Effective April 1, 2018
CYGNA LABS TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THE “CYGNA LABS TERMS OF SERVICE” IS AN AGREEMENT (THE “AGREEMENT”) ENTERED INTO BETWEEN THE INDIVIDUAL OR CUSTOMER ENTITY (“CUSTOMER”) IDENTIFIED ON ANY ORDER FOR SERVICES (WHETHER FOR TRIAL OR SUBSCRIPTION SERVICES) REFERENCING THIS AGREEMENT (EACH AN “ORDER”) AND CYGNA LABS, INC., A DELAWARE CORPORATION WITH OFFICES AT 350 LINCOLN ROAD, 2ND FLOOR, MIAMI BEACH, FL 33139, USA (“CYGNA LABS”) RELATING TO THE CYGNA LABS SERVICES. BY (I) CUSTOMER CLICKING THROUGH THIS AGREEMENT ELECTRONICALLY, (II) THE PARTIES ENTERING INTO AN ORDER REFERENCING THIS AGREEMENT, OR (III) CUSTOMER USING THE SERVICES, CUSTOMER AND CYGNA LABS MUTUALLY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREOF. EACH ORDER SHALL BE MUTUALLY AGREED TO AND ENTERED INTO BETWEEN CUSTOMER AND CYGNA LABS PROVIDED THAT IF CUSTOMER PURCHASES THE SERVICES THROUGH A CYGNA LABS AUTHORIZED PARTNER (‘RESELLER”), THE ORDER SHALL BE THE ORDER ENTERED INTO BETWEEN CYGNA LABS AND THE RESELLER FOR CUSTOMER’S USE. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICES.
IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN AGENT, EMPLOYEE OR REPRESENTATIVE OF YOUR EMPLOYER, THE TERM “CUSTOMER” MEANS YOUR EMPLOYER AND/OR ANY OTHER PARTY ON WHOSE BEHALF YOU ACT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ACT ON SUCH PARTY’S BEHALF. IF YOUR ORGANIZATION HAS ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH CYGNA LABS SPECIFICALLY RELATING TO THE DELIVERY OF THE CYGNA LABS SERVICES, THEN THE TERMS OF THAT AGREEMENT SUPERSEDE ANY CONFLICTING TERMS IN THIS AGREEMENT.
2.1 Services License.
Cygna Labs shall provide the Services as described in an Order. Subject to the terms and conditions of this Agreement and subject to the payment of any applicable fees, Cygna Labs grants Customer, during the subscription term specified in an Order, a non-exclusive, non-transferable license (without the right to sub-license) to (i) access and use the Services for Customer’s internal business purposes in accordance with the Documentation, and (ii) access and use any application programming interfaces (“API’s”) included with the Service for their intended use and as described in the Documentation, solely to develop, implement and use Customer applications and integrations (“Customer Applications”) that utilize or interact with the Cygna Labs API’s and solely in connection with Customer’s authorized use of the Services. In connection with such use, Customer shall have the right to allow its employees and contractors (“Authorized Personnel”) to use the Services on Customer’s behalf. Cygna Labs owns all right, title and interest in its Services and in the Cygna Labs Pre-existing Intellectual Property. Nothing in this Agreement shall be construed to grant Customer any rights in Cygna Labs’ Services beyond those expressly provided for herein.
2.2 License Restrictions.
2.3 Customer Access to the Services.
Customer is solely responsible for ensuring that only appropriate Authorized Personnel of Customer have access to the Services, that such Authorized Personnel have been trained in proper use of the Services, and for ensuring proper usage of passwords, tokens and access procedures. Cygna Labs reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement. Customer agrees to notify Cygna Labs immediately upon learning of any unauthorized use of Customer’s account or any other breach of security relating to Customer’s use of the Services.
2.4 Free or Beta Versions of the Services.
If Customer is using a free trial or proof of concept version of the Services or a beta version of the Services, Cygna Labs makes such Services available to Customer until the earlier of (a) the end of the free trial or proof of concept period or beta testing period as communicated by Cygna Labs, (b) the start date of any purchased version of such Services, or (c) written notice of termination from Cygna Labs. Customer is authorized to use a trial or proof of concept version of the Service only for evaluation and not for any commercial or productive purposes. Any data Customer enters into the Services and any customizations made to the Services by or for Customer during the free trial or proof of concept or during the beta testing period will be permanently lost unless Customer (a) has purchased a subscription to the same Services as covered by the free trial or proof of concept or beta version or (b) exports such data before the end of such free period. There is no guarantee that features or functions of the Service available in a beta version of the Service will be available, or if available will be the same, in the general release version of the Service and Customer should review the Service features and functions before making a purchase.
