE TERMS AS SET FORTH HEREIN AND THAT YOU ARE AT LEAST 13 YEARS OLD. YOUR USE OF THE SERVICES CONSTITUTES YOUR AGREEMENT TO OUR PRIVACY POLICY WHICH INCLUDES CHILDREN’S ONLINE PRIVACY PROTECTION ACT PROVISIONS. IF YOU CREATE AN ACCOUNT OR USE THE SERVICES ON BEHALF OF AN INDIVIDUAL OR ENTITY OTHER THAN YOURSELF, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THESE TERMS ON SUCH INDIVIDUAL’S OR ENTITY’S BEHALF. YOU MUST PERIODICALLY REVIEW THESE TERMS AS WE MAY MODIFY SUCH FROM TIME TO TIME. IF AT ANY TIME YOU CHOOSE NOT TO ACCEPT THESE TERMS, INCLUDING FOLLOWING ANY SUCH MODIFICATIONS, THEN YOU MUST STOP USING THE SERVICES. YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE LAWSUIT OR ARBITRATION. AS FURTHER PROVIDED BELOW, WE OFFER THE SERVICES “AS IS” AND WITHOUT WARRANTIES. YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY THE AGREEMENT. IF YOU ARE UNSURE ABOUT ANY PROVISION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING THE SERVICES. IF YOU DO NOT AGREE WITH THESE TERMS THEN YOU ARE NOT PERMITTED TO ACCESS OR USE THE SERVICES. NOTE: Certain Cynergy corporate customers have additional terms that will further govern their use of certain Services.
2. Your Personal Information
By your accessing and/or using the Services, we will collect information “Personal Information” about you as further defined below and in accordance with our Privacy Policy. If you do not want us to have your Personal Information, do not use the Services. Your Personal Information includes, but is not limited to your (i) name, (ii) contact details including mobile phone number, email, mailing, billing and business addresses, phone and fax numbers, (iii) choose to provide to Cynergy, (iv) other data that can be used to personally identify or contact you. In connection with providing you with Services, you understand and agree that we may use and disclose your Personal Information to your selected cybersecurity providers. YOU HEREBY EXPRESSLY AUTHORIZE CYNERGY, ITS EMPLOYEES, AGENTS, AND OTHERS OPERATING ON ITS BEHALF TO USE, STORE, DISCLOSE, COLLECT, RETAIN, RECEIVE, ANALYZE AND OBTAIN YOUR PERSONAL INFORMATION INCLUDING FINANCIAL INFORMATION AS PERMITTED HEREUNDER INCLUDING TO YOUR SELECTED CYBERSECURITY PROVIDERS.
3. The Services
The Services organize and make available selected information, including cybersecurity provider profiles, objective and subjective ratings, feedback, comments and opinions, indexes, scorecards, materials, and third-party data, to help you make informed choices in your search to independently assess particular cybersecurity providers. Such information is compiled from a variety of sources then processed using various empirical and proprietary algorithms and processes. ALL INFORMATION CONTAINED ON THE SITE, OR MADE AVAILABLE VIA THE SERVICES, INCLUDING INFORMATION RELATING TO PROVIDERS, CYBER RISK, OTHER USER’S OPINIONS, IS FOR GENERAL INFORMATIONAL PURPOSES ONLY. Information provided via the Services (i) should not be considered complete and is not intended to be used in place of a call, consultation, or advice of a cybersecurity provider; (ii) is not intended to provide cybersecurity advice for any specific cyber risk you may have; (iii) should not be construed as a recommendation or endorsement of a particular cybersecurity service provider as such information may consist of statements of opinion and not statements of fact. We encourage you to independently verify all information so that you may make an informed decision prior to utilizing any specific cybersecurity provider. You assume all responsibility in connection with choosing any cybersecurity provider, whether or not you obtained information about such cybersecurity provider via the Services. By using the Services, you specifically acknowledge and agree that we are not responsible for or liable in any advice, treatment, or other services rendered by any cybersecurity provider, or for any claims (malpractice or otherwise) that may arise directly or indirectly from any such advice, or other services. For the avoidance of doubt, the cybersecurity provider is responsible for the appropriateness and quality of the services they provide. If you have chosen to receive notifications from Cynergy, we may call you and/or send you emails and/or text messages which will provide you with important information and/or suggestions, based on your information. Procedures, products, devices and services presented, discussed, and/or marketed via the Services, either paid or unpaid, are not applicable to all individuals and do not imply risk or appropriateness of consultation or advice. The Services also allow you to book tests, consultations, and assessments with cybersecurity providers you select. Once you complete booking your engagement with your selected cybersecurity provider using the Services, we will send you a confirmation email and/or a text message with the details of your test to the email address and/or the mobile phone number you provided. When you book your project, you hereby agree to execute such a project and agree and acknowledge that the cancellation