CYGNVS Service Agreement

Last modified September 2024

This CYGNVS Service Agreement (“Agreement”) is entered into by and between CYGNVS Inc., a Delaware corporation, with its address at 4940 El Camino Real, Suite 100, Los Altos, CA 94022, USA (“CYGNVS”), and Customer. CYGNVS and Customer may be referred to in this Agreement individually as a “party” and collectively as the “parties.” The parties agree as follows:

1. DEFINITIONS.
   1. 1.1  “Agreement” means this document and any addenda or exhibits attached. 
   2. 1.2 “Business Terms Form” or “BTF” means a quote or other written ordering document, issued by CYGNVS and agreed to by Customer by means of signature or issuance of a purchase order, that details the Services, the associated fees, and other related details and which incorporates this Agreement by reference. Each BTF executed between the Parties is a separate offering and will not change the terms of this Agreement or an existing BTF unless specifically agreed to in a subsequent BTF.
   3. 1.3 "Customer" means an organization identified in the BTF that accesses the Services and Documentation for business purposes.
   4. 1.4 “Customer Data” means all data the Customer or its Users provides, creates, stores, and processes in the Services for its own business purposes, excluding Resultant Data.
   5. 1.5 “Documentation” means all documents, data, know-how, methods, processes, software, inventions, works, technologies, reports, spreadsheets, presentations, CYGNVS templates, analytics, designs, drawings, datasheets, brochures, architectural diagrams, schematics, training and education documents, sales and marketing content and other materials that are proprietary to CYGNVS and provided or made available to Customer by CYGNVS in connection with this Agreement.
   6. 1.6 “Services” means the cloud software platform made accessible by CYGNVS to Customer, and such other services as described in the BTF.
   7. 1.7 “CYGNVS Terms” means the Terms of Use the Privacy Policy and any other terms and policies that are applicable to the use of the Services.
   8. 1.8 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, service mark, trade name, domain name right, trade secret, know-how, or other intellectual property rights, and all similar or equivalent rights or forms of protection, in any part of the world.
   9. 1.9 “Resultant Data” means data derived from Customer or its Users access to and use of the Services which has been deidentified and aggregated in a manner to enhance and develop the Services.
   10. 1.10 “Service Term” means the specified period during which Customer is granted access and use of the Services and Documentation, as identified in the applicable BTF.
   11. 1.11 “Users” means the employees and contractors of Customer, and any third parties who are authorized by Customer to access the Services.
2. OBLIGATIONS OF THE PARTIES. During the Service Term of any BTF, CYGNVS will provide or make available the Services and Documentation to Customer and its Users in accordance with this Agreement. Customer will comply with the CYGNVS Terms and its payment obligations as set forth in this Agreement.
3. BILLING AND PAYMENT.
   1. 3.1 Fees; Payment. Unless otherwise agreed in a BTF, Customer will pay all fees invoiced in US dollars and within 15 days of the invoice date. Services as identified in a BTF are fixed for the duration of the Service Term and cannot be reduced.
   2. 3.2 User Management. Unless otherwise agreed in a BTF, additional Users may be added to the platform in blocks of 10 Users, prorated for the remainder of the Service Term. Customer shall receive a system-generated invoice 30 days after the month in which the additional Users are added to the platform.
   3. 3.3 No Deductions or Setoffs; Taxes. Customer will pay all invoices in full without setoff or deduction and without withholding for any taxes, levies, or duties. Customer will be responsible for payment of all taxes, levies, and duties with respect to the CYGNVS Services, excluding taxes based solely on the income of CYGNVS.
   4. 3.4 Effect of Nonpayment. CYGNVS may suspend or terminate this Agreement and the Services for failure to pay invoices when due and payable. Unpaid invoices are subject to interest at the lesser of 1.5% per month or the maximum permitted by law, plus all collection costs. Interest continues to accrue during any suspension due to non-payment.
