These Terms Of Service ("Terms") govern the access and use of Cybernut Inc.’s (“Cybernut”) subscription services (“Services,” as defined herein) by any and all individuals or entities that receive the Services (individually and collectively “Customer(s)”). In addition to these Terms, Customers are subject to Cybernut’s other policies, including but not limited to its Privacy Policy, which governs how personal information is collected, used, and protected. If Customer has fully executed a master agreement or similar agreement with Cybernut, such agreement shall govern the access and use of the Services. Customer and Cybernut may be referred to in this agreement individually as a “Party” or collectively as the “Parties.”

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These Terms constitute a legal agreement between Customer and Cybernut and govern all use of the Services, including all information provided through the Services. By accepting these Terms, either by: (1) clicking a box indicating acceptance through the Services; (2) executing a quote or purchase order that references these Terms; or (3) by using Cybernut’s Services, Customer agrees to be bound by these Terms. Cybernut may update or make changes to these Terms from time to time, and will provide 30 days' notice of any upcoming changes being made to the Terms. Cybernut encourages Customers to periodically review and check for updates to stay informed about the most up to date terms. A Customer’s continued use of the Services after any changes is deemed to be an acceptance of those changes.

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The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, or as otherwise restricted by these Terms. Any direct competitors of Cybernut (or third party representatives acting on behalf of such direct competitors) are prohibited from accessing the Services.

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1. Definitions. For purposes of these Terms:

a."Active User(s)" means Customer’s Users with active assigned Seats.

b. "Affiliate" means an entity that, directly or indirectly, through one or more entities, controls, is controlled by, or is under common control with, the specified entity.

c. "Authorized Users" means students, teachers, and administrators in a Participating School District that have been provided a valid login ID and password by their respective school district.

d. "Channel Partner" means an authorized Cybernut reseller, distributor, or managed service provider through which Customer may acquire the Services and/or professional Services.

e. "Confidential Information”" means all information or material disclosed by a Party to the other Party, whether orally or in writing, that: (a) gives either party some competitive business advantage, gives either Party an opportunity of obtaining some competitive business advantage, or the disclosure of which may be detrimental to the interests of the Party disclosing the information; and (b) is either: (i) marked “Confidential,” “Restricted,” “Proprietary,” or includes other similar markings; (ii) known by the Parties to be confidential and proprietary; or (iii) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary. The Services, including all related information, methodologies, processes, and technical data are deemed Confidential Information of Cybernut.

f. "Quote" means a purchasing document or other similar document, such as a purchase order or SOW, in connection with a purchase under these Terms.

g. "Seat(s)" refers to the number of Users permitted access to the Services pursuant to the user count purchased via a Quote.

h. "Software" means the object code version of any software that may be licensed by Customer under these Terms for installation on Customer’s systems. To the extent Cybernut delivers any updates or enhancements to Customer as part of the support Services, such updates and enhancements will be deemed included in this definition.

i. "Services" means any Web Hosted Services, software, support services, professional services, Training Content, and/or other services that Cybernut offers to Customer, including any applicable documentation.

j. "Subscription Term" means the term set forth in the respective Quote during which the Customer is granted access to the Services in accordance with these Terms.

k. "Training Content" means digital courseware, training modules, testing and training templates, videos, newsletters, security documents, or other content and materials provided by Cybernut.

l. "User(s)" means Customer’s authorized employees or independent contractors, with an assigned unique business email address (i.e., an email address using a business email domain name that Customer owns or is authorized by the domain name owner to use for the purposes contemplated herein), who may access the applicable Services.

m. "Web Hosted Services" means an application and/or database services hosted by Cybernut or its agents, made available for remote access and use by Customer and its Users, under these Terms.

n. "User Data" may include all personally identifiable information (PII) and other non-public information. User data includes, but is not limited to, student data, metadata, and user content.

2. Rights and Licenses In and to Data

Parties acknowledge and agree that all rights, including all intellectual property rights, shall remain the exclusive property of the Customer, and Cybernut has a limited, nonexclusive license solely for the purpose of performing its obligations as outlined in these Terms. These terms do not give Cybernut any rights, implied or otherwise, to any data, content, or intellectual property in the Services, except as expressly stated in these Terms. This includes the right to sell or trade data.