and no-show policies of the applicable cybersecurity provider shall apply. Cybersecurity providers are responsible for maintaining their own schedules. Cynergy has no control over and cannot guarantee the availability of any cybersecurity provider and are not liable in any way for canceled or otherwise unfulfilled appointments. By scheduling a project with a cybersecurity provider you hereby agree to execute your scheduled project. CYNERGY PROVIDES CYBERSECURITY ADVICE. THE SERVICES DO NOT INVOLVE PROVISION OF CYBERSECURITY ADVICE. IF YOU ARE EXPERIENCING A CYBERSECURITY EMERGENCY, YOU SHOULD CONTACT INCIDENT RESPONSE MANAGED SERVICES, SUCH AS CILYNX. NO VENDOR/PROVIDER RELATIONSHIP IS CREATED BY USING INFORMATION PROVIDED BY US OR THROUGH THE USE OF THE SERVICES OR THROUGH ANY OTHER COMMUNICATIONS FROM CYNERGY INCLUDING, BUT NOT LIMITED TO LINKS TO OTHER SITES (“Third-Party Sites”). WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROFESSIONAL QUALIFICATIONS, EDUCATION, EXPERIENCE, OR EXPERTISE OF ANY CYBERSECURITY PROVIDER. FURTHERMORE, CYNERGY DOES NOT IN ANY WAY ENDORSE OR RECOMMEND ANY INDIVIDUAL OR ANY PARTICULAR CYBERSECURITY PROVIDER LISTED ON OR ACCESSIBLE THROUGH USE OF THE SERVICES. YOU ARE ULTIMATELY RESPONSIBLE FOR CHOOSING YOUR OWN CYBERSECURITY PROVIDER. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ANY INFORMATION PROVIDED THROUGH USE OF THE SERVICES. We may from time to time add new products and services to the Services, substitute a new service for one of the existing Services, or discontinue or suspend one of the existing Services. You agree that Cynergy will not be liable to you or any third-party for any suspension or discontinuation of any of the Services. The timeliness, accuracy, and completeness of the information provided via the Services is not guaranteed. Though we may review certain of the information posted, we have no obligation to do so. It is solely your responsibility to independently verify the information provided.
4. Acceptable Use Policy
We reserve the right to view, monitor, record, and disclose activity in relation to the use of the Site and the Services; however, we are not responsible for screening, policing, editing, or monitoring the Services. The Services are administered in Israel and are intended for all users. If you choose to access the Services from locations outside of the U.S., you do so at your own risk, of your own volition, and are responsible for compliance with all applicable laws without limitation, export and import laws. IF YOU ACCESS THE SERVICES OUTSIDE OF THE U.S., YOU CONSENT TO HAVING YOUR PERSONAL INFORMATION TRANSFERRED TO AND PROCESSED IN THE U.S. Without limiting any other provision in this Agreement, you understand, agree, represent, and warrant that:
(i) you will only access and use the Services, and all information contained therein, in compliance with all applicable laws or regulations and, as intended by Cynergy in its sole discretion, only for your personal, non-commercial evaluation and selection of cybersecurity providers and the booking of your appointment, as further provided below, with your selected cybersecurity provider,
(ii) you will not, directly or indirectly access or use the Services, or any information contained therein: (a) to attempt to access or access another user’s Personal Information, (b) for any commercial purposes including compiling mailing lists or other lists of cybersecurity providers, (c) to build, maintain, update or establish independent data files or otherwise amass statistical information thereof or therefrom, (d) to publish or distribute in any medium or manner any of the information contained therein,
(iii) you will not attempt to elude, circumvent, disable, damage, or otherwise interfere with the Services’ security-related features or attempt to gain access to the Services, or user information, in an unauthorized or fraudulent manner including hacking, password mining, using any technology to mask, confuse, cover-up or distort the internet protocol address from which you are accessing the Services or provide false information when registering. Additionally, you will not use any robot, spider, site search/retrieval application, or another automated device, process, or means to access, scrape, or index any portion of the Services. Further, you will not take any action which in Cynergy’s sole discretion, places an unreasonable or disproportionately strain on the technology infrastructure or otherwise make excessive traffic demands on the Services. Additionally, you will not upload or submit information containing viruses or any computer code, corrupt files or programs engineered or intended to disrupt or destroy the functionality of any software or hardware utilized by Cynergy,
(iv) you will not use the Services, directly or indirectly, to engage in any anti-competitive, deceptive or unfair practices, or otherwise violate applicable antitrust, competition or consumer protection laws, or regulations including but not limited to, impacting or fixing prices charged or availability of cybersecurity providers.
