Platform Agreement
PLEASE READ THESE RUNSYBIL PLATFORM AGREEMENT TERMS (THESE “PLATFORM AGREEMENT TERMS”) CAREFULLY BEFORE ENTERING INTO ANY SERVICE ORDER AND USING THE SERVICES OFFERED BY RUNSYBIL CORP. (“RUNSYBIL”).
BY EXECUTING A SERVICE ORDER THAT REFERENCES THESE PLATFORM AGREEMENT TERMS, THE ENTITY IDENTIFIED AS THE CLIENT IN SUCH SERVICE ORDER (“CLIENT”) AGREES TO BE BOUND BY THESE PLATFORM AGREEMENT TERMS. THESE PLATFORM AGREEMENT TERMS GOVERN CLIENT’S ACCESS TO AND USE OF THE SERVICES. THESE PLATFORM AGREEMENT TERMS, TOGETHER WITH THE APPLICABLE SERVICE ORDER, CONSTITUTE THE AGREEMENT BETWEEN THE PARTIES (THE “AGREEMENT”). IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THE AGREEMENT.
IMPORTANT NOTICE: PLEASE READ THIS CAREFULLY. THESE PLATFORM AGREEMENT TERMS CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 15.
Capitalized terms used but not defined in-line have the meanings given to them in Section 17 of these Platform Agreement Terms or elsewhere in the Agreement. RunSybil and Client are each sometimes referred to in the Agreement as a “Party,” and collectively, as the “Parties.”
1. SERVICES.
RunSybil shall provide the services specified in the Service Order (the “Services”) in accordance with the terms of the Agreement, including these Platform Agreement Terms. Client expressly agrees that RunSybil’s obligation to commence performance of the Services under any Service Order is conditioned upon Client’s acceptance of these Platform Agreement Terms, as indicated by execution of the applicable Service Order. These Platform Agreement Terms are incorporated into each Service Order. RunSybil may use Affiliates, suppliers, or subcontractors in connection with performing Services but shall remain responsible for the performance of the foregoing. At its cost, Client shall obtain and maintain any equipment and ancillary services needed to access or use the Services, including hardware, servers, software, and operating systems. Client shall reasonably cooperate with RunSybil in connection with the Services, including by (a) providing accurate, current, and complete registration information to RunSybil at all times during the Term, (b) appointing a primary point of contact for RunSybil who has authority to act on Client’s behalf in connection with the Agreement, and (c) providing Client Materials as RunSybil deems reasonably necessary to timely perform Services.
2. RESTRICTIONS.
Except as expressly authorized in writing by RunSybil, Client shall not, and shall not permit any other person to: (a) modify, copy, display, perform, create derivative works from, or distribute RunSybil Technology; (b) resell, rent, market, license or sublicense, distribute, or grant to a third party any right to access or use RunSybil Technology; (c) seek to access or use RunSybil Technology without authorization, including other than through an interface provided by RunSybil; (d) attempt to monitor, test, probe, or scan RunSybil Technology, including to ascertain Vulnerabilities or breach security or authentication measures; (e) access or use RunSybil Technology in violation of any law, regulation, rule, order, treaty, or ordinance; (f) distribute, store, or transmit via RunSybil Technology any inappropriate, infringing, or unlawful data or content; (g) distribute, store, or transmit via RunSybil Technology any virus, Trojan horse, worm, or other content that may be harmful to RunSybil, the Services, or other customers or users; (h) interfere with any part of RunSybil Technology; (i) interfere with any third party’s access or use of RunSybil Technology; (j) decompile, disassemble, translate, or otherwise reverse engineer or attempt to derive the source code or models underlying the technologies for the Services or RunSybil Technology or any portion thereof; (k) take any action that may cause an unreasonable or disproportionately excessive load on RunSybil’s systems; (l) frame any portion of the Services; or (m) tamper with any Intellectual Property Right attribution or other proprietary notice in or on RunSybil Technology.