3. Ownership of User Data:

The Services may allow Customer to track and gather a range of User Data and other information regarding employees, agents, independent contractors, and students. Customer shall retain all title to and ownership of and all proprietary rights with respect to User Data, and shall be solely responsible for its use thereof. Customer grants Cybernut a worldwide, royalty-free, and non-exclusive license to access and use User Data for the sole purpose of enabling Cybernut to provide the Services, and for the limited purposes set forth in Cybernut’s Privacy Policy.

4. Eligibility for Cybernut’s Service

If you are entering into an agreement with Cybernut on behalf of a company or other legal entity (including if you are school personnel entering on behalf of the school in which you are employed), you represent that you have the authority to bind such entity to these Terms, in which case "you," "your," or "User" shall refer to such entity. If you do not have such authority, or if you do not agree to be bound by these Terms, you cannot use the Services. If your school or school district has entered into an agreement with Cybernut (“a Participating School District”), and you agree to these Terms, then you are eligible to receive the Services.

5. Grant of Rights to Authorized Users:

Cybernut grants Authorized Users the right to access the Services procured under the applicable agreement. The use of Cybernut’s Services is restricted to Authorized Users only. Unauthorized sharing, distribution, or circulation of the Services to any other individual is strictly prohibited. Any attempt to access or use the content provided within the Services outside the scope of these Terms, or by individuals not authorized by the applicable agreement, is a violation of these Terms.

6. Rights to Access and Use for Educational Purposes:

Subject to Customer’s compliance with these Terms, Cybernut hereby grants Customer the right to access and use the website and the Services provided to Customer through the website. These rights are strictly limited to Customer’s educational, and non-commercial use of the website, Services, and content in connection with Customer’s schoolwork.

7. Payment Terms:

a. Payment for Services. Customer is deemed to have committed to a purchase in full for the Services (regardless of any split payment terms) upon the earlier of: (a) a Quote signed by Customer that is sent to Cybernut or to the respective Cybernut Channel Partner for processing; (b) an attached Purchase Order; or (c) tender of payment by Customer through check, credit card, or other form of payment. Payment via check, credit card, or other form of tendered payment will be deemed acceptance of the corresponding Quote or invoice sent to Customer by Cybernut. If Customer is an organization subject to certain fiscal period restrictions or appropriations, Customer hereby represents and warrants that Customer has the ability to pay all fees, regardless of any split payment terms, in full, out of Customer’s current fiscal period’s allocated budget or that Customer has the authority to legally commit to a purchase outside of the current fiscal period. Except as otherwise specified herein, all sales are final, non-refundable, and non-returnable.

b.Services Fees. The fees for Services will be specified by Cybernut and will be applicable for the period specified in the Quote provided by Cybernut. If no period is specified, pricing will be applicable for thirty (30) calendar days. Notwithstanding the foregoing, prices may be subject to increase upon the renewal of a Quote, or in the event Customer adds on or upgrades the Services during the Subscription Term specified in the Quote. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature including but not limited to, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with any purchase by Customer hereunder. If Cybernut has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Cybernut will invoice Customer and Customer agrees to pay that amount unless Customer provides Cybernut with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of Cybernut, Cybernut is solely responsible for taxes assessable against it based on its income, property, and employees. Except as otherwise specified herein or in a Quote: (a) fees are based on the Services acquired and not actual usage; (b) payment obligations are non-cancelable and fees paid are non-refundable, except where expressly permitted herein; and (c) the Subscription Term and quantities purchased cannot be decreased during the applicable Subscription Term. For clarity, Customer is responsible for any payments owed but not paid by any Affiliates ordering Services hereunder. In the event Customer requires Cybernut to use a vendor payment portal or compliance portal which charges Cybernut a fee or a percentage of any uploaded invoice as a required cost of doing business, Customer shall be invoiced by Cybernut for the cost of any such fees and Customer agrees to pay such fees.

