Terms and Conditions of Use

  

READ THIS AGREEMENT CAREFULLY.

Cymbo Systems, Inc. (“Cymbo”)  is willing to provide Cymbo Products or Services to you only if you accept all of the following terms and conditions, the Cymbo Privacy Policy, as well as any other operating rules, policies, price schedules, and other supplemental documents Published by Cymbo from time to time, all of which are incorporated herein by reference (collectively, "Terms and Conditions of Use" or "this Agreement").

            1.         Definitions.     The following terms shall have the following meaning as used in these Terms and Conditions of Use:

"Data" includes any data you access, upload, store, or back up through Use of the Cymbo Products or Services and any related data that are in the possession of Cymbo or Cymbo Affiliates.

"Cymbo," "we," "us," or "our" (whether or not capitalized) mean Cymbo Systems, Inc. and its subsidiaries.

"Cymbo Affiliate" means persons or entities who have provided products, licenses, or services to Cymbo and persons or entities with which Cymbo has entered into an agreement to sublicense or to provide Cymbo Products or Services to users.

"Cymbo Products or Services" means data services, including uploading or downloading Data; websites (including without limitation, www.Cymbo.com); web hosting; use of ftp uploading and download features; all other documentation, features, tools, and any service provided by Cymbo for real estate agents, attorneys, brokers, title companies, mortgage brokers, mortgage lenders, title and escrow officers, and any other person providing similar services; and any other products or services provided by Cymbo or its authorized agents, distributors, and licensees.

"Computer" (whether or not capitalized) means a desktop or laptop computer, network device, and any storage device attached to them in any fashion.

"Days" (whether or not capitalized) means calendar days.

"Personal Information" means information that you may provide at the time of registration or otherwise, such as name, physical location or address, IP address, e-mail address, employment, or similar information that identifies you as a specific individual. 

To "Publish" documents or information means to provide to or make them accessible to you by mailing, emailing, desktop messaging, faxing, or delivering them to you, or by posting them to www.Cymbo.com or any other website you visit to register for, subscribe to, license, buy, or Use Cymbo Products or Services.

The "Subscription Period" for any license or subscription to use Cymbo Products or Services begins at purchase, regardless of the date of activation, and expires at the end of your specific purchased term. A specific purchased term may be monthly, yearly, multi-year or for another periodic metric. For example, if you are billed on a monthly basis, your Subscription Period is for the month billed.

To "Use" or "Using" Cymbo Products or Services means each time you visit a Cymbo website, register with Cymbo, download Cymbo Software, logon to Cybmo Services, use Cymbo Software to encrypt, upload, or back up data, view the status of your Data, or access any Data or request support.

"You," "yourself", "user," “subscriber,” and "customer" (whether or not capitalized) refer to the individual or legal entity registering for or using the Cymbo Products or Services.

2. Acceptance of Terms and Conditions of Use; Modification; Cancellation

By registering to Use Cymbo Products or Services, and each time you Use a Cymbo Product or Service, you affirm your acceptance of these Terms and Conditions of Use and agree to comply with them now and throughout the period of your Use of the Cymbo Products or Services and thereafter, as noted in Section 6 (Cymbo Subcription to You; Renewals, etc.) below. If you do not agree to these Terms and Conditions of Use in their entirety, do not Use Cymbo Products or Services.

Cymbo may change the Terms and Conditions of Use at any time, without prior notice to you, and in its sole discretion. The new or modified Terms and Conditions of Use will be effective immediately after we publish them on our website at www.Cymbo.com.

If you do not agree to be bound by Cymbo’s Terms and Conditions of Use as Published by Cymbo from time to time, your sole and exclusive remedy is to discontinue using Cymbo Products or Services.

If you wish to cancel your Cymbo subscription after a change in the Terms and Conditions of Use, you must do so in writing or by email within thirty (30) days after your next Use of a Cymbo Product or Service following the change in the Terms and Conditions of Use. All paid subscription fees paid are nonrefundable.  Any prepaid fees can be applied to a lesser or limited service or subscription.  You acknowledge and agree that if you do elect to cancel your subscription within this specified period after a change in the Terms and Conditions of Use, or if you cancel your subscription or fail to renew an expired or terminated subscription for any reason, Cymbo may delete any information that Cymbo has obtained through your Use of Cymbo Products or Services, including without limitation, your  Data, and Cymbo will not have any Data available for your Use.