3. ACCOUNT.
Client shall establish an organizational account and designate at least one account administrator responsible for managing Client's account, including creating and disabling sub-accounts for Authorized Users and assigning access permissions. Client shall ensure that each Authorized User’s login credentials are unique to that individual and are not shared among multiple individuals. Client is responsible for maintaining the confidentiality and security of all account credentials. Client shall promptly notify RunSybil of any known or suspected unauthorized access to or use of Client's account or any Authorized User's credentials and shall promptly disable access for any individual who is no longer authorized to access RunSybil Technology. Client is responsible for all activity occurring under its account and all sub-accounts, whether or not authorized by Client. All acts and omissions of Authorized Users shall be deemed acts and omissions of Client for purposes of the Agreement.
4. SUBSCRIPTIONS.
Each subscription, as detailed in the applicable Service Order, entitles Client to the bundle of Services, tests, and features described in the Service Order for the applicable Subscription Term. Unless otherwise specified in the Service Order, each subscription has an initial term of 12 months commencing on the date specified in the Service Order (the “Initial Subscription Term”). Each subscription shall automatically renew for successive 12-month periods (each a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”) unless either Party provides written notice of non-renewal at least 30 days prior to the end of the Initial Subscription Term or then-current Renewal Subscription Term. RunSybil may adjust the fees for any Renewal Subscription Term upon at least 30 days’ prior written notice to Client before the commencement of such Renewal Subscription Term.
Each subscription includes specific usage entitlements (e.g., number of tests) as set forth in the applicable Service Order. Use of the Services in excess of the included entitlements shall be subject to the fees specified in the Service Order or, if not specified, RunSybil's then-current standard pricing. Unused entitlements do not carry over to any subsequent Subscription Term unless the Service Order expressly provides otherwise. Client may upgrade its subscription during the Subscription Term, subject to payment of any incremental fees.
5. GRANT OF RIGHTS, INTELLECTUAL PROPERTY.
RunSybil grants to Client a non-exclusive, non-transferable, non-sublicensable right to access and use the Services during the Subscription Term only for the purposes set out in the Service Order. Subject to the foregoing express limited license, RunSybil retains all rights, title, and interest in and to the Services and RunSybil Technology and does not grant any other rights or licenses, including any implied licenses, to Client. RunSybil hereby assigns to Client all rights in and to the Client-specific reports delivered to or downloaded by Client, other than preexisting RunSybil Technology therein or RunSybil logos thereon, that are provided in performance of the Services.
Client hereby grants to RunSybil a non-exclusive, non-transferable (except as permitted hereunder), non-sublicensable (other than to contractors providing services to RunSybil or its Affiliates), fully paid-up, and royalty-free license to use and process Client Materials to: (a) perform, support, and improve RunSybil’s products and services; (b) maintain quality control and compliance records; and (c) make or support regulatory filings or responses relating to such Services. Client hereby assigns all Intellectual Property Rights in Feedback to RunSybil.
6. CLIENT MATERIALS AND DATA PROTECTION.
By providing the Services, RunSybil, its Affiliates, and agents shall come into possession of certain Client Materials and Client data. Without limiting the license granted to RunSybil in Section 5, any processing of such data occurs at Client’s direction and discretion. Client Materials may contain personally identifiable information of Client’s employees, contractors, vendors, customers, representatives, or agents, as if Client had transmitted the Client Materials to RunSybil itself. Client hereby represents and warrants that it has the authority to consent to RunSybil’s use of, and access to, the Client Materials and any Client data provided to RunSybil, including any informed consent required by data subjects within the Client Materials.
For the purposes of EU privacy laws, Client is the data controller and RunSybil shall, at all times under the Agreement, be the data processor. Client hereby represents and warrants that it understands the implications of such consents and that it has the authority to provide such consent. Client warrants and undertakes that it has complied with, and shall at all times comply with, all applicable data protection laws and regulations in respect of any data (including personal data) that it provides to RunSybil and that it allows RunSybil to access or use in the provision of the Services.
RunSybil has implemented policies, procedures, and technical, physical, and administrative safeguards designed to ensure the security of Confidential Information in its possession or control and protect against any reasonably foreseeable threats or hazards to the security of such Confidential Information.