c. Disputed Payments. Customer has the right, in good faith, to dispute all or a portion of an invoice prior to its due date. To exercise this right, Customer must provide Cybernut with written notice of the dispute prior to the due date, specifying the charges in dispute.Customer must also pay all undisputed charges by the due date specified in the Quote or other related document and work diligently with Cybernut to resolve the disputed charges.

d. Credit Approval; Application of Payment; Customer may, from time to time, be subject to credit approval by Cybernut. Customer agrees to submit financial information as may be reasonably requested by Cybernut for the establishment and/or continuation of credit terms. Any payment received from Customer may be applied by Cybernut against any obligation owed to Cybernut by Customer.

e. Channel Partner Purchases. In the event Customer acquires Services through a Channel Partner, all payment-related terms will be set forth in the applicable agreement between such Channel Partner and Customer. Any agreement(s) Customer enters into with a Channel Partner shall be between Customer and the Channel Partner and shall not be binding upon Cybernut.

8. Customer Obligations and Restrictions.

a. Connectivity. Customer is solely responsible for all telecommunication or Internet connections, and associated fees, required to access and use the Services, as well as all hardware and software. Cybernut is not responsible for: (a) Customer’s access to the Internet; (b) interception or interruptions of communications through the Internet; or (c) changes or losses of data through the Internet.

b. User Credentials. Customer will ensure User credentials remain confidentialCustomer, including all Users, agree to not disclose any such credentials to any third party. In addition, Customer will notify Cybernut immediately upon discovery of an unauthorized disclosure of any such credentials or upon any unauthorized access. Upon any termination of the engagement or deactivation of any User with knowledge of any such credentials, Customer will immediately change such credentials and remove access for that User. Customer may only assign Seats to Users with unique email addresses with business domain names that Customer either owns or is authorized to use by the domain name owner in accordance with these Terms and any agreement entered into between Customer and Cybernut.

c. Affiliates. Customer, if purchasing Seats on behalf of an Affiliate, acknowledges and agrees that it is responsible with ensuring its Affiliates comply with these Terms. The use of the Services by the Affiliate and its Users represents acceptance of these Terms by such Affiliate and its Users for which Customer will be jointly and severally liable with its Affiliate for any breach by the Affiliate or its Users of these Terms. No Affiliate may directly enforce any provision of these Terms. All actions to enforce these Terms must be brought by Customer.

d. Restrictions. Customer agrees not to: (a) copy, reproduce, reverse engineer, disassemble, create derivative works from, decompile, or otherwise attempt to reveal the trade secrets or know-how underlying the Services; (b) use Cybernut’s intellectual property or Confidential Information to develop a competitive offering or otherwise copy Cybernut’s content, materials, and/or user interface for the development of similar services; (c) remove or destroy any copyright notices, other proprietary markings, or confidentiality legends placed on or made available through the Services; (d) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Services or the data contained therein (including without limitation penetration or other such security testing); (e) use the Services for competitive analytical, benchmarking, or market research purposes; or (f) use the Services in any manner or for any purpose inconsistent with these Terms or any other agreement entered into between Customer and Cybernut.

e. Customer acknowledges that some of Cybernut’s Services are designed to assist Customer in training Users and may include developing, customizing, and sending fake cyber security attack campaigns for purposes of employee training.Customer further acknowledges and agrees that Customer will be responsible for ensuring compliance with all laws and governmental regulations, and any results in connection with the Customer’s use of the Services (including any reports or information produced in connection therewith).

9. Term and Termination:

a. Term. These Terms will be effective as of the Effective Date provided at the end of these Terms and will remain in full force and effect until all Quote terms have expired or otherwise been terminated.

b. Suspension. Cybernut may, in its sole discretion, suspend Customer’s (or a User’s) use or access to the Services if: (a) Customer is in breach of these Term (including failure to make timely payment in accordance with Section 7); (b) Cybernut believes that such use or access poses a security risk to the Services or to other Customers or users of the Services; (c) it is necessary to prevent damage to, or degradation of, the Services or Cybernut systems; (d) such use or access violates any law, regulation, court order, or other governmental request; or (e) Cybernut suspects fraud or abuse. Cybernut will make commercially reasonable efforts to: (i) limit the suspension to the affected portion of the Services; and (ii) promptly resolve the issues causing the suspension of the Services. Nothing in this clause limits Cybernut’s right to terminate for cause as outlined in these Terms, or ability to terminate any applicable agreement between the Parties in the instance Customer is acting, or has acted, in a manner that violates applicable law.

