Last Modified: March 27, 2020
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 14 BELOW
You hereby agree that you have read, understood and accepted these Terms which were made available to you before starting to use the Services.
Use of the Services implies your acceptance of notices, use regulations, and instructions made known to you by the Company following acceptance of these Terms. If you do not agree with the Terms, your use of the Services will be terminated.
We provide our consumer-focused Services for our users to monitor social media, email, and text activity of their child(ren) or individual(s) for whom they are legal guardian using your User Account (as defined below). You agree that by signing up for the Services, your doing so is permitted by applicable law and without infringing the rights of others (including the fundamental rights of Users) or other applicable regulations.
You are solely responsible for use of your account dashboard and the processing of personal data associated with your Cyber Dive Account which includes, among others, collecting, storing, and analyzing personal data from authorized Accounts. The Cyber Dive Platform (as defined below) automatically deploys the services activated by You and You are solely responsible for the configuration of your dashboard.
You warrant that (a) you are 18 years of age (or the age of majority in your jurisdiction, if different) or older, (b) either you are the owner of the Devices (as defined below) on which you wish to enable the Cyber Dive Services, or that you are the tenant of such Devices and, if legally required, have the authorization of the owner of such Devices, and (c) you have the authority to grant permission to access the Accounts which you connect with the Services, or have authorization of the owner of such Accounts.
The Company disclaims responsibility for any illegal use you make of the Services.
The Cyber Dive Software (as defined below) and the Cyber Dive Platform (as defined below) are proprietary technologies, and we reserve the right to modify or temporarily suspend the Services at any time for any reason. Notice of any suspension will be made in accordance with these Terms.
We reserve the right to refuse the Services to anyone and for any reason.
a. “Account” means the third-party social network, text service, email, or other platform for which you have authorized connection to the Services.
b. “Cyber Dive Account” means the account created by You to access and use the Services.
c. “Cyber Dive Platform” means the Cyber Dive online platform providing access to the Cyber Dive dashboard enabling you to access and interface with the Services, and thus configure the type, level, and scope of monitoring of the Devices associated with your Cyber Dive Account.
d. “Cyber Dive Service” means the Cyber Dive monitoring service, based on the Cyber Dive Platform and Device Software, to enabling monitoring and storing of online activity reports and content of communications, in particular social networks, email, and texts.
e. “Cyber Dive Software” means the proprietary software developed by Cyber Dive that enables use of the Services.
f. “Devices” means any devices, including but not limited to computers, laptops, phones, tablets, compatible with the Services which you either own or have a right to use and access.
g. “Services” means the services provided herein which includes use of the Cyber Dive Software, access and use of the Cyber Dive Platform.
h. “Users” means any natural person using the Devices on which the Cyber Dive Platform, Cyber Dive Services, and/or Cyber Dive Software are used or deployed.
2. Use of the Service and Conditions
a. Authorization. Subject to the Terms set out herein, you are hereby granted a limited, revocable, non-exclusive, and non-transferable license (without right to sub-license) to access and use the Services with respect to your Devices for your own internal, private, and personal use only.
b. Conditions. You are responsible for all activities undertaken under your Account, including the activities undertaken by Users who have access to your Device(s). You agree you will not (a) use the Services for any illegal or unauthorized purpose or any activity that infringes third party rights or is a breach of these Terms, (b) use the Services in any manner that may deteriorate the Services, or (c) violate any laws in your jurisdiction while using the Services. Further you will indemnify and hold us harmless to the fullest extent allowed by law regarding all matters related to your use of the Services.
c. Prohibition on Use. You agree not to use or permit use of the Services to monitor or control Users Devices and activities in any of the following conditions:
i .When the Devices are not your property (or of your immediate family members from whom you have permission or are the legal decision-maker) or have not been leased to you.
ii. When it is not clear in your jurisdiction that controlling and monitoring use of the Devices or accounts through the functionalities offered by the Services are permitted by law or regulation.
iii. When it is not clear in your jurisdiction that controlling and monitoring use of the Devices or accounts through the functionalities offered by the Services does not require express User consent, unless such express consent is obtained and documented by you.
iv. When there are no guarantees that the use of information obtained through using the Services will respect third party (including Users’) rights and applicable regulation.
d. Exclusion. We reserve the right to exclude you from the Cyber Dive Platform and Services without prior warning should you, or any of your authorized Users, breach these Terms.