7. CLIENT ACKNOWLEDGMENTS; CONSENTS AND AUTHORIZATIONS.
Without limiting the other disclaimers in the Agreement, Client acknowledges and agrees that: (a) some Client Materials or other data may be changed temporarily as a result of the Services; (b) various activities under the Services may trigger alarms by intrusion detection systems; (c) excessive amounts of log messages may be generated by the Services, resulting in excessive log file disk space consumption or may lead to a response from relevant cybersecurity teams; (d) the performance and throughput of Client’s system(s), as well as the performance and throughput of associated routers and firewalls, may be temporarily degraded by the Services; (e) Client computer system(s) may hang or crash, resulting in temporary system unavailability as a result of the Services; (f) Client agrees to accept any and all risks associated with the Services; (g) Client accepts all responsibility for the consequences of a system failure caused directly or indirectly by the Services; (h) if Client requests a destructive testing option and an appropriate Vulnerability exists and is accessible from the Internet, then the system with the Vulnerability shall be disrupted by the testing and could require manual intervention by Client to recover the system; (i) in certain instances, systems owned or operated by a third party (“Third-Party Systems”) shall be the subject of or otherwise related to testing hereunder, and Client shall obtain and provide to RunSybil a signed letter from the owner of each Third-Party System authorizing RunSybil to provide Services that may involve or otherwise impact the Third-Party System and indicating the owner’s acceptance of the terms of such authorization letter; and (j) Client shall facilitate the communication and exchange of information between the Third-Party System owner and RunSybil as requested by RunSybil.
Client understands and agrees that if it does not inform employees, affiliates, contractors, subcontractors, and other entities with access to Client’s facilities that RunSybil shall be conducting the Services, such persons may spend time and money on behalf of Client in detecting, blocking, investigating, or responding to activities of RunSybil. Client agrees that RunSybil shall not be liable for any costs or claims incurred or brought as a result of Client’s non-disclosure to such entities, and Client further agrees to reimburse RunSybil for any damage to its equipment or such entities arising from Client’s non-disclosure. Client is solely responsible for communicating any risks, exposures, and Vulnerabilities identified on Third-Party Systems by RunSybil’s remote testing to the Third-Party System owner and for ensuring that the Third-Party System owner takes all actions required by RunSybil.
Without limiting any of its rights under the laws of any other jurisdiction, Client hereby agrees that the Services provided under the Agreement shall be deemed authorized and properly consented to by all applicable parties under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq., the Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq., and all other applicable international, U.S. federal, and state laws, rules, and regulations that relate to, regulate, or impact the subject matter of the Agreement, each as may be amended from time to time. Client hereby agrees that RunSybil shall be deemed the agent of Client for purposes of 18 U.S.C. § 2511(2)(a)(i), and Client represents that RunSybil is retained to provide the Services for the protection of Client’s rights and property. Client shall obtain any further consent required for the Services and shall have the duty to disclose and notify, as required, Client’s employees, contractors, vendors, customers, representatives, or agents about the Services.
CLIENT HEREBY AUTHORIZES RUNSYBIL (INCLUDING ITS EMPLOYEES, AGENTS, AND CONTRACTORS) TO CONDUCT VULNERABILITY TESTING (INCLUDING ONSITE AND REMOTE) ON CLIENT SYSTEMS AS PART OF THE SERVICES. CLIENT HEREBY GRANTS RUNSYBIL PERMISSION TO PERFORM THE ACTIVITIES SET FORTH IN THE SERVICE ORDER DURING THE TESTING AND AS PART OF THE SERVICES.
Certain laws prohibit any unauthorized attempt to penetrate computer systems. Client acknowledges that the Services constitute authorized access to Client Systems, networks, facilities, and physical work locations and spaces, and that it has obtained all necessary consents to allow RunSybil to provide such Services and perform such activities, including the use of credentials provided by Client. It is Client’s responsibility to identify and interpret any applicable laws and regulations, or otherwise applicable contractual agreements or relevant policies relating to the Services, to ensure that the performance of the Services is compliant.