c. Termination. If Customer fails to pay any invoice when due and does not make such payment within fifteen (15) days after receipt of notice from Cybernut of such failure, Cybernut may, in its sole discretion, either: (a) suspend delivery or performance of any Quote, or any remaining balance thereof, until such payment is made; or (b) terminate any Quote. In either event, Customer will remain liable to pay for the Services. Either Party may choose to terminate the Quote or any other agreement entered into between Customer and Cybernut upon a material breach of the terms outlined in the Quote or other agreement if the breaching Party does not cure the breach within thirty (30) days after receipt of written notice from the other Party specifying the breach.

d. Effects of Termination. In the event the Quote or any applicable agreement between the Parties is terminated by Customer without cause, or by Cybernut for cause, Customer will pay for all Services ordered as of the effective date of termination of the particular Quote. In addition, if a Quote specifies a Subscription Term for which Cybernut will provide Services, including professional Services, to Customer (e.g., thirty-six (36) months), and that Quote is terminated by Cybernut for cause (including nonpayment) or by Customer without cause, then all future, recurring fees associated with the remaining Subscription Term of such Quote will become immediately due and payable, and shall be paid by Customer to Cybernut upon the effective date of such termination.

• In the event Customer terminates the Quote or other applicable agreement for material breach in accordance with these Terms, Customer will be issued a refund for any unusable, pre-paid Services fees for the remainder of the Subscription Term, as applicable, of the affected Services.
• Upon any termination, Customer’s right to use and access the Services (including any Training Content and other materials provided by Cybernut) will immediately cease. Customer acknowledges and agrees that Customer must return or destroy all copies (original and duplicates) of such Services, in accordance with these Terms.
• During an applicable Subscription Term, Customer will have the ability to download a copy of its customer data contained in the Services in the form and format as such customer data exists in the Services. Upon termination or expiration of theSubscription Term, Cybernut will have the right to delete or destroy customer data in its possession.
• The exercise of the right to terminate a Quote will be in addition to any other rights or remedies provided in these Terms, or existing at law or equity, that are not otherwise excluded or limited under these Terms.

10. Warranties and Disclaimers:

a. Service Warranties.The Services will materially conform to the then-current applicable documentation provided to Customer by Cybernut. During the applicable Subscription Term, Cybernut will not materially decrease the overall functionality of the Services. Customer must promptly notify Cybernut of any breach of this warranty. Customer’s sole and exclusive remedy, and Cybernut’s sole and exclusive liability, for a breach of the foregoing warranty will be for Cybernut to provide support Services to repair or replace the relevant Service within thirty (30) days of such notice of non-conformity. If Cybernut is unable to remedy such non-conformity within such period to cure, Customer will be entitled to terminate the relevant Quote and will be issued a refund for any prepaid Services fees for the unusable portion of the Services from the date of Cybernut’s receipt of adequate notice of an actual non-conformity. Cybernut will not be responsible for any breach of the foregoing warranty resulting from Customer’s abuse or misuse of the Services or failure to use the Services as described in these Terms, including failure to use the Services in accordance with its operational requirements described in the applicable documentation, and provided that Customer will not be entitled to any refund or relief of payment obligations if Customer is in breach of these Terms at the time of such termination. Customer is required to sufficiently detail the non-conformity in a manner that allows Cybernut to properly assist with the remediation. Cybernut will not be responsible for delays in remediation caused by Customer’s failure to respond to requests by Cybernut.

b. Compliance Warranties. Each Party warrants that it will comply with all laws and regulations applicable to its provision or use of the Services.

c. Disclaimers.

