Terms of Service
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EFFECTIVE DATE: 5/22/23
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1. INTRODUCTION
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Please read these Terms of Service carefully before using the Cy Platform.
The Cy Platform and services are provided by WBI Investments, LLC, and CyborgTech, LLC, both Delaware limited liability companies (Collectively, "WBI-Cy", "we" "us" or "our"). These Cy Terms of Service (as updated from time to time by WBI-Cy, these "Terms of Service") govern your access to and use of the www.investwithcy.com website (the "Cy Platform"). The Cy Platform enables you to access Content, products and services available on or provided through the Cy Platform (collectively, "Services"). The term “you” or “your” shall refer to any person or entity who views, uses, accesses, browses or submits any content or material to the Cy Platform. The term “Content” means all information, text, images, data, links, software, or other material. The term “Cy Content” means Content that is available on the Cy Platform or through the Services, whether created by us or provided by another person.
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Access to the Cy Platform and purchase and use of the Services is subject to these Terms of Service and the privacy policy available on the Cy Platform (the “Privacy Policy”), along with any additional terms that we may require you to accept when you sign up for the Services.
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Please read the Privacy Policy and familiarize yourself with how we collect and use information provided on the Cy Platform.
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A. Electronic Signature and Disclosure Consent Notice
You agree to the use of electronic documents and records in connection with your registration for or other use of the Cy Platform and Services and for all future documents and records in connection with the Cy Platform—including without limitation this electronic signature and disclosure notice—and that this use satisfies any requirement that we provide you in writing these documents and obtain your written consent to such use of electronic documents and records. If you do not agree to such use of electronic documents and records, do not accept these Terms of Service. You may obtain a paper copy of such document or information, but WBI-Cy may charge you a fee for such paper copies. You may withdraw your consent to the use of electronic documents and records, but if you do so, WBI-Cy may terminate its relationship with you and you will no longer be permitted to purchase or access the Services through the Cy Platform. You may update your contact information at any time on the Cy Platform. To receive or access electronic documents and records, you must have the following equipment and software: (a) a device that is capable of accessing the Internet; (b) an Internet browser that supports at a minimum HTML 4.0 and 128-bit SSL encryption; and (c) software that permits you to receive and access Portable Document Format or “PDF” files. To retain documents and records, your device must have the ability to download and store PDF files. Your access to this page verifies that your system and device meets the above receipt, access, and retention requirements. Your clicking on the “I Agree” button (or otherwise proceeding with the Cy account signup process or the use of the Cy Platform) indicates your signature and your acceptance of this notice.
B. Acceptance of Terms
By visiting or using the Cy Platform or Services, you agree to be bound by and abide by these Terms of Service, including the disclaimers and limitations of liabilities contained herein. If you do not agree with any term or condition in these Terms of Service, you are not permitted to access or use the Cy Platform or any Service. These Terms of Service form a binding legal agreement between you and WBI-Cy, and you are prohibited from accessing or using the Cy Platform and Services unless you have accepted and abide by these Terms of Service.
C. Minors
The Cy Platform and Services are intended only for, and may only be used by, individuals who are 18 years or older and who can form legally binding contracts under applicable law. Individuals under the age of 18 can use the Cy Platform and Services only in conjunction with and under the supervision of a parent or legal guardian. In this case, the supervising adult is deemed to be the user and is responsible for any and all activities, subscriptions and purchases.
D. Eligibility for Use
We may, in our sole discretion, refuse to offer access to the Cy Platform or the Services to any person or entity for any (or no) reason and at any time and we may change the eligibility criteria for the Services at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations (collectively, “laws”) applicable to you. You are not permitted to, and shall not, access the Cy Platform or use the Services where (i) these Terms of Service (or any material part thereof) may be restricted or prohibited by applicable laws, (ii) use or provision of the Services is prohibited, or (iii) to the extent WBI-Cy’s offering, sale or provision of the Services conflicts with any applicable law. Further, the Services are offered only for your own personal use, and not for the use or benefit of any third party.
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E. Modifications to Terms
We may change these Terms of Service at any time for any reason by updating this posting. You are responsible for periodically reviewing these Terms of Service for revisions. Changes to these Terms of Service will be effective when posted. If WBI-Cy makes a change that WBI-Cy, in its sole and absolute discretion, deems to be a material change, WBI-Cy will notify you here in these Terms of Service or by any other means we deem appropriate. Your use of the Cy Platform and/or the Services after we have modified this posting will constitute your acceptance of any changes.
2. YOUR USE OF THE CY PLATFORM
A. Your Account and Information
To use the Cy Platform and Services, you must register for an account on the Cy Platform and provide information about yourself as prompted by the site registration form. As part of the registration for the Cy Platform, you will use your true legal name and true electronic mail address, and only provide true, accurate and complete information on the Cy Platform and notify us immediately of any change in such information. You will maintain and update your account information on the Cy Platform to ensure that it is current, complete and correct at all times.