8. CHARGES; PAYMENT.
Client shall pay RunSybil the fees and charges as set forth in the applicable Service Order. Client shall be responsible for any and all applicable taxes and like charges or surcharges (including excise, use, sales, value-added, and other fees, surcharges, and levies) payable by Client under the Agreement, other than taxes based on RunSybil’s net income. Unless otherwise set forth in the Service Order, RunSybil may invoice Client for fees upon execution of the applicable Service Order. Invoices may be provided electronically. Payment of fees and charges is due within 30 days of invoice receipt. All fees and charges shall be payable in United States dollars and are nonrefundable, unless otherwise mutually agreed in writing.
If Client fails to pay any undisputed fees within 10 days after the applicable due date, RunSybil may suspend performance of all or any portion of the Services until such fees are paid in full, without liability for any resulting delay or disruption. Such suspension shall not relieve Client of its payment obligations or extend any Service Order timeline.
9. CONFIDENTIALITY.
As used herein, “Confidential Information” means non-public, proprietary, or trade secret information, in any format, that a party, its Affiliates, or agents (each, a “Disclosing Party”) provides to the other party, its Affiliates, or agents (each, a “Receiving Party”) and that the Disclosing Party designated as confidential or that would reasonably be understood to be confidential and that (a) relates to the Disclosing Party, its services, customers, business partners, products, developments, know-how, or personnel and (b) is received by the Receiving Party from the Disclosing Party during the Term. For clarity, any finding that a potential or actual Vulnerability has been identified on Client Systems shall be Client’s Confidential Information. During the Term and thereafter, the Receiving Party shall not use or disclose the Disclosing Party’s Confidential Information except as permitted in the Agreement. The Disclosing Party’s Confidential Information shall remain the sole property of the Disclosing Party. The Receiving Party shall protect the Disclosing Party’s Confidential Information using at least the same procedures as it uses to protect its own Confidential Information, but no less than reasonable procedures.
The Receiving Party may disclose the Disclosing Party’s Confidential Information solely to its agents, employees, consultants, and contractors who have a need to know in connection with the Agreement and who have executed a similarly stringent confidentiality agreement. Confidential Information securely stored using third-party applications shall not constitute a disclosure of such Confidential Information by RunSybil. The Receiving Party also may disclose the Disclosing Party’s Confidential Information as required by applicable law, regulation, subpoena, or other order of a court of competent jurisdiction (collectively, a “Legal Requirement”) or to establish rights or obligations under the Agreement in any proceeding; provided that (i) reasonable prior notice, unless legally prohibited, is provided to the Disclosing Party to permit it the opportunity to contest such disclosure, (ii) the Receiving Party cooperates with the Disclosing Party to comply with any applicable protective order, and (iii) the Receiving Party discloses only to the extent necessary to comply with the Legal Requirement or to establish such rights or obligations. These confidentiality obligations do not apply to Confidential Information that (A) was in the Receiving Party's possession before receipt from the Disclosing Party, (B) was received in good faith from a third party not subject to a confidentiality obligation to the Disclosing Party, (C) is or becomes publicly known through no breach of a confidentiality obligation by the Receiving Party, (D) was developed by the Receiving Party without access to the Confidential Information received from the Disclosing Party, or (E) is authorized in writing by the Disclosing Party to be released or is designated in writing by the Disclosing Party as no longer confidential.
The Receiving Party acknowledges that unauthorized use or disclosure of the Disclosing Party’s Confidential Information may result in irreparable injury to the Disclosing Party, for which monetary damages are inadequate. If the Receiving Party violates or threatens to violate the terms of this Section, the Disclosing Party may seek injunctive relief without posting bond, in addition to any other available remedies.
10. MUTUAL REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants that (a) it has the full right, power, and authority to enter into and perform the Agreement and grant the rights granted in the Agreement; (b) it has, and shall comply with, all required authorizations, licenses, or permits in order to enter into and perform the obligations under the Agreement; (c) it is not bound by any obligation that would prevent it from entering into or performing the obligations under the Agreement; (d) the execution, delivery, and performance of the Agreement has been duly authorized by all necessary corporate action; and (e) it shall comply with all applicable laws, rules, and regulations in its performance hereunder.
11. TERM AND TERMINATION.
The Agreement shall commence upon the date of the Service Order, and, unless earlier terminated, in accordance with the terms of the Agreement, continue through the expiration of the Subscription Term under the applicable Service Order.