• EXCEPT FOR THE LIMITED WARRANTIES IN THIS SECTION: (A) THE SERVICES ARE PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND; AND (B) CYBERNUT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CYBERNUT DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE, COMPLETE, OR RELIABLE, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. CYBERNUT EXPRESSLY DISCLAIMS LIABILITY FOR ANY INACCURACIES OR ERRORS IN THE INFORMATION PROVIDED.
• NO ORAL OR WRITTEN INFORMATION, MARKETING, OR PROMOTIONAL MATERIALS, OR ADVICE GIVEN BY CYBERNUT OR CYBERNUT’S AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES PROVIDED HEREIN. CUSTOMER ACKNOWLEDGES THAT TRAINING CONTENT IS FOR GENERAL INFORMATION PURPOSES ONLY AND THAT CYBERNUT IS NOT A LAW FIRM, NOR DOES IT PROVIDE ANY PROFESSIONAL OR ADVISORY SERVICES. THE INFORMATION PRESENTED IS NOT LEGAL ADVICE AND IS NOT TO BE ACTED ON AS SUCH.
• THE SERVICES MAY CONTAIN THE TRADE NAMES OR TRADEMARKS OF VARIOUS THIRD PARTIES AND, IF SO, ANY SUCH USE IS FOR ILLUSTRATIVE AND EDUCATIONAL PURPOSES ONLY. ALL TRADEMARKS AND COMPANY NAMES ARE PROPERTY OF THEIR RESPECTIVE OWNERS. USE OR DISPLAY OF THE TRADEMARKS DOES NOT IMPLY ANY AFFILIATION WITH, ENDORSEMENT BY, OR ASSOCIATION OF ANY KIND BETWEEN SUCH THIRD PARTIES AND CYBERNUT.
• THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT CYBERNUT DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (A) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (B) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO, AND DAMAGE, CUSTOMER DATA, WEBSITES, COMPUTERS, OR NETWORKS. CYBERNUT WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES. FURTHER, CYBERNUT DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD PARTY HOSTING PROVIDERS. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS ACTIONS USING FEATURES OR COMPONENTS OF THE SERVICES THAT INTEGRATE WITH CUSTOMER’S INFORMATION TECHNOLOGY SYSTEMS AND ACKNOWLEDGES THAT CYBERNUT IS NOT RESPONSIBLE FOR: (I) CUSTOMER’S ACTIONS WITHIN ITS SYSTEMS USING SUCH FEATURES OR COMPONENTS; (II) FOR CUSTOMER’S BACKUPS OF ITS INFORMATION TECHNOLOGY SYSTEMS; AND/OR (III) CUSTOMER’S COMPLIANCE WITH APPLICABLE LAW.

11. Indemnification:

a. Standard Exclusions. Cybernut will have no obligation with respect to any claim of infringement to the extent it is based upon or arises out of Customer’s (including its Affiliates and representatives): (a) use or combination of the Services with any third-party intellectual property not authorized by Cybernut; (b) modification or alteration of the Services by Customer, or Customer’s representatives, not expressly authorized by Cybernut or these Terms; (c) use of the Services in excess of the permissible uses set forth in any agreement between Customer and Cybernut; (d) specifications or other intellectual property provided by Customer; or (e) failure to implement updates, modifications, or replacements issued by Cybernut to the Services (collectively, the “Excluded Claims”).

• Process. The foregoing indemnification obligation of Cybernut is contingent upon Customer promptly notifying Cybernut in writing of such claim (provided the failure or delay in doing so will not relieve Cybernut from any obligations to indemnify Customer except to the extent that such delay or failure materially prejudices the defense of such claim), permitting Cybernut sole authority to control the defense or settlement of such claim and providing Cybernut reasonable assistance, at Cybernut’s sole expense, in connection therewith.
• Remedies. If a claim of infringement under this Section 11 occurs, or if Cybernut determines a claim is likely to occur, Cybernut will have the right, in its sole discretion, to either: (a) procure for Customer the right or license to continue to use the Services free of the infringement claim; or (b) modify the Services to make them non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to Cybernut, Cybernut may, in its sole discretion, immediately terminate these Terms and related Quote and provide a prorated refund for any prepaid Services fees for the unusable portion of the Services for the remainder of the applicable Subscription Term. The provisions of this Section 11 state the sole and exclusive obligations and liability of Cybernut and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Services or these Terms, and are in lieu of any implied warranties of noninfringement, all of which are expressly disclaimed.

