This User Service Agreement governs the Subscriber’s use of the software and services provided by Cygeria Networks under the brand name of Cygeria. This is a legal agreement which incorporates the Privacy Policy at cygeria.com/privacy. By registering to use the Service, the Subscriber agrees to be bound to the terms of this User Licence Agreement.
1. Definitions
(a) “Account Data” means data which pertains to the Subscriber and Users necessary to identify them and administer their use of the Service. For the avoidance of doubt Account Data does not include data uploaded by the Subscriber or Users relating to contacts, documents or similar data.
(b) “Administrator” means the person designated by Subscriber (i) as its primary administrative contact for the purposes of support, issues related to outages and other problems and technical items and (ii) who has authority from the Subscriber to bind the Subscriber and administer the subscription to the Service and designate additional Users and/or Administrators. The first User is deemed to be designated as an Administrator.
(c) “Agreement” means this entire User Service Agreement and incorporates by reference the Privacy Policy located at cygeria.com/privacy.
(d) “Confidential Information” means the Account Data, Content and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, user information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to either party’s premises.
(e) “Content” means any information or materials a User uploads or posts to the Service, including, without limitation, information about its Users or Registered Users.
(f) ‘Good Industry Practice’ means the deployment of that degree of care and skill, technical resources and innovations which is to be expected of professional and adequately resourced providers of services similar to the Service.
(g) “Including” means ‘including, without limitation’ and ‘include’ and ‘included’ will be interpreted in like manner.
(h)“Intellectual Property Rights” means all rights and interests in all (a) patents, utility models, patent applications, and continuing (continuation, divisional, or continuation-in-part) applications, re-issues, extensions, renewals, and re-examinations thereof and patents issued thereon; (b) registered and unregistered trademarks, service marks, trade names, domain names, and all of the associated goodwill; (c) registered and unregistered copyrights and all other literary and author’s rights or moral rights; (d) trade secrets, know-how, show-how, concepts, ideas, methods, processes, designs, discoveries, improvements, and inventions, whether or not patentable; (e) all other intellectual, industrial, and proprietary rights now or hereafter coming into existence throughout the world; (f) applications for and registrations, renewals, and extensions of any of the foregoing; and (g) exclusive and non-exclusive license rights to any of the foregoing.
(i) “Primary Subscriber” shall mean the Subscriber who initiated the Services offered by Cygeria Networks and is assumed by Cygeria Networks to have the sole authority to administer the subscription.
(j) “Registered User” means an individual who has been invited to use the client-facing features of the Service in a limited capacity as a client (or representative of a user) of a Subscriber.
(k) “Service” shall mean any software or services provided by Cygeria Networks, including but not limited to Cygeria.
(l) “Subscriber” means the entity (typically a retail business) which purchases the Service.
(m) “Security Emergency” shall mean a breach by Subscriber of this Agreement that (a) could disrupt (i) Cygeria’s provision of the Service; (ii) the business of other Subscribers; or (iii) the network or servers used to provide the Service; or (b) provides unauthorised third party access to the Service.
(n) “User” means an individual person, other than a Registered User, provided with access to the Service by an Administrator.
2. Limited Licence & Use of the Service
2.1 Subscriber is granted a non-exclusive, non-transferable, limited licence to access and use the Service.
2.2 Cygeria does not review or pre-screen Content and Cygeria claims no Intellectual Property Rights in the Content.
2.3 Subscriber shall ensure that Users and Registered users comply with this Agreement. Subscriber shall be responsible for the acts and omissions of the Users and the Registered Users. Without limiting the generality of the foregoing, Subscriber is responsible for any disclosure of Content arising out of features enabled by Users.
2.4 Subscriber shall not copy or resell the Service. Subscriber must not exploit access to the Service or any portion of the Service, including the HTML, cascading style sheet or any visual design elements otherwise than for Subscriber’s own internal business and for the design purpose of the Service.
2.5 Subscriber shall not modify, reverse engineer, adapt or otherwise tamper with the Service, except as mandated by Business, or modify another website so as to falsely imply that it is associated with the Service, Cygeria, or any other service provided by Cygeria Networks.