(v) you will not use the Services other than for your personal, non-commercial use only.
(vi) you may not use the Services if you are under the age of 13 years old. Individuals who have a legal guardian or are between the ages of 13 and 18 may use the Services provided a parent or legal guardian represents and warrants that such parent or legal guardian has the authority to enter into these Terms on that individual’s behalf and that individual shall use the Services only under the supervision of the parent or guardian who entered into these Terms on that individual’s behalf.
5. Cynergy Ownership ———
All rights, title and interest in and to the Services, and any intellectual property rights therein, including without limitation, object code, all source code, rating system, methodology, various empirical and proprietary algorithms and processes, operating instructions, the underlying technology or software used in connection with the Services, and interfaces developed for or relating to the Services, and all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, improvements and derivative works of the foregoing are valuable intellectual property owned or licensed to Cynergy. You have no rights in or to any of the foregoing and no proprietary rights are being transferred to you under this Agreement. Information made available via the Services is owned by Cynergy or our licensors and is protected by copyright, trademark, patent, trade secret laws, other proprietary rights or international treaties.
6. Feedback
Should you share with us any ideas, suggestions, reviews, ratings, opinions, patient surveys, compliments, complaints, documents, proposals and other information related to the cybersecurity providers, our business or our Services (“Feedback”), you expressly agree and hereby irrevocably grant us, without any compensation, a world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable rights to use such Feedback for any purpose including publicly displaying, publishing, using for marketing or commercial purposes, distributing, reformatting, modifying, incorporating with other works, creating derivative works, product or advertising ideas, promoting and allowing others to do the same in connection with their own websites, and you irrevocably waive, and cause to be waived, against Cynergy and its users any claims and assertions of moral rights with respect to Feedback and you represent, warrant and agree that your Feedback does not contain the confidential or proprietary information of you or of any third-party, Cynergy is under no obligation of confidentiality, express or implied, with respect to the Feedback nor do we need to retain a copy of such Feedback. Additionally, with respect to your Feedback related to cybersecurity providers, you represent, warrant, and covenant that: (i) such is true, accurate and not submitted as an attempt to manipulate the search results offered as part of the Services, (ii) such is made voluntarily and relates only to the service that you received or booked from the specific cybersecurity provider, (iii) you are not related to or employed by or affiliated with such cybersecurity provider, (iv) you have the right to submit your Feedback without violating the intellectual property rights of any person or entity, (v) such will not contain any personal health or otherwise confidential information, (vi) such will not violate any law, regulation or statute or promote or encourage illegal activity, (vii) such will not harm, or threaten the safety of others, (viii) such is racially, ethnically or be otherwise objectionable, (ix) you will not imply that such Feedback endorsed by Cynergy. You may expose yourself to liability by providing Feedback if such is false, intentionally misleading, defamatory, or violates any third-party right, including any intellectual property or proprietary right, contains material that is unlawful, including exploiting or otherwise causing harm to minors, or violates or advocates the violation of any law or regulation. You are responsible for the content of your Feedback and once submitted, it is in the sole discretion of Cynergy as to whether such can be withdrawn. Cynergy retains the right to delete or remove Feedback posted or displayed on the Site or via the Services for any reason or no reason at all at any time or repost for the same. Cynergy may but has no obligation to monitor, moderate, review, screen, edit, or police feedback or third-party advertising posted or displayed on the Site or via the Services.
