BEFORE USING THE SERVICE, PLEASE READ THIS AGREEMENT CAREFULLY. BY USING THIS SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE PROVISIONS OF SECTIONS 19 AND 20 UNDER WHICH YOU AGREE TO ARBITRATE CERTAIN CLAIMS INSTEAD OF GOING TO COURT AND AGREE NOT TO BRING CLASS ACTIONS CLAIMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN PLEASE DO NOT USE THIS SERVICE.
NOTE TO KIDS UNDER 13 YEARS OF AGE: THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13. If you are under 13 years of age, then please do not use the Service. Talk to your parents about what sites are appropriate for you.
1. Privacy Policy
Cymatic’s Privacy Policy, found at https://cymatic.io/privacy is hereby incorporated into this Agreement. Please read this notice carefully for details relating to the collection, use, and disclosure of your personal information.
2. Individual Features and Services
When using the Service, you will be subject to any additional posted guidelines or rules applicable to specific services, offers and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into this Agreement. Please note that additional and/or different conditions and terms of use may apply to media, contests, competitions, or services provided through one or more of our partners or business associates, and you should refer to those before using such services.
3. Modification
Cymatic may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after Cymatic provides notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.
4. Ownership; Proprietary Rights
The Service is owned and operated by Cymatic. The content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Service that are provided by Cymatic (“Cymatic Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. For clarity, Cymatic Materials do not include User Submissions or any other content owned by and submitted by Cymatic Users on the Site or when using the Service. All Cymatic Materials contained on the Service are the copyrighted property of Cymatic or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Cymatic or its affiliates and/or third-party licensors. Except as expressly authorized by Cymatic, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of Cymatic Materials.
5. Monitoring Users and Content and Data
Cymatic does not control the content or data uploaded or posted by Users and does not have any obligation to monitor such content for any purpose. You acknowledge that you are solely responsible for all content and material that you submit on the Service. If at any time, Cymatic chooses, in its sole discretion, to monitor the content, Cymatic nonetheless assumes no responsibility for the content, no obligation to modify or remove any inappropriate content, and no responsibility for the conduct of the User submitting any such content.
6. User Submissions
6.1 The Service permits the submission and posting of text and other content submitted by you and other users (“User Submissions”), and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, Cymatic does not guarantee any confidentiality with respect to any User Submissions.
6.2 You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Cymatic to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by Cymatic and this Agreement, and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by Cymatic and this Agreement.
6.3 For clarity, you shall retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to Cymatic, you hereby grant Cymatic a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable, and transferable license to use, sell, reproduce, distribute, prepare derivative works of, display, perform, and otherwise exploit your User Submissions in connection with the Service and Cymatic’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant to each user of the Service a non-exclusive license to access your User Submissions through the Service, and to use, reproduce, distribute, prepare derivative works of, display, and perform such User Submissions as permitted by the functionality of the Service and this Agreement. The aforementioned licenses will terminate when User or Cymatic removes User’s Submission(s) from the Service.
6.4 In connection with User Submissions and any other transmission of messages or material facilitated by the Service, you further agree that you will not: (i) submit or transmit material that is not authorized by the copyright owner, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post and sell the material and to grant Cymatic all of the license rights granted herein; (ii) publish or transmit falsehoods or misrepresentations that could damage Cymatic or any third party; (iii) submit or transmit material that is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate; (iv) post or transmit advertisements or solicitations of business; or (v) impersonate another person. If notified by a user or a content owner of a User Submission that allegedly does not conform to this Agreement, Cymatic may investigate the allegation and determine in good faith and in its sole discretion whether to remove the User Submission, which it reserves the right to do at any time. Additionally, Cymatic may, at any time, remove any User Submission that in the sole judgment of Cymatic violates this Agreement.
6.5 The Service does not require any specific information be included in the User profile, so that User can remain anonymous.
6.6 Cymatic reserves the right to discontinue any aspect of the Service at any time, including the right to discontinue the display of any User Submissions either generally or specifically.
7. Payment
7.1 Users who use the services beyond the free tier may be required to pay a subscription fee when using the Service. All payments are made by credit card or ACH and are processed by our third party payment provider, as further detailed in the Privacy Policy. By signing up for the Service, you hereby authorize Cymatic to charge the provided payment instrument for the subscription fee and any applicable taxes. All payments are payable in U.S. dollars. You also agree to pay Cymatic any costs and expenses incurred by Cymatic, including reasonable attorneys fees, in recovering any overdue but unpaid amounts due hereunder.
8. Prohibited Uses
8.1 As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by this Agreement. Access to Cymatic Materials and the Service from territories where their contents are illegal is strictly prohibited. Cymatic Users are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the internet, technology, data, email, or privacy.
8.2 Any use by User of any of Cymatic Materials other than for private, non-commercial use is strictly prohibited.
8.3 You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, or impair it or interfere with any other party’s use of the Service. You may not intentionally interfere with or damage the operation of the Service or any User’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code. You may not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any content accessible through the Service, or features that enforce limitations on the use of the Service. You may not attempt to gain unauthorized access to the Service, or any part of it, other accounts, computer systems or networks connected to the Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You agree neither to modify the Service in any manner or form, nor to use modified versions of the Service, including (without limitation) for the purpose of obtaining unauthorized access to the Service.