WBI-Cy reserves the right to refuse or reject any request to create an account for any or no reason at WBI-Cy’s sole discretion. You are solely responsible for your account, your contact information and other information made available through your account or otherwise via the Cy Platform. You will use reasonable care to protect the confidentiality of your log-in information for your account and will not share it with any other person. You will notify us promptly of any loss or unauthorized use or access of any of your login credentials, including passwords, or identifications. We are not responsible for losses or damage caused by your failure to safeguard your login and password. You are responsible for all of your activities that occur within, through or as a result of your access or use of the Cy Platform or Services, whether or not such activities are authorized or known by you. You are also responsible for all activities that occur within, through or as a result of access or use of the Cy Platform or Services by a person who uses your login credentials or identity, whether or not such access, use or activities are authorized or known by you.
You agree that WBI-Cy may, and may permit others to, use, copy, display, reproduce, distribute, modify, translate, remove, analyze, and prepare derivative works based upon, the information that you provide in connection with your use of the Cy Platform for purposes of providing to you the Cy Platform and Services and as otherwise described in these Terms of Service and the Privacy Policy.
B. License to Use the Cy Platform and Cy Content
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Subject to your compliance with these Terms of Service, WBI-Cy grants to you a personal, limited, revocable, non-assignable, non-transferable, non-exclusive license to (i) access and make personal use of the Cy Platform solely for the purpose of reviewing Cy Content and for purchasing Services, and (ii) view, copy, download, and print Cy Content, so long as such Content is used solely for your personal or internal informational purposes in accordance with these Terms of Service, provided that you retain, on any copies of Cy Content, all copyright and other proprietary notices and disclosures contained on the original Content. Neither the Cy Platform, nor the Services, nor any portion thereof, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording for any other purpose, without WBI-Cy’s express written consent.
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Except to the extent expressly permitted by the limited license granted to you in the preceding paragraph, you are not permitted to and will not use, copy, reproduce, modify, adapt, display, perform, publish, create derivative works from, store, sublicense, translate, transfer, sell, rent, or reverse engineer, decompile or disassemble (except to the extent prohibitions on reverse engineering, de-compilation and disassembly are not permitted under applicable law) or otherwise exploit the Cy Platform, Services or Cy Content without the explicit prior written consent of WBI-Cy.
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C. Your Use of the Cy Platform
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By accessing or using the Cy Platform, you agree that you will not use the Cy Platform in any way that, or take any action or upload, download, post, submit or otherwise distribute or facilitate distribution of any Content in any way that:
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• is unlawful, threatening, violent, abusive, hateful, defamatory, slanderous, libelous, deceptive, fraudulent, tortious, indecent, vulgar, profane, obscene, or that WBI-Cy deems in its sole discretion to be inappropriate;
• misrepresents the relationship between WBI-Cy and your client to imply that WBI-Cy is conducting any suitability assessment or acting as a discretionary manager to your client,
• may harm WBI-Cy, its service providers, or any other person or entity;
• constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling
• violates or infringes the rights of anyone else;
• impersonates any person or entity, including any of our employees or representatives.
• gains or tries to gain unauthorized access to the Cy Platform or any portion thereof, WBI-Cy’s computers and networks, or WBI-Cy’s user data, or that otherwise modifies or interferes with the use or operation of the Cy Platform;
• imposes an unreasonable or disproportionately large load on WBI-Cy’s or its business partners’ infrastructure, including, without limitation, transmitting spam or using other unsolicited mass emailing techniques;
• alters, damages, or deletes any Content provided by WBI-Cy or others, or removes or modifies any copyright or other intellectual property notices that appear on the Cy Platform;
• contains computer viruses or other disruptive, damaging or harmful files or programs; or
• otherwise violates these Terms of Service or any other guidelines or policies provided by WBI-Cy;
In addition, you represent, warrant and covenant that:
• the information and any other Content that you may provide using the Cy Platform does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party; complies with all applicable local, state, provincial, national and other laws, rules and regulations; and does not violate these Terms of Service;
• you have the right to provide to WBI-Cy the information and any other Content that you may provide using the Cy Platform;
• you will use your true legal name and true electronic mail address, and only provide true, accurate and complete information on the Cy Platform;
• you will not impersonate another person or entity or misrepresent your affiliation with another person or entity, such as by using another person’s or entity’s username, password or other account information or another person’s or entity’s name, likeness, image or photograph;
• you are at least 18 years of age, or the legal age of majority where you reside;
• you have all requisite rights and authority to use the Cy Platform and to enter into these Terms of Service;
• the performance of your obligations under these Terms of Service will not violate, conflict with, or result in a default under any other agreement, including, without limitation, confidentiality agreements between you and third parties; and
• your use of the Cy Platform will be In accordance with all applicable laws and you are solely responsible for the contents of your communications through the Cy Platform.