3. Requirements for Registration or Use of Cymbo Products

Cymbo Products or Services are intended and offered only for lawful Use by individuals or organizations with the legal capacity and authority under applicable law to enter into a contract for such products or services. Cymbo does not offer Cymbo Products or Services to minors or where prohibited by law. Cymbo does not offer Cymbo Products or Services to any User who, by state, federal, or other applicable law, does not have the required or applicable license or similar authorization.  By registering for and/or by Using Cymbo Products or Services, you represent and warrant that you have the legal capacity and authority to enter into a binding agreement to adhere to the Cymbo Terms and Conditions of Use and that you will Use Cymbo Products or Services only in accordance with these Terms and Conditions of Use and with all applicable laws, and that you have all applicable licenses or similar authorization related to your Use of Cymbo Products or Services.  If an individual is registering or Using Cymbo Products or Services on behalf of an entity or organization, that individual warrants, represents, and covenants to Cymbo that such individual is duly authorized to agree to these Terms and Conditions of Use on behalf of the organization and to bind the organization to them. If an individual uses Cymbo Products or Services that are provided by any third party including any person, entity or organization, the individual Using the Cymbo Products or Services, by virtue of such use, agrees that any information the individual provides to Cymbo (including but not limited to the individual's  Data and Personal Information) will be accessible to, and may be viewed, changed, or deleted by the person, entity or organization that provided the Cymbo Products or Services to the individual.

You agree to provide accurate and complete information when you register for a Cymbo Product or Service and you agree to keep such information accurate and complete during the entire time that you Use Cymbo Products or Services.

By Using Cymbo Products and Services you represent and warrant that you have complied with all applicable state and federal regulations applicable to a real estate agent, real estate broker, attorney, title company, mortgage broker, mortgage lender, title and escrow officer, and any other person providing similar services or related profession.  Using Cybmo Products and Services does not allow you to collect, recovery, or otherwise be paid a commission or any other compensation related to a sale of real estate if you are otherwise not entitled to receive such compensation under your applicable state laws and regulations.  Cymbo is not acting as a real estate broker, real estate agent, attorney, title agent, closing officer, escrow officer, or any other similarly defined position and assumes no duty related to your Use of Cymbo Products and Services related to such professions. 

We may ask you from time to time to establish a user name or password to access or Use the Cymbo Products or Services. You are solely responsible for any consequences arising in whole or in part out of your failure to maintain the confidentiality of your username and/or password.

4. Lawful Use of Cymbo Products or Services

You may not Use Cymbo Products or Services for any unlawful purpose.

Without limiting the foregoing:

(a) Cymbo Products or Services may not be Used to store, backup, or distribute child pornography and may not be Used in violation of U.S. export control laws or the export or import regulations of other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain licenses to export, re-export, or import as may be required.

(b) You may not Use Cymbo Products or Services if you are a citizen, national, or resident of, or are under control of, the government of Cuba, Iran, Sudan, Libya, North Korea, Syria, or any other country to which the United States has prohibited export. Each time you Use Cymbo Products or Services you represent, warrant, and covenant that:

(i) You are not a citizen, national, or resident of, nor under the control of, any such country to which the United States has prohibited export; (ii) You will not download or otherwise export or re-export the Cymbo Software, directly or indirectly, to the above mentioned countries nor to citizens, nationals or residents of those countries; (iii) You are not listed on the U.S. Department of Treasury's Lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, the U.S. Department of State's List of Statutorily Debarred Parties, or the U.S. Department of Commerce's Denied Persons List, Entity List, or Unverified List Table of Denial Orders; (iv) You will not download or otherwise export or re-export the Cymbo Products and Services, directly or indirectly, to persons on the above mentioned lists; (v) You will neither Use nor allow the Cymbo Products or Services to be Used for, any purposes prohibited by United States federal or state law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical, or biological weapons of mass destruction; (vi) The Cymbo Products and Services will not be exported, directly, or indirectly, in violation of these laws, nor will the Cymbo Products or Services be Used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation; (vii) You are not using or permitting others to Use Cymbo Products or Services to create, store, backup, download, upload, distribute, or provide access to child pornography; and (vii) You are not Using or permitting others to Use Cymbo Products or Services to violate any trademark or copyright laws of any jurisdiction

5. Changes to the Cymbo Products or Services

Cymbo has the right at any time to change, modify, add to, discontinue, or retire any Cymbo Product or Service and any aspect or feature of the Cymbo Products or Services including, but not limited to, website interface and features, hours of availability, equipment needed for access or Use, the types of files that are uploaded and download, the maximum disk space that will be allotted on Cymbo servers on your behalf either cumulatively or for any particular service, or the availability of Cymbo Products or Services on any particular device or communications service.

Cymbo will provide notice of material changes to the Cymbo Products or Services or changes to this Agreement by posting them to www.Cymbo.com. Cymbo shall have no obligation to provide you with notice of any such changes in any other manner. It shall be your responsibility to check our website periodically to inform yourself of any such changes.

From time to time, Cymbo may issue new releases, revisions, or enhancements to the Cymbo Products or Services available to you free of charge or for a fee. New releases, revisions or enhancements may be licensed, downloaded, and installed only to the extent that you hold a valid license or subscription to Use the Cymbo Products or Services being updated or upgraded, and you may Use them only in accordance with the then-current Terms and Conditions of Use and any additional license or subscription terms that may accompany them.