4. OWNERSHIP; INTELLECTUAL PROPERTY RIGHTS.
   1. 4.1 Ownership. Customer owns and will continue to own all right, title, and interest in and to all Customer Data. CYGNVS owns and will continue to own all right, title, and interest in and to Resultant Data, which shall not contain or reference any Customer Data. Customer acknowledges that the CYGNVS name, logo, and the service names associated with the Services are trademarks of CYGNVS or third parties, and no license to such marks is granted except to the limited extent permitted pursuant to the BTF. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services or Documentation, except for Customer to use the Services or Documentation. All right, title, and interest in and to the Services and Documentation are and will remain with CYGNVS. If Customer acquires any Intellectual Property Rights in or relating to the Services or Documentation, such rights are irrevocably assigned to CYGNVS or its licensors without further action by either Party. Customer will not take any action that interferes with or is adverse to the Intellectual Property Rights of CYGNVS.
   2. 4.2 Feedback. Customer grants to CYGNVS a worldwide, perpetual, irrevocable, royalty-free, fully-paid up, non-exclusive, transferable, sublicensable license to use and incorporate into the Services any suggestion, enhancement, request, recommendation, correction or other feedback provided by Customer relating to the Services or Documentation.
   3. 4.3 Access Right. During the Service Term of any active BTF, CYGNVS grants Customer access to the Services and Documentation for Customer’s internal use and business purposes.
5. TERM; TERMINATION.
   1. 5.1 Term; Termination. This Agreement is co-terminus with all applicable BTFs and, unless earlier terminated as set forth below or otherwise in this Agreement, will continue while a BTF is in effect between the Parties. Either Party may terminate this Agreement (or any BTF) upon the other Party’s material breach that remains uncured for thirty (30) days following written notice of such breach, except that in the event of a breach of Section 3 (Billing and Payment) or 9 (Confidentiality), the cure period is five (5) days. CYGNVS may modify or discontinue any portion of the Services effective as of the conclusion of Customer’s then-current Service Term.
   2. 5.2 Renewal. At the end of each Service Term, this Agreement will automatically renew for subsequent one (1) year periods on the same terms of the then-current BTF, unless a Party provides the other Party with a written termination notice (60) days prior to the renewal date, effective at the end of the then-current Service Term. Upon renewal, CYGNVS may increase Fees by not more than 10% of the then-current Service Term’s Fees for the same Services as outlined in the BTF.
   3. 5.3 Effect of Termination. Except as set forth in this Agreement, including Section 5.4 (Survival), upon termination of this Agreement: (a) all amounts owing to CYGNVS pursuant to any active BTF will be immediately due and payable; (b) Customer’s right to use the Services will immediately terminate; (c) Customer’s right to access and use the Services, Documentation and other rights set forth in any BTF will immediately terminate; and (d) Users’ rights to access the Services will immediately terminate. Customer is responsible for retrieving a copy of its data from the Services prior to the effective date of termination. CYGNVS will delete all Customer Data in the Services. Each Party will comply with its obligations with respect to Confidential Information under Section 9.
   4. 5.4 Survival. The following Sections and any other right or obligation that by its nature should survive termination of this Agreement, will survive any termination of this Agreement: 3, 4 (except 4.3), 5.3, 5.4, and 6-10.
6. REPRESENTATIONS AND WARRANTIES.
   1. 6.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized and in good standing as an entity under the laws of the jurisdiction of its organization; (b) it has the right, power, and authority to enter into this Agreement and to perform its obligations under this Agreement; (c) the execution of this Agreement has been duly authorized; and (d) it will comply with all applicable laws and regulations in connection with this Agreement.
   2. 6.2 CYGNVS Representations and Warranties. CYGNVS represents and warrants that (a) the CYGNVS Intellectual Property Rights included in the Services and Documentation are proprietary to CYGNVS and that it has the rights to license all such Intellectual Property Rights to the Customer; (b) the Services will function substantially in accordance with the Documentation, and that such functionality shall be maintained during the Service Term; (c) the Services and Documentation shall be provided in a competent and professional manner; (d) CYGNVS, its employees, agents, representatives and subcontractors shall at all times maintain good professional practice, high ethical standards, avoid conflicts of interest in the conduct of any work, comply with all applicable laws, statutes, regulations and other requirements prohibiting data protection breaches, bribery, corruption, kick-backs or similar unethical practices; and (e) it is not aware of any threatened or actual claims that the Services or Documentation infringe a copyright of a third Party.