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3. CY MODEL PORTFOLIO SERVICES
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A. Subscribing to the Cy Model Portfolio Services
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The Cy Model Portfolio Services (defined below) subscriptions can be purchased at www.wbicy.com (the “WBI Website”). To purchase a subscription to the Cy Model Portfolio Services through the Cy Platform (a "Cy Platform Subscription"), you will be required to register for an account on the WBI Website. After you register for an account, you will be permitted to apply for a Cy Platform Subscription. We will notify you whether your application has been rejected or accepted, which notice will be provided using the email address that you provided when you registered for your account on the WBI Website. All Cy Platform Subscriptions are (i) contingent upon written application approval from WBI-Cy ("Cy Platform Subscription Approval") and (ii) subject to such Cy Platform Subscription Approval and these Terms of Service. Cy Platform Subscriptions for which we have provided to you a Cy Platform Subscription Approval are referred to as “Approved Cy Platform Subscriptions”.
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In addition to offering Cy Model Portfolio Services through the Cy Platform, WBI-Cy offers Cy Model Portfolio Services directly to customers through other channels. Orders for Cy Model Portfolio Services through such other channels will be governed by terms and conditions specified separately by WBI-Cy.
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Note, each Approved Cy Platform Subscription permits use of the Cy Model Portfolio Services solely by one individual. If multiple affiliated advisers intend to use the Cy Model Portfolio Services, they will need to purchase a separate Cy Platform Subscription, and pay to WBI-Cy the applicable Purchase Amount, for each such individual.
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B. Pricing for Cy Model Portfolio Services
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A Cy Platform Subscription Approval confirms your price for purchasing a subscription to the Cy Model Portfolio Services (the “Purchase Amount”). All prices are quoted in US dollars and are non-refundable, net prices that do not include value added, sales or other taxes, each of which, if applicable, will be payable by you in the amount specified by applicable law. Additional taxes or charges, including, without limitation, foreign exchange transaction fees, will be borne by you.
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C. Your Credit Card Information
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By submitting your credit card information, you grant WBI-Cy the right to store and process your information with any third party payment service; and you agree that WBI-Cy will not be responsible for any failures of the third party payment service to adequately protect such information. All matters regarding your payment information and your interactions with a third party payment service are subject to the conditions of the third party payment service provider's terms of service. You acknowledge that we may change the third party payment service we use and move your information to other service providers that encrypt your information using secure socket layer technology (SSL) or other comparable security technology.
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D. Description of Cy Model Portfolio Services
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Upon creation of your account on the Cy Platform, or when subsequently logging into the Cy Platform, you will have the option to enter information (the “Optimization Information”) about the risk profile and rate of return requirements, in addition to other fields, that will inform the optimization engine about which optimized portfolio to display. Certain programs on the Cy Platform require very few pieces of Optimization Information while others allow for a significant amount of client Optimization Information to be entered in order to provide a more customized result. Changing the Optimization Information may alter which optimized portfolio is displayed.
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E. Subscription Plans
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WBI-Cy may offer various types of subscription purchase plans, including, without limitation, monthly and annual subscriptions of various dollar amounts (each, a “Subscription Plan”).
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AUTOMATIC RENEWAL TERMS
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When you sign-up for a Subscription Plan, you will be required to (i) provide us with your credit card information, (ii) expressly agree that we may charge your credit card on a recurring basis without further authorization from you, and (iii) agree to the amount of the charges that we may charge you on a recurring basis (such charges, “Recurring Charges”). Once you satisfy these requirements, WBI-Cy may charge your credit card account the full amount of the Recurring Charges, on a monthly or annual basis (such period, the “Subscription Period”) without any further authorization from you, until you notify WBI-Cy that you wish to terminate such authorization and cancel your Subscription Plan or that you wish to update your credit card information or change the type of Subscription Plan you are purchasing. Information on how to cancel or change your Subscription Plan is described below. WBI-Cy may use a third party payment service to effect charges to your credit card.
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YOUR RESPONSIBILITY TO PAY FOR SUBSCRIPTION PLANS
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By purchasing a Subscription Plan, you agree and acknowledge that your Subscription Plan has an initial and recurring charge equal to the Recurring Charges and you are liable for all Recurring Charges for your Subscription Plan until the date you cancel your Subscription Plan. Please note that your liability for Recurring Charges will continue regardless of the expiration or cancellation of your credit card.