2.6 Subscriber shall not use the Service in any manner which may infringe Intellectual Property Rights or in any manner which is unBusinessful, offensive, threatening, libellous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.
2.7 Subscriber shall not use the Service to upload, post, host, or transmit unsolicited bulk e-mail “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
2.8 Except for the non-exclusive licence granted pursuant to this Agreement, Subscriber acknowledges and agrees that all ownership, licences, Intellectual Property Rights and other rights and interests in and to the Service shall remain solely with Cygeria Networks. Subscriber is not entitled or permitted to use the Service otherwise than through the medium of the internet-hosted version deployed by Cygeria Networks.
2.9 Cygeria Networks reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to Content that breaches the terms of this Agreement, including removal of such Content.
2.10 Cygeria Networks reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that Cygeria Networks shall provide Subscriber with thirty days’ notice of any modification that materially reduces the functionality of the Service and in such circumstances.
2.11 Cygeria Networks reserves the right to temporarily suspend access to the Service for operational purposes, including maintenance, repairs or installation of upgrades. Cygeria Networks will provide no less than two business days’ notice prior to any such suspension. Such notice may include posting a message using the Service. Cygeria Networks shall have the right to temporarily suspend access to the Service without notice in circumstances where urgent action is required to protect the Service if the delay caused by giving notice could cause material harm. Cygeria Networks shall use all reasonable endeavours to minimise operational suspensions in order to minimise disruption to the Service.
3. Access to the Service
3.1 Only Users and Registered Users are permitted to use the Service. In order to access the Service, Users are required to provide their full legal and business name, a valid email address, and any other information reasonably requested by Cygeria Networks.
3.2 Each User will be provided with a unique identifier to access and use the Service (“Username”). The Subscriber shall use all reasonable endeavours to ensure that each Username is only used by the User to whom it is assigned, and is not shared with, or used by, any other person, including other Users.
3.3 The initial Administrator shall be the Primary Subscriber with authority to administer the subscription and designate additional Authorized Users and/or Administrators. Each subscription may designate multiple Authorized Users as Administrator. Any Administrator shall be deemed to have the authority to manage the subscription and any Authorized Users. The Administrator will deactivate an active Username if the Administrator wishes to terminate access to the Service for any Authorized User.
3.4 Where a Subscriber has just one Administrator, it will provide Cygeria Networks with the name and contact information of a designated User for use as an alternative point of contact if Cygeria Networks is unable to reach the Administrator for a period of thirty days following the initial attempt to contact the Administrator.
3.5 As between Cygeria Networks and the Subscriber, any Content remains the property of the Subscriber.
3.6 Upon cancellation or termination of the Service, Cygeria Networks shall only liaise with the Administrator or the designated User described in Clause 3.4 above (if the Administrator is unable to be reached) regarding the retrieval of Content.
3.7 All access to and use of the Service via automated means (that is to say, use other than direct interaction with a human User) is strictly prohibited except insofar as the Service includes features which are designed for such use.
3.8 The following provisions apply to the extent that Cygeria Networks can provides access to the Service using an application programming interface (“API”):
(a) use of the API is subject to the terms of this Agreement;
(b) Subscriber is responsible for testing any use of the API to verify that it produces the desired results;
(c) Cygeria Networks shall have no liability whatsoever and howsoever arising for any processing, deficient processing or loss of Content which takes place externally to the Service by reason of the API or for any matters arising in connection with systems or services external to the Service directly or indirectly connected to the Service using the API;
(d) excessive use of the Service using an API (as determined by Cygeria Networks, after making a reasonable attempt to warn the Subscriber) may result in temporary or permanent suspension of access to the Service via an API; and
(e) Cygeria Networks reserves the right at any time to modify or discontinue, temporarily or permanently, access to and use of the Service via an API, with or without notice.
4. Confidentiality
4.1 Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
4.2 Cygeria Networks acknowledges that Content may comprise materials which are the subject of professional duties (including confidentiality and duties imposed by the Regulator) owed by the Subscriber to its users.