If any automatic updates involve the payment of additional fees, we will provide you with the opportunity to approve such fees prior to the new functionality being enabled. If you fail or refuse to approve such fees, Cymbo may, in its sole discretion, terminate your current subscription, continue to support your current Cymbo Products or Services without the automatic update, or replace your Cymbo Products or Services with other Cymbo Products or Services. If Cymbo terminates your current subscription on account of your failure or refusal to approve such fees, then any Cymbo fee shall be nonrefundable.  If Cymbo updates the Cymbo Products or Services without requiring an additional fee and you object to such change, your sole remedy shall be to terminate your use of the Cymbo Products and Services, at such time all fee are nonrefunable

These Terms and Conditions of Use (including any documents incorporated by reference) constitute the entirety of the agreement between us and you concerning the subject matters discussed herein. This Agreement supersedes any prior written or oral representations, understandings, or agreements, and may not be modified except by the posting of changes to www.Cymbo.com as provided in this Section 5. No written or oral statement, understanding, representation, or alleged agreement made outside the Terms and Conditions of Use posted to www.Cymbo.com may be used to modify, interpret, add to, supersede, or construe the terms of this Agreement, except by means of a written agreement signed by an officer of Cymbo.

6. Cymbo Subscription to You; Renewals, Modifications, Limits

(a) Scope of Subscription. Cymbo grants you a non-exclusive, non-transferable limited and revocable subscription to use Cymbo Products and Services only in such a manner in  for which you have paid the applicable fees and taxes and from which you are subscribed to access the Cymbo Products or Services, and to Use the Cymbo Products or Services for the sole and exclusive purposes of connecting to and Using the Cymbo Products or Services for your personal or internal business purposes in accordance with these Terms and Conditions of Use. We reserve all other rights to the Cymbo Products or Services.

You may Use a subscription for the Cymbo Products or Services. The type of subscription you have (including such variables as  the number of users, agents, brokers, employees, etc., whether the subscriptions fees are based on the number of users, volume of data, or both, and the length of the Subscription Periods, etc.) is set forth as part of the Cymbo Product or Service description available at www.Cymbo.com.

You may not sub-license, or charge others to Use or access the Cymbo Products or Services and you may not redistribute the Cymbo Products or Services or provide others with access to or Use of them, unless you have entered into a separate Reseller Agreement or other agreement with Cymbo that expressly authorizes you to engage in this activity. Without limiting the forgoing, you will not permit unauthorized users to Use the Cymbo Products or Services to access or decrypt data stored on servers provided by Cymbo or Cymbo Affiliates; you will not Use or permit unauthorized  to Use the Cymbo Products or Services to decrypt data encrypted by others; and you will not Use or permit others to Use the Cymbo Products or Services to provide encryption or decryption services to others, whether or not such services are compensated. 

(b) Trial Subscription. You may have received as part of your Cymbo subscription the opportunity to extend the expiration date of your subscription or trial through the Use of various marketing codes. If you do not enter these codes at the time you purchase your subscription or start your trial subscription, Cymbo will not add this additional time to your subscription or trial at a later date. 

If you received a free trial or evaluation subscription for which you have not paid a subscription fee, Cymbo grants to you a non-exclusive, non-transferable limited subscription to Use the Cymbo Software during the trial or evaluation period in accordance with these Terms and Conditions of Use.

(c) Renewals. You agree that Cymbo shall have the right to automatically and without notice renew your subscription to continue to Use the Cymbo Products or Services upon expiration of your then-current subscription, and that as part of such renewal Cymbo shall have the right to charge the applicable renewal fees and any applicable taxes, which may be different than those you paid when you initially purchased or last renewed your subscription for Cymbo Products or Services to any credit card you used to purchase your then-current subscription. You agree that if you elect to not permit Cymbo the right to automatically renew your subscription to Use Cymbo Products or Services or your credit card information on file with Cymbo does not permit automatic renewal, then Cymbo may terminate your subscription if you do not otherwise renew your subscription. 

(d) Cancellation of Renewals.

You may cancel a renewal of a subscription only on the following terms:

You may not Use Cymbo Products or Services for any unlawful purpose.

If you wish to cancel, discontinue, or terminate you subscription and use of Cymbo Products and Services, you must notify Cymbo a minimum of thirty (30) days before the end of your then current subscription period.  If you fail to provide thirty (30) days  notice prior to the end of your then current subscription period, your subscription will automatically renew as provided herein and your notice will be effective at the end of the subsequent renewal subscription period.  You will not be eligible for any refund for any monies paid to Cymbo for each subscription period. You shall be required to pay for all Cymbo fees until the end of your then current subscription period. 

All monies due Cymbo for subscriptions which are paid in arrears, whether or not invoiced, are payable in full when invoiced.

Should you fail to pay amounts invoiced and due within seven (7) days of being invoiced, or should your payment be otherwise rejected or denied, then Cymbo may at its sole discretion begin collection proceedings to recover any and all amounts due. All payments are due on the first day of the month.  Payments received after the 5th day of the month are subject to a late fee of $25.00 or 10% of the monthly subscription, whichever is greater.  Failure to make required payments may result in your subscription or use of Cymbo Products and Services being suspended on the 15th day of the month.  Suspended accounts will still continue to accrue applicable account maintenance fees or any other fees. 

 

Should Cymbo elect to refer your past due obligations for collection proceedings you will also become responsible for any costs associated with said collections and shall pay Cymbo the greater of the then permissible interest rate on the past due balance or 1.5% per month calculated and due on a monthly basis.