7. License
Provided that you agree with and are in compliance with this Agreement and solely for your non-commercial use and not for resale or distribution to anyone, Cynergy grants to you, an individual, a limited, revocable, non-transferable, non-sublicensable, non-exclusive license to (i) access and/or use the Services, and (ii) provided you reproduce and include all copyright and other proprietary notices, download or store (to a temporary cache) or print (a single copy) information made available via the Services. Except as expressly permitted by us in this Agreement you will not directly or indirectly copy, reproduce, modify, adapt, translate, distribute, transmit, download, upload, scrape, post, sell, rent, transfer, publicly display, mirror, frame, extract, wrap, create derivative works of, reverse engineer, decompile or disassemble any aspect of the Services or any of the information provided therein, in whole or in part, in any form or by any means, whether manual or automatic. No proprietary right is being transferred to you by this Agreement. There are no implied licenses under this Agreement. All rights not expressly granted to you herein are reserved by us or our licensors. Cynergy vigorously enforces its intellectual property rights to the fullest extent of the law and you specifically acknowledge and agree that any and all misappropriation or misuse of Cynergy technology or information made available as part of the Services will cause irreparable harm to Cynergy and that money damages will not constitute sufficient compensation to Cynergy; consequently, in the event that you, directly or indirectly, misappropriate or misuse any of the proprietary technology or information contained therein, you specifically consent to Cynergy obtaining injunctive relief against you in addition to any other legal or financial remedies to which Cynergy may be entitled.
8. Payment Disputes
You must resolve any dispute between you or any cybersecurity provider arising from any transaction hereunder directly with the cybersecurity provider.
9. Links to Third-Party Websites
The Services may include the provision of links to third-party websites for the use and/or convenience of our users. We urge you to read the terms and conditions and privacy policy of each third-party site that you choose to visit prior to any utilization of their offering as these Terms, including our Privacy Policy, do not govern such sites. Such links do not imply, directly or indirectly, our endorsement, recommendation or affiliation with products, services, or information provided by such third parties. Such sites are maintained by third parties over which we exercise no control. You acknowledge and agree that Cynergy shall not be liable for any damages or injury resulting or arising from the content of or access to such other websites. Accordingly, we expressly disclaim any and all liability and responsibility for the accuracy, availability, legitimacy, reliability, completeness, currency, quality, performance, or suitability of the content, data, information, or materials provided on or through any third-party site and you acknowledge and agree that Cynergy shall not be liable for any damages or injury resulting or arising from the content of or access to such other websites and applications
10. Assumption of Risk
CYNERGY DOES NOT ENDORSE ANY PARTICULAR CYBERSECURITY PROVIDER. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (i) YOUR USE OF THE SERVICES ARE ENTIRELY AT YOUR OWN RISK, (ii) YOU HAVE BEEN ADVISED THAT THE INFORMATION MADE AVAILABLE VIA THE SERVICES MAY INCLUDE INACCURACIES AND THAT SOME OF THE CONTENT, INCLUDING BUT NOT LIMITED TO cybersecurity PROVIDER INFORMATION, DATA, RESEARCH, ANALYSIS, AND REVIEWS, PAID OR UNPAID, ARE PROVIDED BY THIRD-PARTY INFORMATION PROVIDERS AND MAY BE UNVERIFIED BY Cynergy, (iii) YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE INFORMATION AVAILABLE ON OR TRANSMITTED THROUGH THE SERVICES. ACCORDINGLY, Cynergy DOES NOT ASSUME ANY LIABILITY TO YOU FOR ANY OF YOUR ACTIONS, INCLUDING YOUR USE OF THE SERVICES OR THE POSTING OR UTILIZATION OF ANY CONTENT YOU SUBMIT DIRECTLY OR INDIRECTLY TO Cynergy. WE EXPRESSLY DISCLAIM ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS YOU MAY MAKE WITH cybersecurity PROVIDERS OR WITH THIRD PARTIES WHO OFFER SERVICES BOOKED VIA USE OF Cynergy’S SERVICES, AND YOU WILL LOOK SOLELY TO SUCH cybersecurity PROVIDERS AND THIRD PARTIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS AND/OR SUCH SERVICES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR”.