3. Term & Termination
a. Term. Subject to payment of the fees, when applicable, your Cyber Dive Account shall be activated and remain in force for the term indicated below, unless terminated by either us or you hereunder:
i. Basic User: use of the Services after registration of the User Account when no Premium Services have been selected and paid for. Basic User Accounts are free to Users.
ii. Premium User: subject to payment of the fees, use of the Services for the contracted term, in accordance with the plan you have chosen. Premium terms plans are automatically renewed for the same term, unless cancelled in accordance with the cancellation process below.
b. Cancellations. You may cancel your Account at any time. All cancelations can be completed through the account page. No refunds will be given for early termination unless we are in breach of these terms. In addition, we reserve the right to cancel the Service with you if (a) the provision of the Services is, in our sole opinion, no longer commercially or otherwise viable or (b) your Account is inactive for more than 30 days (in this latter event, we will provide you 15 days’ notice of termination, sent to your registered email address).
c. Termination for breach. We may suspend or cancel your User Account immediately in case of breach by you of these Terms, by written notice to the email associated with your Cyber Dive Account.
d. Upon Termination. Upon termination for any reason, your access to your Cyber Dive Account and all of its content will be disabled and deleted, except as maintained in backups (for back-up retrieval purposes only or for legal compliance). You shall cease using the Cyber Dive Platform and accessing the Services immediately upon termination.
4. Your Responsibilities
a. Registration. You must register and create a Cyber Dive Account to access and use the Services. To register, you must create an account by completing the corresponding form with your details (email and name) and agreeing to these Terms and other terms and policies as requested. You warrant that the information you provide is, and will at all times, be correct, complete and accurate. A verification email will be sent to you and you must provide all necessary verification (which may include a valid credit card or other identification) to allow Us to positively identify you.
b. Passwords. Passwords for your Cyber Dive Account must be kept confidential and it is your responsibility to safeguard and ensure their correct use. You agree to notify us immediately upon disclosure of the passwords, or upon learning of any unauthorized use of your Cyber Dive Account or any other breach of security known to you.
c. Cyber Dive Platform. You are solely responsible for how your Cyber Dive Platform dashboard is configured and the processing of any personal data through the Services as a consequence, including its collection, storage, and analysis with the Cyber Dive Software or on the Cyber Dive Platform. Cyber Dive will only implement the configuration and instructions provided by you.
d. Collaboration and Compliance with current regulations. You agree that we can configure the Services so that access to certain websites, protocols, or technologies (hereinafter "Certain Services") is not possible while the Services are used. Especially, but not only, we can use this option in cases where (a) it is known or suspected that these are used to violate mandatory applicable laws and regulations and/or (b) if we believe (at our absolute discretion) that these may be harmful to the Services.
5. User Data
a. User Content. The Services monitor and store information transmitted from the accounts, platforms, and technologies for which You provide access and may relate to both offline and online activities of Users (usage of applications, searching, social networks, browsing, etc.), certain communications (social network forms, instant messaging, etc.), and email messages and other information of Accounts You connect with the Services. While we collect, store, and analyze this information for You and on your behalf, you and/or the owner of the Account(s) with which you are connecting, are sole owners of this information and are solely responsible for all content that is transmitted to us. You, on your own behalf and on behalf of the Account holder(s) for the Account(s) and/or services which you connect with our Services, grant Cyber Dive a worldwide, irrevocable, royalty-free, nonexclusive, sub-licensable license to store analysis, logs, and data associated with such Accounts on our servers for purposes set out in these Terms.
b. Responsibility for Account content. We do not control or supervise any Account content, except when required to in accordance with your instructions (e.g. through configuration of the Cyber Dive Platform) or by applicable law, competent court, or administrative decision. We reserve the right to eliminate, at any time, any Account data if we become aware that it infringes or may infringe the law or third party rights.
c. Account content on termination. In the event of termination for any reason, your access to your Cyber Dive Account and all of the data associated therewith will be disabled and your Cyber Dive Account contents will be deleted. Notwithstanding such protocol, we may retain such Cyber Dive Account contents (a) under backup protocols and (b) for any legal matters that may arise from our relationship with you. Access to such data will be blocked in accordance with applicable laws unless such event arises.
d. Data retention. If there are any data you wish to retain for legal purposes, you must request it via your dashboard prior to termination. You are responsible for the conservation of such data. If we terminate your Account without notice because you have breached these Terms, you must provide evidence to us of the need to retain the data within 3 days following termination, and you will have an additional 5 days to obtain these data.