5. Security and Access
5.1 Cygeria Networks shall provide a secure method of authentication and access to the Service, including:
(a) User password management and the protection of passwords by utilising code consistent with Good Industry Practice relating to password management; and
(b) Transmission of passwords in an encrypted format.
5.2 Except as set out in Clause 5.1, Subscriber shall be responsible for protecting the security of Usernames and passwords, or any other codes associated to the Service, and for the accuracy and adequacy of Content.
5.3 Subscriber will implement policies and procedures to prevent unauthorised use of Usernames and passwords, and will promptly notify Cygeria Networks upon suspicion that a Username or password has been lost, stolen, compromised, or misused.
5.4 At all times, Cygeria Networks, shall:
(a) use Good Industry Practice in relation to information security and processing Content;
(b) employ Good Industry Practice with respect to network security techniques, including firewalls, intrusion detection, and authentication protocols, vulnerability and patch management;
(c) ensure its hosting facilities use Good Industry Practices for security and privacy; and
5.6 Cygeria Networks shall report to Subscriber, with all relevant details (except those which could prejudice the security of data uploaded by other customers), any event that Cygeria Networks reasonably believes has led to or is likely to lead to unauthorised access to, disclosure of, use of, or damage to Content (a “Security Breach”). Cygeria Networks shall make such report within 72 hours after learning of the Security Breach.
5.7 In the event of a Security Breach, Cygeria Networks shall (a) cooperate with Subscriber to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Subscriber in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Subscriber in any litigation or investigation against third parties that Subscriber undertakes to protect the security and integrity of Content; and (d) use all reasonable endeavours to mitigate any harmful effect of the Security Breach.
6. Data Protection
6.1 The parties agree to comply with the provisions of the Data Processing Addendum.
7. Regulatory Requirements
7.1 Subscriber authorises and Cygeria Networks agrees to co-operate with all reasonable requests from a Regulator (and any Businessful representatives of the Regulator) for access to Content pertaining to the users and business of Subscriber.
7.2 Notwithstanding any other provisions of the Agreement, Cygeria Networks agrees to return, upon demand, in a complete, readable and understandable form, all Content. This obligation will prevail even if Subscriber is in breach of its obligations to Cygeria Networks or if Subscriber is in dispute with Cygeria Networks.
8. Legal Compliance
8.1 If Cygeria Networks is required by Business to make any disclosure of Confidential Information, Cygeria Networks will provide Subscriber with prompt written notice (to the extent permitted by Business) prior to such disclosure so that the Subscriber may seek a protective order or other appropriate relief. Subject to the foregoing sentence, Cygeria Networks may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled to disclose.
9. Managed Backup and Archiving
9.1 Cygeria Networks maintains a managed backup service on servers to facilitate restoration of Content to the server or device from which the Content originated in the event the primary data is lost or corrupted. Cygeria Networks shall use such service to recover lost or corrupted Content at no cost to the Subscriber.
9.2 Following termination of the Service for any reason, Subscriber shall have ninety days to retrieve any and all Content before it is deleted.
10. Payment, Refunds, and Subscription Changes
10.1 In exchange for the Service, Subscriber shall pay the subscription fees advertised by Cygeria Networks and in the manner and at the times specified below.
10.2 Apart from the free plan, Subscribers can make transfer or provide Cygeria Networks with a valid credit card for payment for the applicable subscription fees. All subscription fees are exclusive of VAT or other sales or use taxes which Subscribers agree to pay as required by Business, subject to Cygeria Networks raising a valid VAT invoice.
10.3 In addition to any fees advertised for the Service, the Subscriber may incur additional expense incidental to using the Service including charges for Internet access, data roaming, and other data transmission charges.
10.4 Monthly Subscribers will be charged their inaugural monthly fee at the conclusion of their free trial period. Thereafter, they will be charged in advance each thirty days. Annual Subscribers will pay their annual fee in advance and will thereafter be charged annually on the anniversary date of the initial subscription charge. All charges are final and non-refundable, including payments made by Annual Subscribers, setup fees, and other professional services charges.