8.4 The Service may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service.
8.5 You may not utilize framing techniques to enclose any trademark, logo, or other Cymatic Materials without our express written consent. You may not use any meta tags or any other “hidden text” utilizing Cymatic’s name or trademarks without our express written consent.
9. Account Information
You agree that the information you provide to Cymatic upon registration and, at all other times, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times.
10. Password
When you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password) you will immediately notify Cymatic. You may be liable for the losses incurred by Cymatic or others due to any unauthorized use of your account.
11. User Communications
Under this Agreement, you consent to receive communications from Cymatic electronically. We will communicate with you by email or by posting notices on the Service. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
12. User Service; Feedback
Please visit our Contact Us information page for further assistance.
13. Availability of Service
Cymatic may make changes to or discontinue any of the media, contests, web communities, products, or services available within the Service at any time, and without notice. The media, products, or services on the Service may be out of date, and Cymatic makes no commitment to update these materials on the Service.
14. Notice
Except as explicitly stated otherwise, legal notices shall be served on Cymatic’s national registered agent or to the email address you provide to Cymatic during the registration process. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration or purchase process. In such case, notice shall be deemed given three days after the date of mailing.
15. Disagreements
You alone are responsible for your involvement with recruiters, employers and any other third parties with whom you may interact in connection with the Service. Cymatic reserves the right, but has no obligation, to monitor disagreements between you and such parties.
16. Violations; Termination
You agree that Cymatic, in its sole discretion and for any or no reason, may terminate any member or customer account (or any part thereof) you may have at the Service or your use of the Service, and remove and discard all or any part of your account or any User Submission, at any time. Cymatic may also in its sole discretion and at any time discontinue providing access to the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service or any account you may have or portion thereof may be effected without prior notice, and you agree that Cymatic shall not be liable to you or any third-party for any such termination. Cymatic does not permit copyright infringing activities on the Service, and reserves the right to terminate access to the Service, and remove all content submitted, by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Cymatic may have at law or in equity.
17. Disclaimers; No Warranties
THE SITE, SERVICE AND ANY THIRD-PARTY, MEDIA, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CYMATIC, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
CYMATIC, AND ITS SUPPLIERS AND PARTNERS, DO NOT WARRANT THAT THE FEATURES CONTAINED IN THE SITE AND SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, SERVICE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
CYMATIC, AND ITS SUPPLIERS AND PARTNERS, DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE AND SERVICE IN TERMS OF IT CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT CYMATIC NOR ITS SUPPLIERS AND PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD, OR OTHERWISE OBTAIN MEDIA, MATERIAL, OR OTHER DATA THROUGH THE USE OF THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH MATERIAL OR DATA.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
18. Indemnification; Hold Harmless
You agree to indemnify and hold Cymatic, and its affiliated companies, and its suppliers and partners, harmless from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Service, violation of this Agreement, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Cymatic reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
19. Limitation of Liability and Damages
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL CYMATIC OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM YOUR USE OR THE INABILITY TO USE CYMATIC MATERIALS ON THE SITE, THE SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH CYMATIC, EVEN IF CYMATIC OR A CYMATIC AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, CYMATIC’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL CYMATIC’S OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE (WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE) EXCEED ONE HUNDRED DOLLARS.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED TO YOU BY THIRD PARTIES OTHER THAN CYMATIC AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED BY YOU THROUGH ANY LINKS PROVIDED ON THE SERVICE.
20. Arbitration
Any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought by either party is less than $10,000 shall be resolved via binding non-appearance-based arbitration initiated through the American Arbitration Association (“AAA”). The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In any such arbitration, the parties and AAA must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, where the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; (c) the arbitrator may award injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Agreement shall prevent either party from seeking remedies in small claims court of competent jurisdiction.
21. Class Action Waiver
YOU AGREE THAT ANY CLAIMS SUBJECT TO ARBITRATION UNDER SECTION 19 MUST BE MADE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
22. Claims
YOU AND CYMATIC AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE APP MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
23. Miscellaneous
23.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without giving effect to any principles of conflicts of law.
23.2 Jurisdiction. You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to mandatory arbitration as set forth above in Section 19 shall be filed only in the state or federal courts in and for Wake County, North Carolina and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
23.3 Waiver. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
23.4 Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
23.5 Assignment. This Agreement and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Cymatic without restriction.
23.6 Survival. Sections 1, 2, 4, 5, 6.3, 7 and 9 through 22 will survive any termination of this Agreement.
23.7 Headings. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof.
23.8 Entire Agreement. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement or Guidelines made by Cymatic as set forth in Section 3 above.
23.9 Claims. YOU AND CYMATIC AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
23.10 Disclosures. The website and services hereunder are offered by Cymatic Security, Inc., located at https://cymatic.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
