CyberSpara Terms of Service
These terms and conditions (the “Agreement”) set out the terms on which CyberSpara Inc., a Delaware corporation, (“CyberSpara”, “we”, “us” or “our”) provides access to and use of CyberSpara’s Digital-PASS platform, a simulation-based cybersecurity education platform (the “Service”) available on or through the website https://cyberspara.com (the “Site”) to you, a user of the Service (“you” or “User”). You should read this Agreement carefully. By indicating acceptance of this Agreement or by otherwise using the Service, you are entering into a legally binding agreement with us (and you hereby represent that you are of legal age, and are otherwise fully able and competent, to enter into a binding agreement). If you are using the Service on behalf of an organization, you represent that you have the right to bind such organization to this Agreement, and the terms “User” and “you” will include both you, the individual user, and such organization. If you do not agree to these terms and conditions, you must not use the Service.
THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND CYBERSPARA, AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.
1. Nature of the Service. The Service is a proprietary software-as-a-service platform, through which organizations can train their users in security awareness (the “Specified Purpose”). The Service uses gamification to educate users on privacy and security vulnerabilities commonly found on social media platforms. Organizations can customize features of the Service for their users and may receive PDF reports of users’ activities as they navigate the simulated social media environment.
2. Registration. In order to use the Service, if you are an administrator of your organization, you may be required to provide us with your first name, last name, title, name of organization, and email address, and to create a password and register with us. If you are an administrator you may also need to provide us with information in order to confirm, or permit us to confirm, any relationship between you and such organization. If you are an administrator, you represent and warrant to us that you will provide us with accurate, current and complete registration information. If you are an administrator, you may add Users to your organization’s account. Users will be identified by numbers and will not provide CyberSpara with personal information as part of the user registration process. All Users are responsible for their registration, and for all use of the Service using any User credentials or passwords issued to them or chosen by them. All Users must keep all such credentials and passwords confidential.
3. Fees. We offer the Service with paid subscription plans that allow you to choose the features or content you wish to access and use through the Service. CyberSpara will charge your credit card for the subscription fee then in effect when you subscribe, for the subscription package you order. All fees are nonrefundable. You agree and represent that all information you provide for the purpose of subscribing to the Service is accurate, complete and current, and you agree to notify CyberSpara of any changes to credit card information associated with your CyberSpara account, including changes in billing address and expiration dates. If you pay by credit card and CyberSpara does not receive payment from the issuer of the credit card associated with your CyberSpara account, you agree to pay all amounts due upon demand directly to CyberSpara, and CyberSpara further reserves the right to either suspend or terminate your CyberSpara account and your subscription to the Service in such circumstances. All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with the Service. You shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on CyberSpara’s income), which may be invoiced or charged by CyberSpara from time to time.
4. Our Ownership Rights. The Service, including all aspects of the Digital-PASS Platform and the Site (including Our Property, as defined below), is the property of, and owned by, CyberSpara or its licensors. All the software, algorithms, functionality, inventions, concepts, text, images, sound, music, videos, marks, logos, compilations, content and technology used to deliver the Service or otherwise embodied in, displayed through, or provided directly or indirectly (e.g., emails or other communications from us to you) via, the Service are “Our Property.” Except as otherwise expressly permitted by this Agreement, any use, copying, making derivative works, transmitting, posting, linking, deep linking, framing, redistribution, sale, decompilation, modification, reverse engineering, translation or disassembly of Our Property is prohibited. You acknowledge that Our Property has been created, compiled, developed and maintained by us at great expense of time and money such that misappropriation or unauthorized disclosure or use of Our Property by others for commercial gain would unfairly and irreparably harm us in a manner for which damages would not be an adequate remedy, and you consent to our obtaining injunctive relief to restrain any breach or threatened breach of this Agreement, without any requirement to post bond. You may be subject to criminal or civil penalties for violation of this paragraph.
The marks CYBERSPARA and DIGITAL-PASS, the CyberSpara logo, and any associated logos are registered or unregistered trademarks or service marks of CyberSpara or its licensors. You may not use them, or any of our other marks or logos, in any manner, including any use that is likely to cause confusion or that disparages or discredits us, without our consent. The Service may also feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.