You are responsible for ensuring that Cymbo has current and accurate records necessary, to renew your subscription, including without limitation, credit card data.

(e) Upgrades. Cymbo may in its sole discretion provide automatic upgrades to the Cymbo Products or Services. These upgrades may not be consistent across all platforms and computers; and the performance and features offered by Cymbo may vary depending on your computer and other equipment.

(f) Refunds. By purchasing a subscription, you acknowledge that you are aware of the opportunity to "try before you buy" by using a free or evaluation Cymbo Product or Service. Cymbo does not offer any refunds for purchases of Cymbo Products or Services, except as expressly provided in this Agreement. Should you purchase a Cymbo Product or Service that does not offer a free or evaluation opportunity you may request a refund for monies paid within three (3) days of having first accessed or Used said Cymbo Product or Service.

(g) Duration of Agreement. You agree that you shall be bound by these Terms & Conditions of Use beginning on the earlier of when you first use Cymbo Products or Services or when you first agree to the Cymbo Terms and Conditions of Use until the later of the dates when (i) your subscription and any renewal thereof terminates, ii) your Data is deleted, or iii) you have your last contact with Cymbo for customer support.

7. Assignment and Delegation by Cymbo

Cymbo may, in its sole discretion, transfer or assign all or any part of its rights in, the Cymbo Products or Services, and any subscription or contract related thereto, and may delegate all or any portion of its duties, if any, under any such Cymbo Products or Services, subscriptions, or other contracts.

8. No Transfers or Modifications by You

You may not sell, assign, grant a security interest in or otherwise transfer any right in the Cymbo Products or Services, nor incorporate them (or any portion of them) into another product or service. You may not copy the Cymbo Products or Services. You may not translate, reverse-engineer or reverse-compile or decompile, disassemble, make derivative works from, or otherwise attempt to discover any source code in the Cymbo Software or decrypt any files that are not associated with your computer.

You may not modify the Cymbo Software or use it in any way not expressly authorized by these Terms and Conditions of Use. You may not obtain the communications protocol for accessing the Cymbo Products. You may not authorize or assist any third party to do any of the foregoing.

9. Protection of Files

You are solely responsible for protecting the information on your computer such as by installing anti-virus software, updating your applications, password protecting your files, and not permitting third party access to your computer. You understand that the Cymbo Products or Services may back-up files that are no longer usable due to corruption from viruses, software malfunctions or other causes. This might result in you restoring files that are no longer usable.

10. Retention or Deletion of  Data and Personal Information

Cymbo Products and Services saves Data to a server operated by Cymbo or a Cymbo Affiliate an encrypted copy of each file you designate. Cymbo does not maintain a secondary copy of your data that you have uploaded to our servers. Should your data be lost by Cymbo we will undertake commercially reasonable efforts to create a replacement from the files stored on your computer or with Cymbo.  If your license or subscription to Use Cymbo Products or Services expires, is terminated, is not renewed, or is otherwise discontinued for any reason, Cymbo and the Cymbo Affiliates may, without notice, delete or deny you access to any of your Data that may remain in our possession or control and may prevent access to Cymbo Products or Services.  You agree that should you desire to access any Data stored with Cymbo you will pay online storage and access fees from the date of termination, cancellation, or nonrenewal until the date which you desire to access the Data, even though you may not have had access to other Cymbo Products or Services during that time. 

You agree that Cymbo and Cymbo Affiliates may retain (but shall have no obligation to retain) your Data for a period after your trial or subscription has been terminated, expired, or otherwise lapsed, as part of Cymbo's marketing to you of the opportunity to purchase, renew, or extend a subscription, or to comply with applicable state, federal, or other laws related to retention of real-estate related transactional documents. You also agree that Cymbo may retain your Personal Information and related account information for a reasonable time after your subscription has been terminated.

11. Subscriber Support

Cymbo may, in its sole discretion, provide customer support or service to you. This service may be available only on selected days and during a limited number of hours. Service may also only be made available through certain delivery vehicles such as email or telephone and some services may only be available for the payment of an additional fee or charge. As part of the delivery of services, Cymbo may employ a variety of tools to aid in the process of resolving your issues as a user. You grant Cymbo the right to use these tools and hold Cymbo harmless for the use of these tools as well as the guidance provided by its customer support staff who, you acknowledge, cannot be fully aware of all of the complexities associated with the Cymbo Products or Services, your computer, or all of the related or associated infrastructure that may affect the performance of your systems or the encryption and backup of your files. You agree and understand that certain programs, applications or utilities will require configuration in order to access data restored from your Cymbo Products or Services and that Cymbo has no obligation to assist, and may not be able to assist, you with such configurations.

12. Restrictions on Access to Cymbo Products or Services

You may access Cymbo Products or Services only through the interfaces and protocols provided or authorized by Cymbo. You agree that you will not access Cymbo Products through unauthorized means, such as unlicensed software clients. You agree not to circumvent any security measure implemental to access Cymbo Products or Services though unauthorized means. 