For your convenience and continuous subscription benefits as a subscriber to the Cy Model Portfolio Services, if your credit card reaches its expiration date and you do not edit your credit card information on the WBI Website or cancel your Approved Cy Platform Subscription at least 60 days before the start of the next renewal of the Subscription Period, you authorize us to continue billing that credit card on file including extending the expiration date until we are notified by you or the credit card company that the account is no longer valid. We encourage you to constantly update your credit card information on the WBI Website or cancel your Approved Cy Platform Subscription prior to renewal (should you wish to discontinue and not renew your subscription). We are not responsible for any fees or charges your issuing bank or credit card provider may charge you. If your payment to us is returned for any reason, you authorize us to continue billing your credit card on file and seek payment by another method until payment is received. If WBI-Cy has not collected full payment of the Payment Amount or any other fees owed by you within ten (10) business days after charging your credit card, WBI-Cy shall send you notice of such delinquent amount. In addition to WBI-Cy’s other rights and remedies under these Terms of Service, if WBI-Cy has not collected full payment of such delinquent amount, WBI-Cy may, in its sole discretion, immediately suspend your access to and use of the Services and Cy Platform permanently or until such delinquent amount is paid.
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Automatic Monthly and Annual Renewal Terms
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Your Subscription Plan will be renewed automatically for successive Subscription Periods (either monthly or annually, depending on the Subscription Plan you purchased) and your credit card will be charged automatically for each successive Subscription Period at the applicable Recurring Charges until you cancel your Subscription Plan renewal.
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If you do not want your Subscription Plan (whether annual or monthly), to renew, you are responsible for cancelling your plan prior to its renewal, as described below.
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Cancellation Policy for Subscription Plan Renewals
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To cancel your Subscription Plan for the following Subscription Period, you may at any time send us a message at help@wbicy.com and we will cancel your plan for you. However, to be effective, your cancelation request must be received by us at least sixty (60) days prior to the start of the next Subscription Period. All cancellation requests not received by WBI-Cy within such 60-day period will apply to the following Subscription Period renewal. Once you cancel your Subscription Plan, we will not charge your credit card Recurring Charges for the next Subscription Period billing cycle. However, your Subscription Plan will remain active until the end of your then-current Subscription Period.
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CHANGES TO SUBSCRIPTIONS PLANS
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We reserve the right to change the Subscription Plans that we offer, in any respect and at any time as we may determine in our sole discretion. Except as otherwise expressly provided for in these Terms of Service, any price changes or changes to your Subscriptions Plan(s) will take effect following our sending notice to you, at the email address you provided to us when you signed up for your WBI-Cy account.
In addition to our other rights under these Terms of Service, we reserve the right to cancel your Subscription Plan at any time as a result of a violation of these Terms of Service or the Privacy Policy.
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4. THIRD PARTY CONTENT; DISCLAIMERS
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A. Third Party Websites
The Cy Platform and the Services may include links that will take you to other websites outside of the Cy Platform or the Services, including websites operated by third parties that are not affiliated with WBI-Cy (collectively, “Linked Sites”). WBI-Cy has no control over the Linked Sites and you therefore acknowledge and agree that we have no responsibility for the information, Content, products, services, advertising, code or other materials which may or may not be provided by or through any Linked Site. You further acknowledge and agree that WBI-Cy is not responsible for any form of transmission received from a Linked Site. The Linked Sites are provided by WBI-Cy as a convenience, and links to Linked Sites do not constitute an affiliation or endorsement by us of such websites or the Content, products, services, advertising, code or other materials presented on or through such Linked Sites.
WBI-Cy is not responsible for losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and attorneys’ fees arising from your access or use of any information, Content, products, services, advertising, code or other materials which may or may not be provided by or through any Linked Site. YOU WILL ACCESS OR USE ANY OTHER SERVICES ENTIRELY AT YOUR OWN RISK AND YOU ARE RESPONSIBLE FOR YOUR COMPLYING WITH TERMS AND CONDITIONS APPLICABLE TO YOUR ACCESS OR USE OF OTHER SERVICES.
B. No Implied Endorsements
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Unless specified otherwise, any reference to any third party or third party product or service shall not be construed as an approval or endorsement by WBI-Cy of that third party or of any product or service provided by that third party. Likewise, a link to any third party website or third party advertisement does not imply that we endorse or accept any responsibility for the Content or use of such website. WBI-Cy does not endorse, warrant or guarantee any product or service offered by any third party through an online discussion medium accessible through the Cy Platform or Services and will not be a party to or in any way monitor any transaction involving any third party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you are responsible for exercising appropriate judgment and caution.
C. Accuracy of Content
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WBI-Cy makes no warranties as to the accuracy, completeness or timeliness of any of any Content provided as part of the Cy Platform or any Service. Such Content may contain typographical errors, other inadvertent errors or inaccuracies and WBI-Cy assumes no liability or responsibility for any errors or omissions on the Cy Platform or in the Services. We reserve the right, in our sole discretion and at any time, to make changes to document names and Content, descriptions or specifications of services or other information without obligation to issue any notice of such changes.