Customer acknowledges that Cygna Labs’ Services operates on one or more third party cloud computing platforms and that Cygna Labs shall have the right to change or add to the cloud computing platforms on which its Services operate.
3. CUSTOMER DATA.
Customer owns all right, title and interest in all data and/or content created or provided by Customer, and in all data derived therefrom (“Customer Data”) excluding the Non-Identifiable Aggregated Data (as defined below). Nothing in this Agreement shall be construed to grant Cygna Labs any rights in Customer Data beyond those expressly provided herein. As between Cygna Labs and Customer, Customer shall retain possession of the Customer Data at all times and shall be responsible for backing up the Customer Data, except to the extent that Customer specifically authorizes Cygna Labs to create and store statistical meta data as expressly described below. Notwithstanding any other restrictions on use of data in this or any other agreement (i) Customer grants Cygna Labs the limited, non-exclusive right to perform an automated content scan of Customer Data stored with Customer’s Cloud Provider solely for the purpose of providing the Services to Customer, (ii) Customer grants Cygna Labs the limited, non-exclusive right to view, modify, collect and use the Customer Data to create meta-data derived from Customer Data (which may include, by way of example, file modification dates, audit trails, and the number of times a file has been accessed) (“Customer Meta-Data”), solely for the purpose of providing the Services to Customer (iii) Customer grants Cygna Labs the right to collect and use anonymized generic statistical information derived from such Customer Meta-Data (but not derived from the Customer Data directly) and aggregate it with statistical information from other customers (“Non-Identifiable Aggregated Data”) for Cygna Labs’ business purposes, including without limitation for analyzing customer needs and improving its services, and (iv) Customer agrees that Cygna Labs shall own all right, title and interest in any such Non-Identifiable Aggregated Data. For purposes of greater clarity, Cygna Labs will not store any Customer Data, except to the extent that it constitutes Customer Meta-Data. As between Cygna Labs and Customer, Customer is solely responsible for the content, quality and accuracy of Customer Data, for securing any necessary approvals for Cygna Labs’ use of the Customer Data as provided for herein, and for ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations. Cygna Labs is not responsible for Customer Data once it leaves the Cygna Labs Service, including by way of example, if Customer utilizes APIs to push data from the Service to a Customer Application.
4. SUPPORT; UPDATES AND MAINTENANCE.
Cygna Labs shall make available to Customers who have paid fees for the Service, support, updates, and maintenance in accordance with the Cygna Labs Service Level Agreement located at http://www.cygnalabs.com/sla.
Fees for the Service are due annually in advance net thirty (30) days from date of invoice unless the Order specifies otherwise. Fees do not include sales, use, value added or other excise tax. Customer is responsible for payment of all such taxes based on fees paid or payable hereunder (but not taxes based on Cygna Labs’ or a Reseller’s gross revenues or net income) together with any interest on such taxes if not due to Cygna Labs’ or the Reseller’s delay. Delinquent payments may be assessed interest at the rate of one-and-one-half percent per month (or the highest rate permissible by law if less) from the payment due date until paid in full. Fees for the Service are based on “normal usage” of the Service in a manner consistent with its intended purposes and as described in the Documentation. If Customer’s usage is in a manner outside of the intended purposes or otherwise exceeds the quantities listed in the Order or the applicable Service specific usage limits set forth in the Cygna Labs Use Policy, then Cygna Labs reserves the right to require Customer to either comply with such limits or pay an additional mutually agreed fee, not to exceed Cygna Labs’ list price for such additional usage.
6. TERM AND RENEWAL.
6.1 Term and Termination of Agreement.
This Agreement shall remain in effect unless or until terminated in accordance with the terms hereof. Either party may terminate this Agreement, upon thirty (30) days prior written notice, for any reason, in the event that there is no Order then in effect.
6.2 Term of Order.
Each Order shall remain in effect for the term stated in the Order or, in the case of a trial unless otherwise stated in a trial Order, for so long as Cygna Labs determines, unless sooner terminated in accordance with the terms of this Agreement or the Order.
6.3 Renewal of Order.
Customer shall receive an invoice for the applicable fees at least sixty (60) days prior to each then current expiration date of the subscription term of an Order, and the term of the Order shall be automatically renewed at the invoiced price for a successive one (1) year period, unless either party provides written notice of non-renewal to the other at least thirty (30) days prior to the end of the then current subscription term.