6. Charges and Payment of Fees
a. Fees. Fees for any payment plans are set out at www.cyberdive.co and on your premium registration form (“Fees”). For payment plans, you agree to pay the Fees set out in the plan selected by You. Payment is by way of online payment system provided by us or as agreed by us. We are not responsible for the data processed by our payment gateway provider which will be done pursuant to the terms made available to you in the payment process. On periodic renewal, you will be charged at the then-current price, unless otherwise agreed in writing with us. Fees are non-cancellable and non-refundable, except as provided in these Terms. Fees for additional Users or functionality added during the subscription term are charged at the same price as for the pre-existing subscriptions, and the overall subscription fees will increase accordingly.
b. Fee updates. Fees for the Services may change at any time by giving you at least thirty (30) days prior written notice. If you do not reject such a price change in writing requesting the termination of the Services, you will be deemed to have accepted the new rate. New rates applying to the next renewal period or subscription can be communicated at any time prior to the purchase or renewal of the Services subscription. Continued use of the paid Services after the date of renewal will be deemed acceptance of the new rate.
c. Payment. Unless otherwise provided as part of your subscription, all amounts shall be due and payable in advance when selecting a paid subscription of the Service and no less than seven (7) days prior to renewal. We reserve the right to suspend or terminate access to any paid features of the Services if Fees are not paid on time or if the method of payment is declined for any reason. For all payments by credit card, you will provide us with valid and updated credit card information. By providing credit card information, you authorize us to charge such credit card for all paid Services subscriptions you request and subsequently any renewal subscription term(s).
7. Service Provision, Security and Support, Suspension
a. Service Provision. We use reasonable methods to make available to you at all times the Platform and Services but we shall not, in any event except for our own negligence, be liable for interruptions of Service or down-time. Due to special maintenance, security, capacity, or other issues, some of which may be out of our control, Services may be temporarily suspended or experience outages.
b. Security. You understand that the Services will be used for transmission of your User Content and information to the Cyber Dive Platform, collected from the connected accounts associated to the User Account, and that during processing, this User Content, including contact names, email, text messages, social network activity, and other account information, are transferred (encrypted) over the Internet. Currently they are not stored in an encrypted manner, as this would prevent the monitoring and filtering services.
c. Confidentiality. We agree to keep confidential and use industry-standard protocols to prevent and protect the User Contents from unauthorized disclosure or use, except when legally required to disclose such User Content.
d. Tracking. In addition to monitoring behavior at your request and on your behalf in accordance with these Terms, which is the principal objective of the Services, you agree to provide us authorization for functional usage tracking capability which allows us to collect, for improving our own Services, general statistical information about Service usage. This information is collected by us associated to your Account, but is subsequently processed on an anonymous basis.
e. Support. You may contact Support at firstname.lastname@example.org during designated times.
8. Privacy and Data Protection
b. Limitation of Warranties.
i. We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:
1. which users gain access to the Services;
2. what Content you access via the Services; or
3. how you may interpret or use the Content.
ii. You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
iii. THE SERVICES AND CONTENT ARE PROVIDED "AS IS", “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
10. Third-Party Services.
The Services may permit you to link to or otherwise access other websites, services, or resources on your Device and the Internet, and other websites, services or resources may contain links to or be accessed by the Services. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link or access is for information purposes and does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
a. Liability Limitation. You agree that your use of the Cyber Dive Platform and/or Services shall be at your sole risk and responsibility. To the maximum extent permitted by law, in no case is the Company, its directors, employees, shareholders, or affiliates responsible or liable for any indirect or consequential loss, including without limitation, damages, loss of reputation, equipment failures, or other damage or loss, arising out of or relating in any way to (i) the use or the inability to use the Services, (ii) reliance placed by you on the completeness, accuracy or existence of any of the Services, (iii) any changes which we may make to the Services, or for any permanent or temporary cessation in the provision of the Services, (iv) unauthorized access to or alteration of your data or failure to keep your password or account details secure and confidential; (v) the deletion of, corruption of, or failure to store, any your content and other communications data maintained or transmitted by or through your use of the Services; (vi) any errors in any content or for any loss or damage of any kind incurred as a result of your use of any content posted, emailed, transmitted, or otherwise made available via the Services; or (vii) statements or conduct of any third party on the Platform or Service.
b. To the extent permitted by law, the total liability of Cyber Dive for any claims under these Terms, including for any implied warranties, is limited to the amount you paid us to use the Services (or, if we choose, to supplying you the Services again). 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, our liability will be limited to the fullest extent permitted by applicable law.