   3. 6.3 Exclusions. EXCEPT AS EXPRESSLY WARRANTED HEREIN, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND COURSE OF DEALING, ARE DISCLAIMED, AND THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS.” Without limiting the foregoing, CYGNVS makes no warranty of any kind that the Services or Documentation or any results of the use thereof, will meet Customer's or any other person's requirements, achieve any intended result, be compatible or work with any software, system or other services, or be accurate or complete. The Services may be subject to, and CYGNVS is not responsible for, limitations, risks, and other problems inherent in any electronic communication. CYGNVS does not warrant that use of the Services will be risk-free, uninterrupted, error-free, or free of harmful code. CYGNVS does not provide representations, warranties, or assurances against interception or access. CYGNVS is not responsible for any unauthorized acts caused by factors outside of the reasonable control of CYGNVS, resulting in loss of or damage to Customer Data or other property in connection with Customer’s use of the Services. Customer acknowledges and agrees that purchases hereunder are neither contingent nor dependent on the delivery of any future functionality or features nor statements relating thereto. While CYGNVS will be providing the Services, all decisions as to implementing or using the Services will be made by and will be the sole responsibility of Customer or, if applicable, its clients; CYGNVS will not be liable to Customer or other parties for any result obtained or not obtained as a consequence of Customer's, or it’s client’s, implementation or use of the Services. The foregoing does not affect any warranties which cannot be limited under applicable law or which are explicitly provided under this Agreement.
7. LIMITATION OF LIABILITY. EXCEPT FOR DAMAGES THAT CANNOT BE EXCLUDED BY LAW, (a) in no event will the maximum aggregate liability of either Party exceed the total fees paid to and received by CYGNVS from the Customer in the twelve (12) months prior to the cause of action, and (b) neither Party shall be liable to the other Party for any indirect, punitive, special, exemplary, incidental, consequential or similar damages (including loss of data, revenue, profits, use or anticipated savings) arising out of or relating to this Agreement, even if such Party has been previously advised of the possibility of such damages. ANY CAUSE OF ACTION EITHER PARTY MAY HAVE ARISING OUT OF THIS AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
8. INDEMNIFICATIONS. Customer shall, at its own expense, indemnify, defend and hold harmless CYGNVS against any and all third party actions, proceedings, damages, liabilities, claims, losses and expenses (including reasonable attorneys’ fees) arising from claims of which Customer Data infringe the patent, copyright, trademark rights or constitute the misappropriation of trade secrets of any third party. CYGNVS shall at its own expense indemnify, defend, and hold harmless Customer from and against any and all actions, proceedings, damages, liabilities, claims, losses, and expenses (including reasonable attorneys’ fees) arising from claims of which the Services infringe the patent, copyright, trademark rights, or constitute the misappropriation of trade secrets, of any third party. The obligations for both Parties under this clause will survive the cancellation, expiration, termination, or completion of this Agreement and the Services provided hereunder.
9. CONFIDENTIALITY. “Confidential Information” means the terms of this Agreement and any other information disclosed by one Party (“Discloser”) to the other Party (“Recipient”) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including with respect to CYGNVS, the Services, the Documentation, and CYGNVS pricing information. Recipient shall not use Discloser’s Confidential Information except as necessary to perform Recipient’s obligations or exercise its rights under this Agreement. Recipient will not disclose Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information to Recipient’s employees, officers, directors, contractors, agents and advisors (“Representatives”) who have a need to know for purposes of the Recipients’ exercise of its rights or performance of its obligations under this Agreement and who are bound to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient is responsible and liable for any breach by its Representatives of this section of this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure and will not use less than a reasonable degree of care. The foregoing will not apply to any information that: (i) was or becomes generally known by the public through no fault of Recipient or its Representatives; (ii) was rightfully known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was rightfully disclosed by a third party to Recipient, without restriction; (iv) Recipient independently develops without use of Discloser’s Confidential Information; or (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement. If the Recipient or any of its Representatives is required pursuant to a governmental order or proceeding to disclose any Confidential Information of Discloser, then, to the extent permitted by applicable law, the Recipient shall promptly, and prior to such disclosure, notify the Discloser of such requirement so that the Discloser can seek a protective order or other remedy, notice of the intended disclosure and an opportunity to respond or object thereto. No such compelled disclosure by the Recipient will otherwise affect the Recipient's obligations hereunder with respect to the Confidential Information so disclosed. Upon termination of this Agreement or Discloser’s written request at any time and subject to any contrary obligations under this Agreement or applicable law, Recipient shall promptly return or destroy and erase from all systems it uses or controls (a) all originals and copies of all documents, materials and other embodiments and expressions in any form or medium that contain or are based on Discloser’s Confidential Information, in whole or in part, except to the extent required by applicable law or in backup systems until deleted in the ordinary course, provided that all such information and materials will remain subject to the confidentiality requirements in this Agreement, or (b) solely such specific Confidential Information as Discloser may request, and provide, upon request, a written statement to Discloser certifying that it has complied with the requirements of this section.