6.4 Termination or Suspension of an Order.
Either party may terminate an Order upon written notice to the other party if the other party materially breaches this Agreement or the Order and fails to cure such breach within thirty (30) days after receiving written notice of such breach. Cygna Labs may terminate an Order and/or suspend the Services upon written notice to Customer if Cygna Labs has not received payment for such Services and if such failure is not cured within thirty (30) days after Cygna Labs provides written notice of such failure.
6.5 Effect of Termination.
Upon termination of an Order (i) Customer will have no further right to access or use the Services; (ii) Cygna Labs will immediately cease accessing any Customer Data; (iii) each party will use commercially reasonable efforts to return any tangible Confidential Information and destroy any electronic Confidential Information of the other party within its possession or control; and (iv) in the event that Customer terminates due to Cygna Labs’ uncured material breach, Cygna Labs will provide a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis. Customer acknowledges that, prior to termination, Customer is responsible for exporting any Customer Data to which Customer desires continued access after termination. The provisions of Sections 3, 5, 6.5, 7, 8, 9, 10, 11, 13, 14 and 15 shall survive termination.
Each party may have access to information that is confidential or proprietary to the other party and/or its Affiliates. For purposes of this Agreement, “Confidential Information” means the confidential information of a party and/or its Affiliates which is made available in connection with this Agreement, whether disclosed in written, oral, electronic, visual or other form, which is identified as confidential at the time of disclosure or should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including without limitation information regarding a party’s business, operations, finances, technologies, current and future products and services, pricing, personnel, customer and suppliers and (i) with regard to Customer, the Customer Data and Customer Pre-existing Intellectual Property, and (ii) with regard to Cygna Labs, the Services and Cygna Labs Pre-existing Intellectual Property. The receiving party will use the disclosing party’s Confidential Information solely as necessary in connection with the performance of this Agreement. The receiving party shall maintain the confidentiality of the disclosing party’s Confidential Information using at least the same degree of care that such party uses to protect its own Confidential Information of a similar nature, and shall restrict disclosure of the disclosing party’s Confidential Information to its employees, consultants, contractors, agents and representatives who have a need to know such information and are bound by obligations of confidentiality and non-use no less restrictive than those set forth herein; provided, that a party may disclose the disclosing party’s Confidential Information if required by law and provided the receiving party provides prompt notice of such requirement and disclosure to the other party to the extent allowed by law. Confidential Information excludes information to the extent such information (i) is or becomes part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure and was not obtained directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
8. WARRANTIES AND DISCLAIMERS.
8.1 Limited Services Warranty.
Cygna Labs warrants that the Services will perform in substantial conformity with the Documentation. Customer shall be required to report any breach of warranty to Cygna Labs within a period of thirty (30) days of the date on which the incident giving rise to the claim occurred. Cygna Labs’ sole and exclusive liability, and Customer’s sole and exclusive remedy, for breach of this warranty will be for Cygna Labs, at its expense, to use reasonable commercial efforts to correct such nonconformity within thirty (30) days of the date that notice of the breach was provided; and, if Cygna Labs fails to correct the breach within such cure period, Customer may terminate the affected Order and, in such event, Cygna Labs shall provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis.
8.2 Compliance with Laws.
Each party shall comply with all applicable, laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.
THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES GIVEN BY CYGNA LABS WITH RESPECT TO THE SERVICES OR THIS AGREEMENT. CYGNA LABS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, INCLUDING WITHOUT LIMITATION WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, FREE OF DEFECT OR ERROR, NON-INFRINGING, OR FIT FOR ANY PARTICULAR PURPOSE. CYGNA LABS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF THE SERVICES. NOTWITHSTANDING THE EXPRESS WARRANTY SET FORTH ABOVE, CYGNA LABS MAKES NO WARRANTY WHATSOEVER TO CUSTOMERS USING A FREE OR TRIAL OR BETA VERSION OF THE SERVICES (“NONPAYING CUSTOMERS”) OR USING ANY COMPONENT OF THE SERVICE THAT IS IDENTIFIED BY CYGNA LABS AS A SAMPLE OR ANY SAMPLE REFERENCED IN THE DOCUMENTATION, AND PROVIDES SUCH SERVICES TO NONPAYING CUSTOMERS AND ALL SAMPLES “AS IS” AND “AS AVAILABLE.” CUSTOMER UNDERSTANDS THAT API’S SUPPLIED WITH THE SERVICE ARE SUBJECT TO CHANGE AND ASSUMES THE ASSOCIATED RISKS OF USING API’S FOR DEVELOPMENT PURPOSES. CUSTOMER AGREES THAT ITS PURCHASES HEREUNDER ARE FOR THE CURRENTLY AVAILABLE SERVICES AND ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR DEPENDENT ON ANY ORAL OR WRITTEN PUBLIC COMMENTS MADE BY CYGNA LABS REGARDING FUTURE FUNCTIONALITY OR FEATURES.