Subject to the terms and conditions herein, we grant you the non-exclusive, non-sublicenseable, non-transferable, limited, revocable right to access and use Our Property solely to the extent necessary for you to use the Service for the Specified Purpose (as defined above), as permitted by this Agreement. We reserve all other rights. For clarity and without limiting other obligations herein, Users shall not distribute or otherwise commercialize Our Property.
a. Restrictions on Use of Content. Except as expressly prohibited, you are permitted to access and use the Service, subject to your agreement that: (i) the Service is offered, and your use of the information is permitted, for informational, instructional and non-commercial purposes only, and use for any other purpose is expressly prohibited by law, and may result in civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. You may not copy the design elements, look and feel, or layout of the Service. Those elements of the Service are protected by law, such as trade dress, trademark, unfair competition, and other laws, and may not be copied or imitated in whole or in part. No logo, graphic, video, sound or image from the Service may be copied or retransmitted unless expressly permitted by CyberSpara.
b. General Restrictions. You must not use the Service in a way that infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party; or introduce any software viruses, malware, spyware or any other code, file or program into the Service that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment. You must not (i) use the Service in any way that would violate any law or the rights of any person; (ii) except as otherwise expressly permitted by this Agreement, harvest or otherwise collect information about others from the Service; (iii) take any action that imposes or may impose an unreasonable or disproportionately large load on the Service or its infrastructure, or bypass any measures we may use to prevent or restrict access to any portion of the Service (or other accounts, networks or services connected thereto); (iv) use manual or automated software, devices, or other processes to “crawl”, “scrape” or “spider” any of the Service or otherwise to copy, obtain, propagate, distribute or misappropriate any information or other content from the Service, including any of Our Property; (v) distribute or otherwise make available any information or other content obtained through the Service to any third party, except as expressly permitted herein; (vi) otherwise interfere in any manner with the use or operation of the Service; or (viii) use the Service in the development, directly or indirectly, of any product, software or service that offers any functionality substantially similar to, or competitive with, the Service.
6. Feedback. If you provide to us (directly or indirectly, and by any means) any comments, feedback, suggestions, ideas, or other submissions related to the Service (collectively “Feedback”), the Feedback will be the sole property of CyberSpara. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating you in any way. We are and shall be under no obligation to maintain any Feedback in confidence, or to respond to any Feedback.
7. Warranty Disclaimers and Limitations of Liability.
a. General Disclaimer. THE SERVICE IS PROVIDED “AS IS”, WITH ALL FAULTS. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; (ii) THAT THE SERVICE OR OUR PROPERTY WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; AND (iii) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, INCLUDING BUT NOT LIMITED TO THIRD PARTY CONTENT, OBTAINED FROM THE SERVICE OR OUR PROPERTY. THE CONTENT PUBLISHED ON THE SERVICE COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. CYBERSPARA AND/OR ITS RESPECTIVE LICENSORS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SERVICE AND THE CONTENT THEREIN AT ANY TIME WITHOUT NOTICE. CYBERSPARA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE RESULTS OF USERS’ USE OF THE SERVICE We may pause or interrupt the Service at any time, and you should expect periodic downtime for updates to the Service. No advice or information obtained by you from us or through the Service will create any other warranty. CyberSpara hereby disclaims all liability for any act or omission of any Users of the Service or third parties.
b. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM US ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR OUR PROPERTY, EVEN IF WE HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR OUR PROPERTY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) OR (B) THE TOTAL FEES PAID BY YOU TO CYBERSPARA UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
8. Cloud Services and Third Party Services. Without limitation of the disclaimers and limitations of liability set forth in Section 7, you acknowledge and agree as follows: (a) we provide the Service using cloud computing services of one or more third party cloud providers (collectively, the “Cloud Providers”); and (b) we shall not be responsible or liable to you for any act, omission or failure of any Cloud Provider.
9. Indemnity. You will indemnify us, and our licensors, providers and agents, against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees (“Liabilities”) arising out of or related to your breach of this Agreement or your use of the Service (but excluding any Liabilities to the extent caused by our negligence or willful misconduct). We reserve the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to indemnify us. You will cooperate with us with respect to such defense and settlement.