13. Intellectual Property Rights
a. Ownership. We own or are licensees of all intellectual and industrial property rights in the technology underlying the Services. Access to and use of our Services does not imply any transfer of all or part of these rights to you. The Cyber Dive Platform and its underlying technology shall remain the exclusive property of Cyber Dive and all rights therein, including all rights in patents, copyrights, trademarks and trade secrets applicable thereto, shall remain vested in Cyber Dive and/or our licensors. You shall do nothing inconsistent with our title. You shall not transfer, sell, assign, sublicense, pledge, or otherwise dispose of, encumber, or suffer a lien or encumbrance upon or against any interest in the Cyber Dive Platform without our prior written consent. You shall not remove any trademark, trade name, copyright notice, or other proprietary notice about our Services.
b. Trademarks. You will not use our trademarks, trade names, logos, domain names, other distinctive brand features, or any copyrighted material which are associated with Cyber Dive, without our prior written consent which can be withheld at our discretion.
14. ARBITRATION CLAUSE & CLASS ACTION WAIVERIMPORTANT–PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
a. Binding Arbitration
i. Either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by the Judicial Arbitration and Mediation Services (“JAMS”), or its successor, in accordance with the provisions of its Streamlined Arbitration Rules & Procedures, excluding any rules or procedures governing or permitting class actions.
ii. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
iii. The Commercial Arbitration Rules governing the arbitration may be accessed at www.jamsadr.com or by calling 1.800.352.5267. Under no circumstances shall you be able to recover attorney’s fees. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States or Canada, arbitration will take place in New Castle County, Delaware, and you and Company agree to submit to the personal jurisdiction of any federal or state court in New Castle County, Delaware, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
c. Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
d. Exception–Litigation of Intellectual Property
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).e. Changes to this Section
i. Company will provide 60-days’ notice of any changes to this Section 14. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day.
ii. For any dispute not subject to arbitration you and Company agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in New Castle County, Delaware. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
Except with regarding to Section 14, we reserve the right, in our sole discretion, to modify or replace any of these Terms, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Cyber Dive Platform or by sending you notice through the Services, via email, or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms periodically for changes. Your continued use of the Services following notification of any changes to these Terms constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms in effect at the time of such use.
a. Entire Agreement and Severability. These Terms are the entire Agreement between you and us with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder
b. Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation.
c. Assignment. These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
f. Notices. Unless otherwise specified in these Terms, all notices under these Terms will be in writing and will be deemed to have been duly given when received, if sent via email, personally delivered, or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com. No Waiver. Our failure to enforce any part of these Terms shall not constitute a waiver of our right to later enforce that or any other part of these Terms. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
The section and paragraph headings in these Terms are for convenience only and shall not affect their interpretation.
i. Governing Law and Jurisdiction.
These Terms shall be governed by and construed in accordance with the laws of the State of Delaware, including its conflict of laws rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms shall be governed by the Arbitration Clause and Class Action Waiver Section of these Terms.
February 1, 2020Contact Us
4140 E Baseline Rd. #101
Mesa, AZ 85206
Subscription, Cancellation and Refund Policy.
Premium Services are offered on a subscription basis only. For Premium Services, a monthly subscription fee is charged each month to a credit card or payment account registered with Cyber Dive and processed via Stripe. Subscriptions are month-to-month (for the monthly subscription) and automatically renew at the end of each month for the next succeeding month, unless you cancel the subscription. To cancel your subscription at any time, please navigate to the “Account” page on our Site. Upon cancellation, the Service will terminate at the end of the current billing cycle and Cyber Dive will cease any further services. No refunds are provided. Full service audits are offered as a one-time fee. For Full service audits, you may request a refund within 24 hours from the date and time of purchase. If 24 hours have passed, no refund will be provided.