Subscribers who purchased setup or professional services, like tailored live training, customized forms and documents, or migration services, must initiate those services within sixty (60) days (Service Window) following their purchase. Absent a separate invoice, the date of purchase for setup or professional services will be deemed to be the initial date of entry of a valid credit card for payment as required in 9.1. Failure of the Subscriber to initiate purchased setup or professional services within Service Window will result in those services no longer being available and no refund will be issued.
10.5 Except in so far as the Service is unavailable by reason of the acts or omissions of Cygeria Networks and as set out in, no refunds or credits (whether for monthly or annual subscriptions) will be issued for downtime, or for periods unused with an active subscription.
10.6 There are no charges for cancelling a subscription, and subscriptions cancelled prior to the end of their current billing cycle will be available until the end of the current billing cycle and will not be charged again in the following cycle.
10.7 The amount charged to the Subscriber on successive billing cycles will be automatically updated to reflect any changes to the Subscriber’s subscription, including upgrades or downgrades. Adding User subscriptions or subscription upgrades will trigger prorated charges in the current billing cycle. Subscriber authorizes Cygeria Networks to apply updated charge amounts.Subscription changes, including downgrades, may result in loss of features, or an increase or reduction in the amount of available capacity for Content provided by the Service.
10.8 All prices are subject to change upon notice. Such notice may be provided by an e-mail message to the Administrator, or in the form of an announcement on the Service.
11. Term and Termination
11.1 If Subscriber wishes to cancel its subscription, any Administrator may do so on its behalf at any time. For security reasons, cancellations shall only be performed by an Administrator using the account cancellation URL within the Service. The Administrator may be directed, within the Service, to call support to complete the cancellation. Cancellations shall not be accepted by email.
11.2 The term of this Agreement shall commence when the first User logs in to the Service and shall continue until such time as the Service is terminated using the settings provided for that purpose within the Service (or as otherwise expressly set out in this Agreement). Such settings are configured to allow an Administrator to terminate the Service at the end of the current subscription period, which is typically one month but may be of longer duration consistent with commercial offers made available from time to time. Without prejudice to Cygeria Networks’ rights and remedies expressly set out in this Agreement, Cygeria Networks is similarly entitled to terminate the Services (by giving notice to the Subscriber) at the end of the current subscription period.
11.3
(a) Without prejudice to any rights that have accrued under this Agreement or any of their rights or remedies, either party may at any time terminate this Agreement:
(b) by giving written notice to the other party with immediate effect if the other party commits a material breach of this Agreement (including failure to pay any amounts due under this Agreement for more than thirty days after the due date for payment) and fails to remedy that breach within a period of thirty days after being notified in writing to do so; or
(c) by giving thirty days’ written notice after the other party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is legally deemed unable to pay its debts, or (being an individual) is legally deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, or (being a partnership) has any partner to whom any of the foregoing apply; or
(d) by giving thirty days’ written notice after any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent to Clause 11.3.b.
11.4 Subscriber shall remove all Content from the Service prior to termination of this Agreement. Cygeria Networks is authorised to delete and destroy all Content stored on the Service in the repository of Subscriber 90 days after the Agreement terminates. Cygeria Networks shall have no obligation to notify any Users of termination of this Agreement or the Service or the deletion of Content. Cygeria Networks shall have no liability to Subscriber or any Users related in any way to its deletion and destruction of Content in accordance with this Agreement. To the extent Subscriber requests the assistance of Cygeria Networks in converting, copying, deleting or otherwise affecting Content in connection with the termination of this Agreement, such services will be performed on a time and material basis at rates outlined in Cygeria Networks’ then-current price list and payment schedule.
11.5 As required by Clause 9 above (“Managed Backup and Archiving”), upon termination of a subscription, Content is made available to the Administrator or the designated User described in Clause 3 above. Following a period of no less than ninety (90) days from the termination of a subscription, all Content associated with such subscription will be irrevocably deleted from the Service.