11. Suspension and Termination. The term of your subscription shall commence on the date you purchase the paid subscription and, unless earlier terminated as set forth herein, shall continue for the subscription term you purchased, unless otherwise terminated as described in this Article 11. Either party may terminate this Agreement: (a) if the other party materially breaches this Agreement, the non-breaching party provides written notice of such breach and the breaching party does not cure such breach within thirty (30) days after receipt of written notice of such breach, or (b) if the other party (i) becomes insolvent or is unable to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not dismissed or vacated within forty-five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. If your account is terminated for any reason, you agree: (a) to immediately stop using the Service, (b) that the license and rights provided by us under this Agreement shall terminate, and (c) that we shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with your use of the Service or for termination of access to your account. Sections 1, 3 through 15, and 17 through 20, any accrued obligations and remedies hereunder, and any other provisions that by their nature should reasonably survive, shall survive the termination or expiration of this Agreement.
12. Modification of Service and Agreement. We reserve the right to modify the Service at any time, without notice to you. We may also from time to time amend this Agreement prospectively. If we do so, we will notify you by posting on our Site. You agree that your continued use of the Service constitutes your agreement to the amended Agreement. If you do not agree to any amended Agreement that we publish, you must terminate your account and cease using the Service. Except as set forth above, this Agreement may be amended or modified only by CyberSpara.
13. Applicable Law. You and we each agree that all disputes or other matters arising from or relating to this Agreement, or the use or operation of the Service, will be governed by the substantive laws of the State of New York, U.S.A., without regard to its or any other jurisdiction’s conflicts of laws principles that would apply another law. Any action or proceeding by you relating to any claim arising from or relating to the Service or this Agreement must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued. The United Nations Convention for the International Sale of Goods is hereby disclaimed.
14. Arbitration. We will attempt to resolve disputes with Users to their satisfaction. If, however, a matter arises that cannot be resolved promptly between you and us, you agree that any disputes arising out of or relating to the Service or this Agreement (including the validity and scope of the agreement to arbitrate and any disputes with other users of the Service) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) under the Federal Arbitration Act, and shall be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). You agree that the arbitration shall be held in New York, New York, unless the AAA or the arbitrator shall determine that venue in such city is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. You agree that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. The arbitrator may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on these issues. At CyberSpara’s option, this provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets (collectively, “IP Claims”). In addition, you or we may elect to bring an individual claim in a small claims court, but we do not hereby agree to any personal jurisdiction that is otherwise lacking.
You agree that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. You further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST US.
If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, then this entire section shall be deemed invalid and the arbitration clause shall be void.
15. Jurisdiction. With respect to any IP Claims (as defined above) that are not subject to arbitration under the above provision, you hereby consent to non-exclusive jurisdiction and venue in any federal or state court located within the City of New York, U.S.A., with respect to any suit, claim or cause of action arising from or relating to the Service or this Agreement, and you shall not bring any such suit, claim or cause of action except in a court located within the City of New York, U.S.A.
16. Force Majeure. In no event will we be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside our reasonable control. Without limitation of the foregoing, in the absence of our gross negligence or willful misconduct we will not be liable for any damages arising from the acts of hackers or similar bad actors interfering with the Service.
17. Compliance with Laws. You will comply with all laws and regulations applicable to your activities under or in connection with this Agreement, including without limitation United States export control laws, regulations and executive orders.
18. Geography. We are based in the United States. We make no claims that the Service or any of its content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
19. Children. The Service is not directed to users under the age of 13. The Service does not knowingly collect personal information from children under the age of 13. If you are under the age of 13, you are not permitted to register to use the Service or to send personal information to CyberSpara.
20. Miscellaneous Provisions. No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by us of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein. No waiver will be binding on us unless made in an express writing signed by us. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between us and you regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. Your registration, this Agreement and your rights and obligations hereunder are not assignable, or otherwise transferable or delegable, by you to any third party without our prior written consent in our sole discretion. Any purported assignment, transfer or delegation without such consent will be null and void. We may assign or otherwise transfer or delegate this Agreement (including any rights or obligations hereunder), including to any purchaser of our business, from time-to-time in our sole discretion. This Agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assigns. This Agreement may be executed electronically, and your electronic assent or use of the Service shall constitute execution of this Agreement. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes. As used herein and unless the intent is expressly otherwise in a specific instance, the terms “include,” “includes” or “including” shall not be limiting and “or” shall not be exclusive. Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of this Agreement. You agree that email to your email address on record will constitute formal notice under this Agreement. There shall be no third party beneficiaries to this Agreement.
Last Updated: May 15, 2023
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