10. GENERAL.
    1. 10.1  Notices. Notices must be sent to the address set forth on the most recent BTF by mail or overnight courier and are deemed given 72 hours after mailing or confirmed delivery with copy to an electronic mailbox, which upon acknowledgement will be deemed accepted. Notices to CYGNVS must be addressed to ATTN: Legal (legal@cygnvs.com), CYGNVS Inc. 4940 El Camino Real, Suite 100, Los Altos, CA 94022, USA.
    2. 10.2  Assignment. Neither Party will assign its rights or delegate its obligations under this Agreement or otherwise assign this Agreement to any third party without the other Party’s prior written consent, except in connection with a merger, acquisition, or sale of all or substantially all of a Party’s assets, business, or voting securities. This Agreement will bind and inure to the benefit of each Party and its successors.
    3. 10.3  Governing Law; Venue; Remedies. This Agreement is governed by California law, without regard to conflicts of law provisions. Any dispute arising out of this Agreement shall be brought in state court in Santa Clara County, California or in the United States District Court for the Northern District of California located in Santa Clara County, California. Each party consents to the exclusive jurisdiction of such courts. 
    4. 10.4  Force Majeure. An extraordinary event or circumstance beyond the reasonable control of either party, including acts of God, labor conditions, systemic internet, cloud, electrical, telecommunications, or other utility failures, earthquakes, floods, fires, storms, acts of terrorism, war, or acts or orders of government shall be considered a “Force Majeure”. A delay or failure of a party to comply with an obligation set forth in this Agreement (other than the obligation to pay money when due and owing) will be suspended during the continuance of a Force Majeure condition and will not be considered a breach; a party must give prompt written notice of any event considered a Force Majeure to delay or excuse performance of an obligation hereunder.
    5. 10.5  Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
    6. 10.6  Independent Contractors. The parties are independent contractors. This Agreement does not create any joint venture, partnership, employment, franchise, agency, or fiduciary relationship between the parties. Neither party shall have any authority to contract for or bind the other party in any manner whatsoever. 
    7. 10.7 Publicity. Customer grants CYGNVS the right to add Customer name and logo to CYGNVS’ customer list and website. You can opt-out of this use by filling out the Publicity Opt-Out form at https://www.cygnvs.com/termsandpolicies/publicity-opt-out.
    8. 10.8 Changes. CYGNVS may modify any part or all of this Agreement by posting a revised version at https://www.cygnvs.com/termsandpolicies/service-agreement-updates. The revised version will become effective and binding the next business day after it is posted. CYGNVS will provide you notice of this revision by email or in-app notification. If you would like to receive an email notification when we update the Agreement, complete the form found at https://www.cygnvs.com/termsandpolicies/service-agreement-updates.
       
       If you do not agree with a modification to the Agreement, you must notify CYGNVS in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms posted at https://www.cygnvs.com/termsandpolicies/service-agreement-updates will apply. However, if we can no longer reasonably provide the subscription to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Services will terminate upon our notice to you and we will promptly refund any prepaid but unused fees covering use of the Services after termination.
    9. 10.9 Waiver; Amendment; Severability. A Party’s failure to enforce any provision in this Agreement will not constitute a waiver unless in writing. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion. No amendment to this Agreement is effective unless in writing and signed by both Parties. If any provision of this Agreement is unenforceable, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible and the remaining provisions will continue in full force.
    10. 10.10 Entire Agreement. This Agreement forms the entire agreement between Customer and CYGNVS regarding the subject matter hereof and supersedes all prior or contemporaneous agreements between the Parties regarding its subject matter. Any conflict between this Agreement and any BTF will be resolved in the following order: (a) the BTF and (b) this Agreement.

 

CONTACT CYGNVS. If you have any questions regarding these this Agreement, you may contact us by writing to CYGNVS Inc., 4940 El Camino Real, Suite 100, Los Altos, CA 94022 or by emailing legal@CYGNVS.com.