13. Communications

You are responsible for obtaining and maintaining all of the hardware, software, and services that you may need to access and Use Cymbo Products or Services. Without limiting the foregoing, you must pay all charges, taxes, and other costs and fees related to obtaining your own Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by you to access Cymbo Products or Services.

14. Termination and Fair Use Policy

CYMBO SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF CYMBO PRODUCTS OR SERVICES TO USERS WHO ARE DEEMED BY CYMBO TO BE USING THE CYMBO PRODUCTS OR SERVICES IN A MANNER NOT REASONABLY INTENDED BY CYMBO OR IN VIOLATION OF LAW, INCLUDING BUT NOT LIMITED TO SUSPENDING OR TERMINATING A USER'S ACCOUNT WITH CYMBO AND THE SUBSCRIPTION TO USE THE CYMBO PRODUCTS OR SERVICES.

Cymbo Products or Services are designed to serve the needs of particular types of users. If you have purchased a Cymbo Product or Service that is inappropriate for your actual usage, Cymbo may require you to switch to an appropriate Cymbo Product or Service which may result in your having to pay Cymbo additional fees for use of the appropriate product or to terminate your purchased Cymbo Products or Services and refund, on a prorated basis, any fees paid you may have paid on the unused portion of your Cymbo subscription.

Cymbo may, in our sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of Cymbo Products or Services and to prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network resources and to take such technical and other remedies as we deem appropriate. Your consumption of Cymbo Products or Services may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of Cymbo's customers, generally. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan or Cymbo Product or Service that will permit you to continue to use Cymbo Products or Services. Although violations of this policy have been infrequent, we reserve the right to terminate or suspend your subscription to Use Cymbo Products or Services and any subscription to use the Cymbo Software, without prior notice in the event of a violation of this policy.

15. Data Collection, Uploading, Downloading, Encryption, Privacy, and Disclosure

Cymbo will collect and use Personal Information in accord with the terms of our Privacy Policy, which is incorporated into and made a part of these Terms and Conditions of Use. You hereby consent to Cymbo's use of your Personal Information under the terms of the Cymbo Privacy Policy, as it may be amended from time to time.

ALL FILES UPLOADED TO CYMBO WILL REQUIRE A CONFIRMATION PROCESS FOR UPLOADS.  CYMBO IS NOT RESPONSIBLE FOR THE FAILURE OF ANY DOCUMENT OR ANY DATA TO UPLOAD TO CYMBO UNLESS THE CONFIRMATION PROCESS IS COMPLETED AND YOU RECEIVE A CONFIRMATION NUMBER FROM CYMBO OF THE UPLOAD.  IF A CONFIRMATION NUMBER IS NOT RECEIVED BY YOU, THE DATA WAS NOT UPLOADED AND IS NOT STORED AT CYMBO.  CYMBO ASSUMES NO RESPONSIBILITY FOR ANY DATA NOT PROPERLY UPLOADED BY YOU OR DATA FOR WHICH YOU DO NOT HAVE A CONFIRMATION NUMBER.

The contents of your files are encrypted. Cymbo may have the ability to decrypt your data files. However, Cymbo will not decrypt your files unless i) it reasonably believes that it must do so to troubleshoot problems with the Cymbo Services or ii) it reasonably believes it must do so in order to comply with a law, subpoena, warrant, order, or regulation, including, without limitation, the requirement of a certification that complies with 18 U.S.C. § 2703. Cymbo may also provide access to your data to government authorities if Cymbo suspects or believes that the data contains child pornography or other prohibited data or that the data is being used for illegal purposes. You acknowledge that Cymbo or Cymbo Affiliates may use servers and other equipment to provide the Cymbo Products or Services that are located in the United States or in other countries where litigants, law enforcement, courts, and other agencies of the government may have the right to access data stored within their jurisdictions upon terms and conditions provided by local law, and that as a result, they may gain access to your Backup Data as provided by applicable local law.

You may elect to Use Cymbo Products or Service that permit you to decrypt and download Data from any Internet enabled computer. You understand that by electing to access your files from a computer other than the one you used to upload Data that this may cause the contents of these files to become accessible to individuals other than you and that you accept this risk. You further acknowledge that depending upon the Cymbo Product or Service you use or the features of the Cymbo Product or Service you use, accessing your  Data from any Internet enabled computer may not be possible.

16. Warranties

(a) WARRANTY. Cymbo warrants that the Cymbo Products or Services will perform substantially as specified in the applicable Cymbo documentation for a period of thirty (30) days from the date of registration or payment. If you satisfactorily demonstrate to Cymbo within such thirty (30) day period that a Cymbo Product or Service contains errors, then as Cymbo's sole and exclusive liability and as your sole and exclusive remedy, Cymbo shall at its sole option either use commercially reasonable efforts to correct the errors reported by you, replace the Cymbo Product or Services affected with a substantially conforming product or service, or refund the fee you paid for the Cymbo Product or Service and terminate your subscription under the Terms and Conditions of Use. No other claim of liability may be made by you.  Cymbo does not warrant the results of its correction or replacement Cymbo Products or Services. Correction or replacement under this Section 16 (Warranties), and the issuance of any corrections, patches, bug fixes, workarounds, upgrades, enhancements, or updates by Cymbo to you, shall not be deemed to begin a new, extended, or additional subscription, Subscription Period, or warranty period.