11. Disclaimer of Warranties
CYNERGY EXPRESSLY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO ANY AGREEMENTS YOU MAY ENTER INTO WITH cybersecurity PROVIDERS OR OTHER THIRD PARTIES WHO OFFER SERVICES TO YOU THROUGH YOUR UTILIZATION OF CYNERGYS SERVICES, AND YOU AGREE TO LOOK SOLELY TO SUCH CYBERSECURITY SERVICE OR PRODUCT PROVIDERS AND THIRD PARTIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH. We have no fiduciary duty to you. You acknowledge that with respect to the Services (which includes links to third parties, submission of content or opinions of users or other third parties), (i) we have no control over, and no duty to take any action regarding which users gain access, or (ii) what content you access, (iii) what effects the content may have on you, or (iv) how you may interpret or use the content, or (v) what actions you may take as a result of having been exposed to the content. You release us from all liability for you having acquired or not acquired Content through the Services. Be advised, the Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. We make no representations concerning the content contained in or accessed through the Services and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We make no representations or warranties regarding suggestions or recommendations of services offered or purchased through the Services. ACCESS TO THE SERVICES AND THE INFORMATION AND CONTENT CONTAINED THEREON IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, WITHOUT BREACHES OF SECURITY, ERROR/BUG-/VIRUS/DEFECT, OR OTHER HARMFUL ITEM FREE OR THAT LOSS OF DATA WILL NOT OCCUR. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF INFORMATION PROVIDED BY USERS OF THE SERVICES OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH SUCH. EXCEPT AS EXPRESSLY SET FORTH HEREIN, WE MAKE NO WARRANTIES ABOUT THE SERVICES MADE ACCESSIBLE THROUGH THE SERVICES OR ANY SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF IMPLIED WARRANTIES OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY SUCH APPLICABLE LAW.
12. Limitations on Liability
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS OUR LIABILITY. YOU ARE GIVING UP CERTAIN LEGAL RIGHTS BY AGREEING TO THESE TERMS. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY FOR ANY DISSATISFACTION WITH THE SERVICES OR ANY DISPUTE OR ANY OTHER GRIEVANCE WITH Cynergy SHALL BE THE TERMINATION AND DISCONTINUATION OF YOUR ACCESS TO OR USE OF THE SERVICES. WE EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO ANY INJURY CAUSED BY OR TO YOU OR ANY DAMAGE SUFFERED BY YOU, AS A RESULT OF THE ACTIONS OR INACTIONS OF US OR ANY OTHER USER. IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICES, REGARDLESS OF THE FORM OF ACTION, EXCEED A TOTAL OF FIFTY US DOLLARS (US$50). IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY THIRD-PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR MEDICAL MALPRACTICE OR NEGLIGENCE OF Cynergy PROVIDERS UTILIZED THROUGH USE OF THE SERVICE, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY SUCH APPLICABLE LAW.
13. Indemnity
UPON A REQUEST BY US, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS CYNERGY, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THE EMPLOYEES, CONTRACTORS, OFFICERS, DIRECTORS, AGENTS, SUPPLIERS, SUCCESSORS AND ASSIGNEES OF EACH OF THEM FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, LOSSES, COSTS, AND EXPENSES, INCLUDING ATTORNEY’S FEES AND LITIGATION EXPENSES ARISING OUT OF OR RELATING TO (i) your access to or use of the Services, (ii) your violation of this Agreement, (iii) any products or services obtained by you in connection with the Services, or (iv) any negligent or illegal or wrongful conduct or infringement of an intellectual property right of Cynergy, or a third-party, by you or any other person accessing the Services using your credentials, or (v) any feedback that you submit to Cynergy directly or via the Services, or (vi) any arrangements you make based on information obtained via the Services, or (vii) any breach by you of this Agreement. The foregoing indemnification obligation does not apply to liabilities, claims, and expenses arising as a result of our own gross negligence or intentional misconduct. Cynergy will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. Cynergy reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without the prior written consent of Cynergy.
14. Force Majeure
You absolve and release Cynergy from any claim of harm resulting from any cause over which we do not reasonably have control including, but not limited to, acts of God, riots, fires, floods, failure of electronic or mechanical equipment or communication lines, acts or campaigns of terrorism or sabotage, telephone or other interconnect problems, blockades, embargoes, computer viruses or other damaging code or data, unauthorized access, theft, operator errors, severe weather, natural disasters, strikes or other labor difficulties, civil unrest, civil disobedience, acts of wars or governmental restrictions.