9.1 Services Indemnity.
Cygna Labs shall defend, at its expense, any claim, action or proceeding (“Claim”) brought by a third party against Customer and/or its Affiliates and their officers, directors and employees (the “Customer Indemnified Parties”) arising from an alleged infringement or violation by the Services of a third party’s patent, copyright or trade secret, and shall indemnify and hold the Customer Indemnified Parties harmless against all damages and costs finally awarded against the Customer Indemnified Parties in connection with such Claim; provided that Cygna Labs shall not be responsible for any Claim to the extent arising from (i) use of the Services in violation of the terms of this Agreement, or (ii) use of the Services in combination with software, hardware, systems or data provided or controlled by Customer or a third party to the extent the Claim would not have arisen but for such combination. If the Services become, or in Cygna Labs’ opinion are likely to become, the subject of a valid claim of infringement or the like under any patent, copyright or trade secret law, Cygna Labs shall have the right, at its option and expense, either to (i) obtain for Customer a license permitting the continued use of the Services, (ii) replace or modify the Services so that they become non-infringing, or (iii) if neither of the foregoing options are available in a timely manner on commercially reasonable terms, terminate the affected Order and provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis. The indemnification obligations of Cygna Labs in this Section are not applicable to Nonpaying Customers.
9.2 Customer Data and Use Indemnity.
Customer shall defend, at its expense, any Claim brought by a third party against Cygna Labs and/or its Affiliates or their officers, directors and employees (the “Cygna Labs Indemnified Parties”) arising from an alleged infringement or violation by the Customer Data of a third party patent, copyright or trade secret, or Cygna Labs’ use of the Customer Data in accordance with the terms of this Agreement; and Customer shall indemnify and hold the Cygna Labs Indemnified Parties harmless against all damages and costs awarded against the Cygna Labs Indemnified Parties in connection with such Claim.
9.3 Indemnification Process and Exclusivity.
The indemnifying party shall have sole control over the defense and settlement of any claim for which it has provided indemnity; provided that the indemnified party shall have the right to provide for its separate defense at its own expense. The indemnified party shall give prompt notice of any claim for which indemnity is sought and shall cooperate in defending against such claim at the indemnifying party’s expense. The rights and remedies set forth in this Section 9 state a party’s sole and exclusive liability and the other party’s sole and exclusive rights and remedies with regard to any third-party claim for infringement or violation of a third party’s intellectual property.
10. Limitations of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, TORT OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF OR DAMAGE TO SOFTWARE OR DATA, LOSS OF PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES FURNISHED HEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT ANY DAMAGES, LIABILITY, LOSSES, COSTS OR EXPENSES INCURRED BY A PARTY WHICH ARE PAYABLE TO A THIRD PARTY AS PART OF AN INDEMNIFICATION OBLIGATION HEREUNDER SHALL NOT BE SUBJECT TO THE FOREGOING EXCLUSION OF LIABILITY. EXCEPT FOR A PARTY’S IDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY HEREUNDER EXCEED THE TOTAL OF THE FEES PAID AND PAYABLE BY CUSTOMER TO CYGNA LABS FOR THE THEN CURRENT SUBSCRIPTION TERM OF THE ORDER TO WHICH THE CLAIM RELATES. THE LIMITATIONS OF LIABILITY IN THIS PARAGRAPH APPLY WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER STATUTE OR OTHERWISE.
11. U.S. GOVERNMENT RESTRICTED RIGHTS; EXPORT RESTRICTIONS.
If Customer is an agency or contractor of the United States Government, Customer acknowledges and agrees that (a) the Services (including any software forming a part thereof) were developed entirely at private expense, (b) the Services (including any software forming a part thereof) in all respects constitute proprietary data belonging solely to Cygna Labs, (c) the Services (including any software forming a part thereof) are not in the public domain, and (d) the software forming a part of the Services is “Commercial Computer Software” as defined in sub-paragraph (a)(1) of DFAR Section 252.227-7014 or FAR Part 12.212. Customer agrees not to store or process any data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit access to or use of the Services in any U.S. embargoed country or in violation of any U.S. export laws or regulations.