(b) DISCLAIMER OF OTHER WARRANTIES. THE LIMITED WARRANTY IN THE PRECEDING PARAGRAPH IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. Cymbo and the Cymbo Affiliates do not warrant that the functions contained in the Cymbo Products or Services will meet your requirements, that the operation of the Cymbo Products or Services will be uninterrupted or error-free, or that defects in the Cymbo Products or Services will be corrected. Cymbo and Cymbo Affiliates do not warrant or make any representations regarding the use or the results of the use of the Cymbo Products or Services in terms of their correctness, accuracy, reliability or otherwise. Cymbo and Cymbo Affiliates do not represent or warrant that users will be able to access or use the Cymbo Products or Services at times or locations of their choosing, or that Cymbo and Cymbo Affiliates will have adequate capacity for any user's requirements. No oral or written statement, information or advice given by Cymbo, Cymbo Affiliates, or their respective employees, distributors, dealers, or agents shall create any warranties in addition to those express warranties set forth in this Section 16 (Warranties). You may have other statutory rights. However, to the full extent permitted by law, the duration of statutorily required warranties, if any, shall be limited to the warranty period.

17. Limitation of Liability

With respect to defects or deficiencies in the Cymbo Products or Services, the liability of Cymbo and Cymbo Affiliates will be limited to performance of its responsibilities under Section 16 (Warranties) above. With respect to other breaches of contract, the liability of Cymbo and Cymbo Affiliates shall be limited to your actual damages with respect to the computer affected by the breach, and in no event will such liability exceed the total amount received by Cymbo from you under these Terms and Conditions of Use for your current Subscription Period (this amount shall not exceed one year’s subscription fees). By Using Cymbo Products and Services you agree that this amount is sufficient liquidated damages and shall not assert a claim in excess of this liquidate damages amount.

 IN NO EVENT WILL CYMBO, CYMBO AFFILIATES, THE CYMBO CONTRACTORS, CYMBO DISTRIBUTORS OR CYMBO SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE CYMBO PRODUCTS OR SERVICES OR TO USE OR RETRIEVE ANY  DATA, WHETHER FOR BREACH OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT, OR ON ANY STRICT LIABILITY THEORY, EVEN IF CYMBO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES OR A REMEDY SET FORTH IN THESE TERMS OF USE IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.

Neither Cymbo nor any Cymbo Affiliate assumes any liability to any party other than you arising out of your Use or inability to Use the Cymbo Products or Services. The limitations of damages set forth above are fundamental elements of the bargain between Cymbo and you. Cymbo would not be able to provide the Cymbo Products or Services to you without such limitations.

18. Indemnification

YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS CYMBO, CYMBO AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES, ARISING OUT OF YOUR USE OF THE CYMBO PRODUCTS OR SERVICES AND/OR YOUR VIOLATION OF ANY TERM OF THESE TERMS AND CONDITIONS OF USE.

Should you bear financial responsibility for payment to Cymbo for Cymbo Products or Services or have otherwise made payment for Cymbo Products or Services, you agree to indemnify any Users of Cymbo Products or Services that you have paid for with respect to any and all matters. If you are a beneficiary of another party having paid for said Cymbo Products or Services, whether or not the paying party(s) is a user of Cymbo Products and Services, your sole source of recourse, for any and all claims, is to the party that bears financial responsibility to Cymbo for Cymbo Products and Services.

CYMBO RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU. IN THAT EVENT, AND ONLY IN SUCH EVENT, YOU SHALL HAVE NO FURTHER OBLIGATION TO PROVIDE A DEFENSE FOR CYMBO IN THAT MATTER. If Cymbo chooses to provide its own defense in connection with any matter subject to indemnification under these Terms and Conditions of Use, you shall participate and cooperate in the defense of Cymbo and Cymbo Affiliates, at your own expense, to the full extent requested by Cymbo.

19. Trademarks, Service Marks, and Other Intellectual Property

All trademarks, service marks or other similar items appearing on the Cymbo Products or Service are the property of their respective owners, including, without limitation, Cymbo Systems, Inc.

The Cymbo Products or Services are protected by copyright and other intellectual property laws, title, ownership rights, and intellectual property rights in the Cymbo Products or Services and shall remain with Cymbo and its licensors. You agree not to take any action to jeopardize, limit, or interfere in any manner with Cymbo's or its licensor's ownership of or rights with respect to the Cymbo Products or Services.

20. High Risk Activity

You acknowledge and agree that the Cymbo Products or Services are not intended for use with any high risk or strict liability activity, including, without limitation, air or space travel, technical building or structural design, power plant design or operation, life support or emergency medical operations or uses, and that Cymbo makes no warranty and shall have no liability arising from any Use of the Cymbo Products or Services in any high risk or strict liability activities.