12. Limitation of Liability
12.1 Nothing in this Agreement shall exclude or limit any party’s liability for:
(a) death or personal injury resulting from that party’s negligence;
(b) that party’s fraud or statements made fraudulently by that party; or
(c) any other acts or omissions for which applicable Business prohibits the exclusion or limitation of liability.
12.2 No party will be liable under any circumstances for any:
(a) loss of profit, loss of business, loss of goodwill, loss of savings, claims by third parties, loss of anticipated savings, business interruption whether direct or indirect in each case; or
(b) pure economic loss, indirect loss or consequential loss whatsoever and howsoever caused; or
(c) punitive or exemplary damages;
even if caused by that party’s negligence and/or breach of this Agreement and even if the party was advised that such loss would probably result.
12.3 Cygeria Networks will not be liable for any loss or claims arising in connection with this Agreement to the extent that such loss or claims could have been avoided or reduced by the use of:
(a) back-up facilities available as part of the Service; or
(b) advice from help desk support or reasonable practices and tools promulgated by Cygeria Networks to avoid such loss or claims.
13. Warranties and Representations
13.1 Subscriber warrants and represents that it has the legal right to store, process and distribute Content using the Service.
13.2 Cygeria Networks shall use reasonable care and skill when performing the Services.
13.3 Cygeria Networks warrants that the Content will be encrypted and will be stored securely, having regard to the state of technological development and the cost of implementing any measures.
13.4 Each of the parties agrees to perform this Agreement in accordance with applicable Businesss.
13.5 Cygeria Networks warrants and represents that it is entitled to enter into this Agreement and to provide the Services without infringing the Intellectual Property Rights of any third party.
13.6 The Services may not be compatible with Subscriber’s computer and/or other equipment. The Service may not be error free. Cygeria Networks disclaims any warranty as to any results that may be obtained from the use of the Service. Nothing in this Clause 13.6 shall modify Cygeria Networks’ obligations under Clause 4 above (“Confidentiality”) or Clause 5 above (“Security and Access”).
13.7 Each party acknowledges and agrees that it has not entered into this Agreement on the basis of any representations or promises not expressly contained herein.
13.8 Except as specifically provided elsewhere in this agreement, Cygeria Networks hereby disclaims all warranties of any kind, implied or statutory, including the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement of third party rights with respect to any services provided by Cygeria Networks.
14. Miscellaneous
14.1 Cygeria Networks shall be entitled to subcontract part, but not the whole, of the Service. To the extent that Cygeria Networks does subcontract any part of the Service, Cygeria Networks shall:
(a) be responsible for the acts and omissions of its subcontractors;
(b) procure from subcontractors obligations and restrictions consistent with Cygeria Networks’ obligations and restrictions in this Agreement (including those relating to confidentiality, data protection and use of Content); and
(c) exercise reasonable care and skill in the appointment of subcontractors.
14.2 Technical support and training are available to Users with active subscriptions, and is available by telephone, email or electronic support ticket.
14.3 Cygeria Networks may provide the ability to integrate the Service with third party products and services at Subscriber’s option and risk. Access to and use of any third party products and services are subject to the separate terms and conditions required by the providers of the third party products and services. Subscriber agrees that Cygeria Networks has no liability arising from Subscriber’s use of any integrations or arising from the third party products and services. Cygeria Networks can modify or cancel the integrations at any time without notice.
14.4 The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
14.5 This Agreement constitutes the entire agreement between Subscriber and Cygeria Networks and governs Subscriber’s use of the Service, superseding any prior agreements between Subscriber and Cygeria Networks (including any prior versions of this agreement).
14.6 Cygeria Networks reserves the right to amend this Agreement. In the event of material changes to the Agreement, Cygeria Networks will notify Subscribers, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Service by the Subscriber after reasonable notice will be considered acceptance of the updated Agreement. If you object to any material change, you may elect to terminate this Agreement in accordance with Clause 11 (“Term and Termination”).