Subject to the limitations set forth herein, either party may use the other party’s name and/or logo (the “Marks”) on its website, customer or vendor list (as applicable) or other marketing materials to refer to the relationship between the parties pursuant to this Agreement. All such use shall be in accordance with the usage policies and guidelines of the party owning the Marks and provided in writing to the other party. If the owner of the Marks objects to any such use or wishes to revoke its permission to use its Marks hereunder, the other party shall cease any such use promptly after receiving notification. Neither party’s use of the other party’s Marks implies or confers any endorsement by either party. Except as expressly set forth above, neither party shall use any of the Marks or other trademarks of the other party in any public manner without the party’s prior written consent.
13. SERVICE SUGGESTIONS.
If Customer provides Cygna Labs with ideas or suggestions for improvements or changes to the Service (“Suggestions”), Customer hereby assigns to Cygna Labs ownership of such Suggestions and Cygna Labs will have sole discretion as to whether and how to implement such Suggestions into the Service.
15. GENERAL PROVISIONS.
All notices under this Agreement shall be made in writing and delivered to each party at the address under its signature hereto. Notices shall be deemed delivered (i) upon personal delivery with signature required, (ii) one Business Day after they have been sent to the recipient by reputable overnight courier service (charges prepaid and signature required), or (iii) upon successful transmission of an email containing such notice if sent between 9 a.m. and 5 p.m., local time of the recipient, on any Business Day, and as of 9 a.m. local time of the recipient on the next Business Day if sent at any other time, or (iv) three Business Days after deposit in the mail. “Business Day” as used in this Section 15.1 shall mean any day other than Saturday, Sunday or a day on which banking institutions are not required to be open in the Commonwealth of Massachusetts.
15.2 Entire Agreement.
This Agreement, including all Orders and any exhibits or attachments referenced herein, represent the entire agreement between Customer and Cygna Labs with respect to the subject matter hereof, and supersedes all prior proposals, representations and agreements, whether written or oral, with respect thereto. This Agreement shall govern with respect to all Orders and forms of purchases, whether submitted through electronic transmissions or otherwise, unless otherwise agreed by both parties in writing. Unless the Order expressly amends this Agreement, the terms and conditions of this Agreement shall take precedence over any conflicting terms in the Order. Any waiver, amendment, or modification of any right or remedy, in whole or in part under this Agreement, or any additional or different terms in any purchase orders, acknowledgments or other documents other than the Order, will not be effective unless expressly agreed to by both parties in writing or electronic form. If Customer issues a purchase order in connection with an Order, such purchase order shall be solely for Customer’s internal administrative purposes and to facilitate payment. In no event shall the terms of such purchase order modify or become part of these Terms of Service or become binding on Cygna Labs even if Cygna Labs signs an acknowledgment copy of such purchase order.
15.3 Assignment and Subcontractors.
Except as expressly provided for herein, this Agreement may not be assigned by either party without the prior written consent of the other party, including by reason of a change of control or by operation of law. Cygna Labs may assign this Agreement, without consent, in whole (but not in part), to a successor in interest to its business including in connection with a change of control, merger, acquisition, sale of all or substantially all of its assets, or similar transaction. Cygna Labs may use subcontractors in connection with the performance of the Services provided that it shall be responsible for the acts and omissions of its subcontractors to the same extent as it would be responsible hereunder for its own acts and omissions. The terms of this Agreement shall be binding upon the permitted successors and assigns of each party.
15.4 Governing Law.
The terms of this Agreement shall be construed in accordance with the substantive laws of Delaware without regard to its principles of conflict of law or the U.N. Convention on Contracts for the International Sale of Goods. The Uniform Computer Information Transactions Act (“UCITA”) will not apply to this Agreement regardless of when and howsoever adopted, enacted and further amended under the governing state laws.
15.5 Force Majeure.
Neither party shall be liable for any breach of this Agreement to the extent that such breach arises from factors outside its reasonable control. Customer’s subscription to the Services is predicated on Customer’s use of cloud computing services provided by a third-party cloud service provider, and Cygna Labs will not be responsible for the acts or omissions of Customer’s cloud service provider.
It is intended that this Agreement shall not violate any applicable law and the unenforceability or invalidity of any provision (other than the provisions obligating Customer to make payments to Cygna Labs) shall not affect the force and validity of the remaining provisions and such provisions determined to be invalid shall be deemed severed from this Agreement and, to the extent possible, be replaced with terms which as closely as possible approximate the interest and economic intent of such invalid provisions.