21. Dispute Resolution, Arbitration, Governing Law, and Venue

(a) Arbitration of Disputes. All disputes arising under or relating to this Agreement shall be resolved by final and binding arbitration conducted before a single arbitrator.  Evidentiary hearings and any other proceedings requiring personal attendance of parties or their representatives or witnesses shall be conducted in Salt Lake County, State of Utah.  These Terms and Conditions of Use are governed by Utah law. 

(b) Exceptions to Agreement to Arbitrate. Notwithstanding the provisions of Subsections 21(a) (Arbitration of Disputes), disputes pertaining to i) export controls, ii) unlawful Use of the Cymbo Products or Services,  iii) the scope, applicability, or compliance with governmental or court-ordered access to or limits on use of  Data, and (iv) disputes regarding unpaid fees or subscription amounts due to Cymbo, shall not be resolved by arbitration, but shall instead by resolved by reference to a judicial or administrative body with jurisdiction over the dispute.

(c) Costs of Arbitration. The administrative expenses, arbitrator fees, and facility charges associated with the arbitration shall be split equally between the parties.  Each party shall be solely responsible for its attorney fees, expert witness fees, and other costs, fees, and expenses, except as may otherwise be provided in Section 18 (Indemnification).

22. Termination, Expiration, Cancellation

(a) Trial and Evaluation Subscriptions. If this Agreement pertains to a trial, beta, or evaluation, the subscription granted under these Terms and Conditions of Use will terminate upon the expiration or cancellation of the trial or evaluation period, when the Cymbo Product or Service you are using is no longer made available, or when Cymbo cancels or terminates the subscription, whichever is shorter. You agree to Use the Cymbo Products or Services for no longer than the trial or evaluation period unless you enter into another subscription and pay a subscription fee and associated taxes as applicable.

(b) All Other Subscriptions; Limited Term. Your subscription will end upon the sooner to occur of (i) expiration of your Subscription Period, (ii) upon your non-renewal of the subscription as provided herein, (iii) upon your cancellation of the subscription as provided herein, (iv) when Cymbo elects to discontinue the product, (v) upon your breach of these Terms and Conditions of Use (if such breach is not cured within the time indicated below in this Section 22 (Termination, Expiration, Cancellation), or (vi) when Cymbo cancels or terminates your subscription, (any such expiration, cancellation, discontinuation, or termination are referred to hereafter as "termination").

(c) Termination for Unlawful or Abusive Use, Other Breach. Cymbo may block your access to your Data and/or terminate your Use of the Cymbo Products or Services if Cymbo reasonably believes that the Data may contain child pornography or is being used to support other types of illegal activities, if providing Cymbo Products or Services to a person located in a particular country would violate U.S. or other applicable law, or if your continued Use of Cymbo Products or Services may damage, disable, overburden, or impair our servers or networks.

If you breach these Terms and Conditions of Use, your right to Use the Cymbo Products or Services shall automatically terminate if you fail to cure the breach within seven (7) days after notice from Cymbo or any of the Cymbo Affiliates, unless your breach is due to violations of Section 4 (Lawful Use), Section 8 (No Transfers or Modifications by You), Section 18 (Indemnification), or Section 19 (Trademarks), in which case termination will be without notice and without any right to cure.

Upon termination: i) you shall immediately cease any and all Use of the Cymbo Products or Services; ii) the Cymbo Products and Services may be disabled by Cymbo without notice to you; and iii) you will no longer have the right to access or retrieve your Data; you hereby grant Cymbo at its sole discretion the unrestricted right to delete or retain all such Personal Information and Data at any time after termination, without notice, as allowed under applicable law.

23. Survival

In the event of any termination, expiration, or cancellation, the restrictions on your Use of the Software and the other applicable restrictions as set forth in Section 4 (Lawful Use), Section 6 (Cymbo Subscription), Section 8 (No Transfers or Modifications by You), Section 16 (Warranties), Section 17 (Limitation of Liability), Section 18 (Indemnification),Section 19 (Trademarks, Service Marks, and Other Intellectual Property), Section 20 (High Risk Activity), Section 21 (Dispute Resolution, Governing Law, Venue), Section 23 (Survival), Section 24 (Notice), Section 27 (Limitation on Actions), Section 29 (Miscellaneous) and Section 30 (Severability) shall survive such termination, expiration, or cancellation, and you agree to remain bound by those terms.

24. Notice

Any notice that may or must be given by Cymbo in connection with this Agreement or in connection with the Use of the Cymbo Products or Services, may be given by sending it to the email address(s) provided by you upon registering for the Cymbo Products or Services or as you may provide from time to time thereafter by modifying your user profile at www.Cymbo.com. You are responsible for ensuring that your accurate email address is available to Cymbo and provide any needed updates. Cymbo may, in its sole discretion, use other means of providing notice, such as: desktop notification; regular, certified, or registered mail; fax; commercial delivery service; or messenger. All such notices shall be deemed given when dispatched with payment of delivery charges made or arranged. You hereby consent to receiving notice by any such means. Notwithstanding the foregoing, Cymbo has no obligation to provide notice or attempt to locate a customer other than through the email address provided.