Customer will defend and indemnify Cybernut from and against any third party claims as a result of any claim by a third party arising from: (a) Customer’s use of the Services in breach of these Terms; (b) Cybernut’s authorized use of the User Data; or (c) the Excluded Claims. Customer agrees to pay any amounts finally awarded by a court of law or pursuant to a settlement in respect of such third party claim (including, but not limited to, reasonable attorneys’ fees). The foregoing indemnification obligation of Customer is contingent upon Cybernut promptly notifying Customer in writing of such claim (provided the failure or delay in doing so will not relieve Customer from any obligations to indemnify Cybernut except to the extent that such delay or failure materially prejudices the defense of such claim), permitting Customer sole authority to control the defense or settlement of such claim, provided that Customer may not settle any such claim unless it unconditionally releases Cybernut of all liability, and providing Customer reasonable assistance (at Customer’s sole expense) in connection therewith.

12. Limitations of Liability.

a. NEITHER CYBERNUT NOR ITS THIRD PARTY PROVIDERS OR LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM, OR ARISING OUT OF, THESE TERMS, THE SERVICES, ANY PROFESSIONAL SERVICES, OR ANY SUPPORT SERVICES RENDERED HEREUNDER, OR INABILITY TO USE THE SERVICES, EVEN IF CYBERNUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF CYBERNUT TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THESE TERMS, THE SERVICES, ANY PROFESSIONAL SERVICES, AND ANY SUPPORT SERVICES RENDERED HEREUNDER FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE HEREUNDER BY CUSTOMER FOR THE SERVICES, INCLUDING ANY PROFESSIONAL SERVICES AND SUPPORT SERVICES AS TO WHICH THE LIABILITY RELATES, IN THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY.

b. CYBERNUT’S LIABILITY IS FURTHER LIMITED IN CASES WHERE: (I) ANY DAMAGE OR LOSS RESULTS FROM CUSTOMER’S FAILURE TO FOLLOW THE OPERATIONAL REQUIREMENTS SPECIFIED IN THE DOCUMENTATION; ANY THIRD-PARTY PRODUCTS, SOFTWARE, OR HARDWARE USED IN CONNECTION WITH THE SUBSCRIPTION SERVICES CAUSE DAMAGE; OR UNAUTHORIZED ACCESS TO CUSTOMER’S DATA OCCURS DUE TO CUSTOMER’S FAILURE TO MAINTAIN SECURITY MEASURES, INCLUDING THE MISUSE OF LOGIN IDS AND PASSWORDS.

c. Both Parties specifically acknowledge that the limitations of liability and the exclusion of certain losses or damages stated in this Section 12 represent the agreed, bargained-for understanding of the Parties and are reflected in the applicable Services fees. These limitations apply to all causes of action, including breach of contract, tort (including negligence), strict liability, or any other legal or equitable theory. The limitation of liability and types of losses or damages stated in these Terms are intended by the Parties to apply, regardless of the form of lawsuit or claim a party may bring, whether in tort (including negligence), contract, or otherwise, and regardless of whether any limited remedy provided for in these Terms fails of its essential purpose.

13. Trade Compliance Restrictions:

a. The sale, resale, or other disposition of Cybernut Services and any related technology or documentation are subject to various economic sanctions, export control laws, and other restrictive trade measures administered by the U.S. and other applicable governments. Because these laws can have extraterritorial effect, you agree that you will comply with all such measures where applicable including, without limitation: (a) the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420) and the Export Administration Regulations, 15 C.F.R. §§ 730-774 ("EAR"); (b) the Arms Export Control Act, 22 U.S.C. § 2778, and the corresponding International Traffic in Arms Regulations ("ITAR"); (c) the economic sanctions laws and regulations enforced by the U.S. Department of the Treasury's Office of Foreign Assets Control ("OFAC"), 31 C.F.R. Part 500 et seq., and the U.S. Department of State; and (d) the anti-boycott regulations, guidelines, and reporting requirements under the Export Administration Regulations and Section 999 of the Internal Revenue Service Code. You understand and acknowledge that you are solely responsible for complying with such laws whenever applicable. You further understand and acknowledge that you shall not directly or indirectly export, import, sell, disclose, or otherwise transfer any Cybernut Services or any related technology or documentation to any country or party subject to such restrictions, and that you are solely responsible for obtaining any license(s) to export, reexport, or import that may be required.