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D. Security of Communications
Without limiting the terms of our Privacy Policy, you understand that we do not guarantee that your access or use of the Cy Platform or the Services or that your data or confidential information will be private or secure. We are not responsible or liable to you for any lack of privacy or security that you may experience. Information collected by your internet or mobile service provider and other third parties is used, stored, transferred and disclosed pursuant to your internet or mobile service provider’s or the third party’s terms, policies and practices. We encourage you to carefully consider disclosure of any information that might be accessible to others. You are fully responsible for taking precautions and providing security measures best suited for your situation and intended use of the Cy Platform and Services.
E. Disclaimers
To the maximum extent permitted by applicable law, the Cy Platform and the Services are made available “as-is,” “with all faults,” and “as available”. You bear all risk of your accessing and using the Cy Platform and the Services, and any output or other results from the Services. WBI-Cy, on behalf of itself and its affiliates, and its and their respective vendors, licensors, agents, and suppliers give no warranties, guarantees, or conditions of any kind, whether express, implied (either in fact or by operation of law) or statutory, as to the Cy Platform or the Services. WBI-Cy expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, infringement, and title.
Without limiting the foregoing, WBI-Cy does not warrant that (a) the Services will be accurate or meet your requirements, (b) access, use and operation of the Cy Platform or the Services will be uninterrupted or virus- or error-free, (c) the Cy Platform and the Services will operate or be compatible with any other applications or any particular systems or devices, (d) defects in the Cy Platform and the Services will be corrected, or (e) the results of the Cy Model Portfolio Services will have any particular future performance. Any oral or written advice provided by WBI-Cy or its authorized agents is gratuitous and will not be deemed to create any representation, warranty or obligation of WBI-Cy. You are responsible for the accuracy and completeness of all data you provide to us or input into the Services, and WBI-Cy expressly disclaims any and all liability for harms arising from inaccuracy or incompleteness of such data.
Some jurisdictions do not allow the exclusion of implied warranties so some or all of the above exclusions may not apply to you.
We make no representation that information on the Cy Platform or the Services we provide are appropriate or available for use outside the United States. Those who choose to access the Cy Platform or the Services from outside the United States do so on their own initiative and at their own risk and are responsible for compliance with applicable local laws.
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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.
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If you access or use the Cy Platform or Services on a mobile device, you are solely responsible for all message and data fees charged by your wireless service providers. Please contact your mobile service provider for pricing plans and details. WBI-Cy is not liable for any delays, interruptions or other transmission errors related to your devices, services or wireless service providers.
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5. PRIVACY
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The Cy Platform Privacy Policy is available at www.investwithcy.com. This Privacy Policy may change from time to time, so review it with regularity and care. The Privacy Policy governs how the information that you provide from your use of the Cy Platform or Services may be collected, used and disclosed by WBI-Cy. By using the Cy Platform or Services, you consent to this collection, use, and disclosure by WBI-Cy.
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The Cy Platform Privacy Policy does not cover the practices of Linked Sites (as defined above). Such third parties may have their own privacy policies regarding their own policies and practices regarding your information. You are responsible for reviewing the privacy policies of such Linked Sites. WBI-Cy is not responsible for what a Linked Site may do or not do with your information that you provide.
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6. SUBMISSION OF FEEDBACK/CONTRIBUTIONS
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Any feedback, evaluations, suggestions and comments that you or your employees or agents provide to WBI-Cy (in whatever format) on or through the Cy Platform or Services, and all improvements, updates, modifications or enhancements to the Cy Platform or the Services (including any based on or resulting from any of that feedback, evaluations, suggestions or comments) (collectively, “Contributions”) are and will be owned exclusively by WBI-Cy. You, on your behalf and on behalf of your employees and agents, will and hereby do assign to WBI-Cy, irrevocably and without further consideration, any and all U.S. and foreign right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights (collectively, “Intellectual Property Rights”)) that you or they may have in and to any and all Contributions.
You agree that providing any Contribution does not give you or any of your employees or agents any rights in or to the Cy Platform, the Services or any portion thereof. WBI-Cy may use and disclose the Contributions for any purpose, including for incorporation into the Services, without any requirement to provide you, your agents or employees any notice or compensation. By submitting Contributions, you represent and warrant to WBI-Cy that you have all necessary rights in and to such Contributions and all information they contain and that such Contributions do not infringe any Intellectual Property Rights or any other rights of any third party or contain any libelous, tortious, or otherwise unlawful information. If we request, you will, and will cause your employees and agents to execute any document, registration or filing required to give effect to the foregoing assignment.