25. English Language

These Terms and Conditions of Use were negotiated and written in English. Any inconsistency between the Terms and Conditions of Use as expressed in English and any other language shall, to the full extent permitted by applicable law, be resolved by reference to the English version.

26. Entire Agreement; Applicability of Terms; Construction; Limit to Modifications; Conflicts in Terms

These Terms and Conditions of Use (including the items incorporated by reference and modifications that may be made from time to time), constitute the entire agreement between Cymbo and you regarding Cymbo Products or Services, and supersedes all prior agreements between you and Cymbo regarding the subject matters hereof.

Any item or service furnished by Cymbo in furtherance of these Terms and Conditions of Use, although not specifically identified in them, shall nevertheless be covered by these Terms and Conditions of Use unless specifically covered by some other agreement entered into in written or electronic form between you and us.

Any modification or change in these Terms and Conditions of Use proposed or offered by you shall not become a part of these Terms and Conditions of Use unless accepted in a writing dated after the effective date of the applicable Terms and Conditions of Use and signed by an authorized officer of Cymbo.

Should there be any conflict in terms between this Agreement and any other document, the terms and conditions set forth in this Agreement shall govern.

Any references that are singular or plural and any references that are masculine, feminine, or neuter in gender, are meant to be used interchangeably as the context of the sentence might imply.

27. Limitation on Actions

Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty, or right arising under this Agreement or by law must be commenced within one year after the cause of action accrues.

28. Copyright Infringement Notification

As provided in the Digital Millennium Copyright Act of 1998, we have designated the following individual for notification of potential copyright infringement regarding Web sites hosted by Cymbo: support@Cymbo.com If you believe content hosted by Cymbo infringes a copyright, please provide the following information to the person identified above (17 U.S.C. § 512): (i) A physical or electronic signature of the copyright owner or authorized agent; (ii) Identification of the copyrighted work(s) claimed to have been infringed; (iii) Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) Information regarding how we may contact you (e.g., mailing address, telephone number, e-mail address); (v) A statement that the copyright owner or its authorized agent has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and made under penalty of perjury, and, if an agent is providing the notification, a statement that the agent is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

29. Miscellaneous

You agree to reimburse Cymbo for any costs or fees related to its enforcement of this Agreement, including without limitation the expert fees and attorney fees regularly charged by the experts and legal counsel chosen by Cymbo.

Cymbo is not responsible for misprints, errors or omissions in its advertising and promotional materials.

If you have designated a person (whether by email, orally, by registering such person with Cymbo, by granting such person access to your username and password or by having your computer registered for Cymbo Products or Services where another party is paying for the backup of your files) to have access to your Backup Data, you hereby authorize Cymbo to give such designated person access to your Backup Data, including without limitation in the event of your death or incapacity.

30. Severability

This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (i) such provision will be interpreted, construed, or reformed to the extent reasonably required to render it valid, enforceable, and consistent with the original intent underlying such provision and ii) such invalidity or unenforceability will not affect the validity or enforceability of any other provision of this Agreement and all such provisions shall remain in full force and effect.

31. No Waiver

The Company reserves its right to take all legal steps available to enforce these Terms and Conditions of Use. The Company’s failure to enforce these Terms and Conditions of Use in every instance in which they might apply, or the failure to require at any time performance of any provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions or of the Company’s rights to enforce such provisions. No waiver of any provisions of this or any other Agreement with the Company shall be effective unless expressly stated to be such in writing and signed by both parties.

32. Billing Process

Some subscriptions for Cymbo Products or Services are based on the number of users registered, the volume of storage used, or both, as well as for ancillary or related services. Should Cymbo bill you for your Cymbo Product or Service on a monthly or periodic basis you agree that Cymbo will bill you exclusively in full month or periodic increments and that there will be no billing for partial months or periods for any reason. Any amounts billed are fully due and payable at the time the bill is rendered to you.

33. Billing Issues

You must notify us about any billing problems or discrepancies within sixty (60) days after they first appear on the statement you receive from your bank or credit card company or other billing company. Send such notification to us at the Cymbo Contact Information indicated in Section 35 (Cymbo Contact Information) below. If you do not bring such problems or discrepancies to our attention within that sixty (60) day period, you agree that you waive the right to dispute such problems or discrepancies.

34. Managing Your Cymbo Product or Service

You acknowledge and agree that where Cymbo allows an entity to use Cymbo Products or Services, or where an entity or organization makes the Cymbo Products or Services available to you, the entity or organization so licensed or giving you access may grant multiple individuals rights related to the management and Use of the Cymbo Products or Services and the Data, without any notice to you. These rights may enable one or more persons to: view, access or change Data or Personal Information; determine who can access the account, Data, and Personal Information; determine who is responsible financially for the account; and other similar actions.

35. Cymbo Contact information

If you have any questions or comments, please contact us at support@Cymbo.com. Although we strongly prefer email communication, you may also send regular postal mail to:


Cymbo Systems, Inc
6087 South Redwood Road Suite B
Salt Lake City, UT 84123