14. Applicable Law & Jurisdiction:

a. While Cybernut provides global products and services, Cybernut’s operations are located in Miami, Florida and these Terms are based on United States law. Access to, or use of, Cybernut’s website or any materials or content made available on or through the website may be prohibited by law in certain countries or jurisdictions. Customer is solely responsible for ensuring compliance with any applicable laws of the country in which Customer is accessing this website. Cybernut makes no representation that the information contained herein is appropriate or available for use in any location.

b. Customer agrees that these Terms are made and partially performed in the State of Florida, and that the state courts located within Miami-Dade County, Florida and the federal district court in the Southern District of Florida, without giving effect to any principles of conflicts of law, shall have exclusive jurisdiction to resolve any controversy or claim of whatever nature arising out of, or relating to, Customer’s access and use of Cybernut’s website, and that the laws of the State of Florida shall govern such dispute or claim. Customer hereby consents and submits to the exercise of personal jurisdiction by such courts for the purposes of litigating any such action, and waives any defenses of lack of minimum contacts or forum non conveniens. Notwithstanding the foregoing, Cybernut reserves the right to bring legal proceedings in any jurisdiction where we believe that infringement of these Terms may be taking place or originating.

FERPA and California AB 1584:

Regarding FERPA and California AB 1584 (Buchanan) Privacy of Pupil Records: 3rd-Party Digital Storage & Education Software (Education Code section 49073.1), Cybernut will abide to the following:

1. Student records obtained by Cybernut from an educational institution continue to be the property of and under the control of the educational institution. The educational institution retains full ownership rights to the personal information and education records it provides to Cybernut.
2. Cybernut users may retain possession and control of their own generated content by Cybernut.
3. Cybernut will not use any information in a student record for any purpose other than those required or specifically permitted by the Cybernut Privacy Policy.
4. Parents, legal guardians, or eligible students may review personally identifiable information in the student’s records and correct erroneous information by contacting their educational institution. Additionally, Cybernut users, when applicable may access, correct, update, or delete personal information in their profile by signing into Cybernut, accessing their Cybernut account, and making the appropriate changes.
5. Cybernut is committed to maintaining the security and confidentiality of student records. Towards this end, we take the following actions: (a) we limit employee access to student data to only those employees with a need to such access to fulfill their job responsibilities; (b) we conduct background checks on all Cybernut employees that may have access to student data; (c) we conduct regular employee privacy and data security training and education; and (e) we protect personal information with technical, contractual, administrative, and physical security safeguards in order to protect against unauthorized access, release or use.
6. In the event of an unauthorized disclosure of a student’s records, Cybernut will promptly notify Users unless specifically directed not to provide such notification by law enforcement officials. Notification shall identify: (i) the date and nature of the unauthorized use or disclosure; (ii) the private data used or disclosed; (iii) general description of what occurred including who made the unauthorized use or received the unauthorized disclosure; (iv) what Cybernut has done or shall do to mitigate any effect of the unauthorized use or disclosure; (v) what corrective action Cybernut has taken or shall take to prevent future similar unauthorized use or disclosure; and (vi) who at Cybernut the User can contact. Cybernut will keep the User fully informed until the incident is resolved.
7. Cybernut will delete or de-identify personal information when it is no longer needed, upon expiration or termination of the agreement entered into between Cybernut and an educational institution with any deletion or de-identification to be completed according to the terms of the applicable agreement with the educational institution, or at the direction or request of the educational institution.
8. Cybernut agrees to work with educational institution to ensure compliance with FERPA and the Parties will ensure compliance by providing parents, legal guardians or eligible students with the ability to inspect and review student records and to correct any inaccuracies therein as described in statement (4) above.
9. Cybernut prohibits using personally identifiable information in student records to engage in targeted advertising.

Effective Date: September 20, 2024