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7. INTELLECTUAL PROPERTY
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A. Ownership of the Cy Platform and Services
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WBI-Cy and its licensors own all right, title and interest in and to the Cy Platform and the Services (including all WBI-Cy Content), and of all related Intellectual Property Rights. You acknowledge and agree that all WBI-Cy Content is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. Product names are trademarks or registered trademarks of their respective owners.
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Except for the limited license granted to you in Section 2(B) of these Terms of Service, nothing contained in these Terms of Service provides to you any right, title or interest in or to or ownership of the Cy Platform or Services or any Content, or any copies or modifications or improvements, or to or under any of WBI-Cy’s or its licensors' Intellectual Property Rights.
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B. Cy Processed Data
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In providing the Services., WBI-Cy may generate data about your use of the Cy Platform and Services, including by anonymizing, normalizing, analyzing, mapping, aggregating and otherwise processing Your Content (defined below) (collectively, “Cy Processed Data”). You agree that WBI-Cy shall not be liable for any damages caused by your Content. WBI-Cy owns and at all times shall retain all right, title and interest in and to, including all Intellectual Property Rights related to, the Cy Processed Data. If you purchase an Approved Cy Platform Subscription (defined below), then during the applicable Subscription Period (defined below), WBI-Cy grants to you, solely for your own business purposes, a non-exclusive, non-transferable, royalty free, worldwide right and license to use the Cy Model Portfolio Services data provided to you by WBI-Cy and to use the Cy Platform to access such Cy Model Portfolio Services.
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C. Your Content
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1. Ownership of Your Content.
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As between you, on the one hand, and WBI-Cy, on the other hand, you are the sole owner of the data and other Content that you upload to the Services through the Cy Platform and pertaining to you or your business (such Content, but expressly excluding all Excluded Data (defined below) and Contributions, (“Your Content”), and these Terms of Service do not provide WBI-Cy with title or ownership of Your Content.
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You warrant and represent that you have the right to provide to WBI-Cy all of Your Content, and you will provide all of Your Content in accordance with all applicable laws, including, without limitation, 15 U.S.C. §§6801-6809 (the Gramm-Leach-Bliley Act) – “Protection of nonpublic personal information” and 16 C.F.R. §313.13 – “Exceptions to opt out requirements for service providers and joint marketing,” Securities and Exchange Commission (SEC) Regulation S-P, and any state laws relating to the sharing of data related to clients in the jurisdictions where the clients’ data is derived, including any notice requirements, privacy policies, and/or data sharing agreements necessitated under such laws. WBI-Cy may, in our sole discretion, include functionality within the Services to enable you to share access (but not ownership) of Your Content with third parties.
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2. License to Your Data.
You shall and hereby do grant to WBI-Cy a perpetual, irrevocable, royalty free, fully paid up, worldwide right and license to copy, use, distribute, display, adapt, modify, publicly perform and publicly disclose, and create derivative works based upon, Your Content prior to and after the end of the last Subscription Period (defined below) for any purpose determined to be appropriate by WBI-Cy, including, without limitation: (i) to provide Services to you, to generate data, and perform WBI-Cy’s obligations under these Terms of Service; (ii) to monitor for security and compliance purposes your access and use of the Cy Platform and Services; (iii) to perform statistical and other analysis, including to improve the Cy Platform and the Services; and (iv) to enforce these Terms of Service. The license granted in this Section is (A) sublicensable and assignable by WBI-Cy, in whole or in part, to any of its affiliates, co-marketers, co-developers and successors, and (B) in addition to our rights in Contributions, as provided above.
3. Excluded Data.
You will not provide to WBI-Cy any of the following (in any format) or upload any of the following (in any format) in using the Services or accessing the Cy Platform: any personal health information; biometric information; social security numbers; credit report information; debit or credit or payment card information or bank or other financial account information or other financial or credit data (other than your payment information provided in your purchase of an Approved Cy Platform Subscription) (collectively, “Excluded Data”). Notwithstanding anything to the contrary contained herein, except to the extent required by applicable law that cannot be waived, WBI-Cy will not have any obligation or liability hereunder or otherwise with respect to Excluded Data.
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D. No Implied Rights
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WBI-Cy reserves all rights not expressly granted to you in these Terms of Service. Nothing contained on the Cy Platform or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Cy Platform, Services or any Cy Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms of Service; or (b) with our prior written consent or the consent of such third party that may own the trademark or copyright of material displayed on this Cy Platform.
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E. Requests to Remove Content
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Our policy is to respect the intellectual property of others, and we ask you to do the same. If you or any user of the Cy Platform or Services believes its copyright, trademark or other property rights have been infringed by a posting on the Cy Platform or use as part of the Services, you or the user should send notification to our Designated Agent (defined below) immediately. To be effective, the notification must include:
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a. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b. Identification of the copyrighted work claimed to have been infringed;
c. Information reasonably sufficient to permit us to contact the complaining party, such as address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
d. Identification of the material that is claimed to be infringing or to be subject to infringing activity and that is to be removed and information reasonably sufficient to permit us to locate the materials;
e. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or the law; and
f. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringing.