15. Governing Law; Jurisdiction; Venue
Any controversy, dispute, or claim arising out of or related to this Agreement or your use of the Services shall be governed by the laws of the State of California, without regard to its conflict of laws provisions; except and only to the extent that the Health Insurance Portability and Accountability Act Privacy Rule, 45 CFR Part 160 and Subparts A and E of Part 164, is mandated to specific health-related information you provided to us through the Services. These Terms shall not be governed by the United Nations Convention on Contract for the International Sale of Goods, the application of which is expressly disclaimed. This Agreement controls the relationship between us and you and does not create any third-party beneficiary rights. Cynergy account registration is void where prohibited by applicable law, and the right to access such is revoked in such jurisdictions. YOU AGREE THAT, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED LAWSUIT OR ARBITRATION, and otherwise settled by the courts located in San Francisco, California, and you hereby expressly waive any jurisdictional, venue or inconvenient forum objections to such courts and you agree to submit to the personal jurisdiction of the state and federal courts located in the City and County of San Francisco in the State of California.
16. Termination; Survival
You agree and acknowledge that Cynergy may suspend or terminate your access to the Services, with or without notice or cause, for any or no reason, and without any liability to you or any third-party for such. Upon such termination, all licenses granted to you under this Agreement immediately and automatically terminate and you may no longer access, browse or otherwise use or access the Services. In the event of any termination of this Agreement, whether by you or us, those sections which are intended to survive such termination shall continue in full force and effect including our right to use Feedback as provided for herein, warranty disclaimers, limitations, and exclusions of liability, indemnity and the and other terms and conditions of this Agreement which by their nature are intended to survive and will survive the termination or expiration of this Agreement.
17. Electronic Communications; Notices
Your affirmative act of accessing and using the Services constitutes your electronic signature to this Agreement and your express consent to receiving electronic communications from us which include notices about fees. You agree that all agreements, notices, authorizations, disclosures, and other communications that we provide to you electronically, as well as any acceptances, agreements, consents, or authorizations that you provide to us electronically, satisfy any and all legal requirement(s) that such communications be in writing. You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent such waiver is not specifically prohibited under applicable law. Should you elect to send or receive e-mail communications of any kind to or from Cynergy, you represent and warrant to Cynergy that you have provided your current email address and/or your mobile phone number and that your e-mail service and/or mobile network operator has a security system necessary to prevent unauthorized access to outbound or inbound e-mail transmissions and/or text messages. Notices sent via email and / or text message to you will be deemed received by you the business day after the e-mail and / or text message is sent, whether or not you provided an accurate or current e-mail address and / or mobile phone number. Notices sent to Cynergy via email and/or text message or carrier shall be deemed delivered when actually received by Cynergy.
18. MiscellaneousFailure to insist on strict performance of any provisions of this Agreement will not constitute a waiver of any breach or failure of performance and no waiver of any provision of the Agreement will be valid unless in writing and acknowledged in writing or electronically by both parties. These Terms, and any rights or obligations hereunder, are not assignable, transferable, or sublicensable by you except with Cynergy’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void. We reserve the right, at our sole discretion, to change, alter, amend or otherwise modify this Agreement from time to time. We urge you to check back and review the Agreement for any updates or modifications. After any such modification becomes effective, your continued access to or use of the Services will deem your acceptance of and agreement to such modifications. This Agreement including the incorporated policies and supplemental terms constitutes the entire agreement between you and Cynergy with respect to your use of the Services and supersedes all previous understandings or agreements between you and Cynergy, whether written or oral. If any provision of this Agreement is adjudged invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be promptly replaced to, as nearly as possible, reflect the original intentions, including economic effect, of you and Cynergy and the remaining provisions shall remain in full force and effect. No joint venture, partnership, employment or agency relationship exists between you and Cynergy as a result of this Agreement or your use of the Services. The section titles in the Terms are for convenience only and have no legal or contractual effect. You agree and acknowledge that (i) no reliance is placed on any representation other than as expressly contained in this Agreement, (ii) in providing you access to and use of the Services, Cynergy has relied on your acceptance of these Terms at the time you access and/or use the Services.