Pursuant to the Digital Millennium Copyright Act, 17 U.S.C.A. Sec. 512(c), our Designated Agent for Notice of claims of copyright infringement can be reached as indicated below. Service of repeat infringers of copyright or of users about whom repeat claims of copyright infringement are received will be terminated.
Designated Agent for Claimed Infringement:
WBI Investments, LLC
One River Center
331 Newman Springs Rd, Suite 143
Red Bank, NJ 07701
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You acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may immediately remove the identified materials from the Cy Platform without liability to you or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
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8. LIMITATION OF LIABILITY AND INDEMNITY
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A. Limitations on Liability.
To the extent maximum extent permitted by applicable law, WBI-Cy’s total liability with respect to any claim (or group of related claims) by you arising out of or related to these Terms of Service or any Service, including the delivery, access, use, availability, lack of availability or performance or non-performance of the Cy Platform, the Services or the Cy Content (whether such claim is for breach or noncompliance or otherwise and whether in contract, strict liability, negligence or tort or under any other theory of liability), will not exceed the total amount paid by you to WBI-Cy with respect your access to and use of the Cy Platform and Services in the six (6) months preceding the first assertion of that claim (or the first of the group of related claims) (or, if you have not paid any amounts to WBI-Cy during such 6-month period, $50).
B. Damages Disclaimer.
To the maximum extent permitted by applicable law, WBI-Cy will not be liable to you, any other authorized user or any third party for indirect, special, exemplary, incidental, consequential and punitive damages (including, but not limited to, costs of procurement of substitute services, loss of use, loss of data, loss of content, loss of profits or revenue, loss of goodwill or business interruption), however caused and under any theory of liability, whether under these Terms of Service or any Service or otherwise arising in any way in connection with our agreement or the delivery, access, use, availability, lack of availability or performance or non-performance of the Cy Platform, the Services and the Cy Content (whether such claim is for breach or noncompliance or otherwise and whether in contract, strict liability, negligence or tort or under any other theory of liability), even if WBI-Cy has been advised of the possibility of that damage or if your remedy otherwise fails of its essential purpose. You agree not to assert a claim for or seek to recover any damages disclaimed under this section. This disclaimer of liability will not apply to the extent prohibited by applicable law.
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C. Essential Terms
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You expressly agree that the above limitations of liability and damage disclaimers, together with the other provisions in these Terms of Service that limit liability and damages, are essential parts of these Terms of Service and that WBI-Cy is not and would not be willing to grant you the rights set forth in these Terms of Service or provide the Services to you, without your agreement to these limitations of liability and damages disclaimers.
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NOTHING IN THESE TERMS OF SERVICE EXCLUDES A PARTY’S LIABILITY FOR MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED UNDER APPLICABLE LAW, OR LIMITS A PARTY’S LIABILITY FOR MATTERS FOR WHICH LIABILITY CANNOT BE SO LIMITED UNDER APPLICABLE LAW.
D. Indemnification by You.
You agree to indemnify, defend and hold WBI-Cy, its affiliates, and its and their respective officers, directors, employees, agents and suppliers, harmless from and against all claims arising out of or relating to (i) your actions, including but not limited to, your use of or inability to use the Cy Platform, the Services, or any Cy Content, (ii) any information or other Content you submit, post, transmit, or make available via the Cy Platform or Services, (iii) any claims by your clients about the suitability or performance of their investments made by you based on the Cy Content or any other Services, including any disclosure of or reliance on such Cy Content you or any third party, (iv) your failure to safeguard passwords or other account information, or (v) your violation of these Terms of Service, any applicable law or regulation, or the rights of any third party.
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9. SUSPENSION AND TERMINATION
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A. Suspension or Termination by WBI-Cy
WBI-Cy may suspend or terminate your access to all or any part of the Cy Platform and/or the Services (including, without limitation, with respect to a particular Approved Cy Platform Subscription) at any time and for any reason, including, without limitation, for any violation of these Terms of Service. In the event of termination, you are no longer authorized to access or use the Cy Platform or Services that are subject to such termination, and you shall have no recourse and WBI-Cy shall have no liability as a result of any such suspension or termination. All provisions of these Terms of Service relating to warranties, indemnities, confidentiality obligations, proprietary rights, disclaimers, and limitation of liability shall remain effective despite such termination.
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WBI-Cy reserves the right to add, delete or otherwise modify the features or functionality of, or terminate and suspend the operation of, the Cy Platform and Services (or any portion thereof), without notice or liability, at any time and for any or no reason in its sole and absolute discretion.
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B. Cancellation of Account by You
You may choose to cancel your account upon at any time by contacting WBI-Cy via the contact information below. If you cancel your account you will no longer be permitted to access or use the Services. Please note the terms of automatic renewal in Section 3(E).
Notices should be sent to:
WBI Investments, LLC
One River Center
331 Newman Springs Rd, Suite 143
Red Bank, NJ 07701
C. Refund Policy.
It is generally the policy of WBI-Cy to not provide refunds. For the avoidance of doubt, you are not entitled to a refund if your subscription is terminated or suspended by WBI-Cy.
D. What happens to Your Content.
If you do not renew your Approved Cy Platform Subscription before the expiration of the then current Subscription Period, or if WBI-Cy terminates your Approved Cy Platform Subscription, WBI-Cy may, at its option, retain a copy of Your Content or it may delete Your Content at any time, in either case in accordance with the Privacy Policy. If WBI-Cy retains Your Content, you may request WBI-Cy in writing to make available a copy of Your Content that has been kept by WBI-Cy. WBI-Cy may charge a fee for providing such copy.
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10. CONFIDENTIALITY
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A. General
Subject to WBI-Cy’s right to share and disclose access to Contributions and your Content as provided in these Terms of Service or the Privacy Policy, you and WBI-Cy shall each retain in confidence all non-public information and know-how disclosed pursuant to these Terms of Service, or the Services, whether oral or in writing or electronically, that is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, should in good faith be treated as proprietary and/or confidential (“Confidential Information”), using at least the same standard of care used by it to protect its own confidential information of like character (but in no event less than a reasonable standard of care). For the avoidance of doubt, the non-public aspects of the Cy Platform and Services, and the Cy Content, will be considered to be WBI-Cy’s Confidential Information. Excluded Data is not part of your Confidential Information.
B. Exclusions
The obligations under the prior paragraph shall not apply to Confidential Information that the receiving party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the receiving party; (ii) was rightfully in the receiving party’s possession prior to disclosure by the disclosing party; (iii) subsequent to disclosure by the disclosing party, is rightfully obtained by the receiving party from a person in lawful possession of such Confidential Information; (iv) is independently developed by the receiving party without use of or reference to Confidential Information of the disclosing party; or (v) is required to be disclosed by law (but only to the extent of such required disclosure).
11. ASSIGNMENT
These Terms of Service 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 these Terms of Service, or any of our rights and obligations hereunder, without your consent. These Terms of Service are binding upon you and your successors and permitted assigns.
12. GOVERNING LAW; DISPUTE RESOLUTION PROCEDURES
These Terms of Service shall be governed by and construed in accordance with the laws of the State of New Jersey. Any dispute relating in any way to your visit to, or use of, the Cy Platform or to the Services you use or purchase through the Cy Platform (including a membership), or to your relationship to WBI-Cy shall be submitted to confidential arbitration in Red Bank, New Jersey; provided, however, that to the extent that you have in any manner violated or threatened to violate our Intellectual Property Rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of New Jersey. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of New Jersey. Arbitration under these Terms of Service will be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association. The arbitrator’s award will be final and binding and may be entered into as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms of Service will be joined to an arbitration involving any other party subject to this Terms of Service, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of this Cy Platform or these Terms of Service must be filed within one (1) year after such claim of action arose or be forever banned.
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ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT. ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. ARBITRATORS CAN AWARD THE SAME DAMAGES AND RELIEF THAT A COURT CAN AWARD. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY.
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YOU ACKNOWLEDGE AND AGREE THAT ANY CLAIMS BROUGHT BY YOU AGAINST WBI-CY MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING.
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Further, unless both you and WBI-Cy agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive 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.
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13. SEVERABILITY
If any part of these Terms of Service is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.
14. ENTIRE AGREEMENT
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These Terms of Service constitute the entire agreement and understanding between the parties relating to the subject matter herein. We may, at our sole discretion and without notice, revise these terms at any time by updating this posting.
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15. NOTICES
Except as explicitly stated otherwise, any notice required or permitted by this Terms of Service must be in writing. Any notice to WBI-Cy must be sent to help@wbici.com. Any notice to you may be given: (1) to the email address you provide to WBI-Cy during registration or when your email address changes, in which case notice will be deemed sufficient twenty-four (24) hours after the email is sent unless the sending party is notified that the email address is invalid; or (2) by certified mail, postage prepaid, return receipt requested, to the last mailing address you provided to WBI-Cy, in which case notice will be deemed sufficient three (3) days after the mailing date.
16. MISCELLANEOUS
No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. 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 of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
XX. CONTACT US
Any questions regarding these Terms of Service should be directed to the following mailing address help@wbicy.com:
One River Center
331 Newman Springs Rd, Suite 143
Red Bank, NJ 07701
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