Each Party may terminate the Agreement for cause, upon notice to the other Party, if: (a) a receiver or administrator is appointed for the other Party or its property, or the other Party makes a general assignment for the benefit of its creditors, is involved in proceedings under any bankruptcy, insolvency, or debtor’s relief law that are not dismissed within 60 days, is liquidated or dissolved, or ceases doing business; or (b) the other Party materially breaches the Agreement and the breach continues uncured for 30 days after receipt of written notice of the breach from the non-breaching Party.
Upon expiration or termination of the Agreement for any reason: (i) all Client rights to access or use the Services, and RunSybil’s obligations to provide the Services and any other RunSybil Technology, shall terminate, and RunSybil may, without liability to Client or any third party, immediately deactivate or delete Client’s username, password, and account, and all associated materials, without any obligation to provide any further access to such materials; (ii) within 30 days, Client shall pay to RunSybil all undisputed accrued but unpaid fees and charges; (iii) all liabilities accrued before the expiration or termination date shall survive; and (iv) each Party shall, as directed by the other Party, return or destroy, and certify in writing to such requesting Party the destruction of, all copies of such requesting Party's Confidential Information. Notwithstanding anything to the contrary in the Agreement, RunSybil may retain Client’s Confidential Information solely to the extent legally required or as reasonably necessary to exercise its rights under the licenses granted under the Agreement. Confidential Information incidentally captured by system-backup media need not be returned or destroyed, provided that the backup media are maintained in confidence.
12. DISCLAIMER.
RUNSYBIL DOES NOT WARRANT THAT THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THAT ANY OR ALL VULNERABILITIES SHALL BE DETECTED. THE SERVICES ARE PROVIDED “AS IS” AND WITH ALL FAULTS, AND, EXCEPT AS EXPRESSLY SET FORTH HEREIN, RUNSYBIL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT TO CLIENT’S BREACH OF SECTION 2 (RESTRICTIONS), CLIENT’S OBLIGATIONS SET FORTH IN SECTION 7 (CLIENT ACKNOWLEDGMENTS; CONSENTS AND AUTHORIZATIONS), OR A PARTY’S BREACH OF SECTION 9 (CONFIDENTIALITY) (“EXCLUDED CLAIMS”), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST BUSINESS, REVENUES, CLIENTS, CONTRACTS, PROFITS, OR GOODWILL, LOST OR DAMAGED CLIENT MATERIALS OR CLIENT DATA, BUSINESS INTERRUPTION, OR REPLACEMENT SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT THE REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. WITHOUT LIMITING CLIENT’S OBLIGATION TO PAY FEES AND CHARGES DUE UNDER EACH SERVICE ORDER, AND EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, EACH PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH THE AGREEMENT IS LIMITED TO THE AMOUNT OF FEES OR CHARGES PAID BY CLIENT TO RUNSYBIL DURING THE 12-MONTH PERIOD BEFORE THE DATE ON WHICH ANY CLAIM AROSE UNDER THE APPLICABLE SERVICE ORDER (“GENERAL LIABILITY CAP”). NOTWITHSTANDING THE FOREGOING, RUNSYBIL’S MAXIMUM AGGREGATE LIABILITY WITH RESPECT TO ANY BREACH OF SECTION 9 (CONFIDENTIALITY) SHALL NOT EXCEED TWO TIMES THE GENERAL LIABILITY CAP.
14. INDEMNIFICATION.
Client shall, at its cost, defend and indemnify RunSybil and its officers, directors, employees, agents and permitted successors and assigns (each a “RunSybil Indemnitee”) through final judgment or settlement, from and against any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (“Claim”) brought against a RunSybil Indemnitee arising out of or based upon (a) use of Client Materials or performance of the Services as authorized by Client under the Agreement, (b) unauthorized use of or access to the Services due to Client’s breach of the Agreement, (c) Client’s breach of its representations and warranties under the Agreement, or (d) Client’s negligence or willful misconduct.
RunSybil shall, at its cost, defend and indemnify Client and its officers, directors, employees, contractors, agents, and permitted successors and assigns (each, a “Client Indemnitee”) through final judgment or settlement, from and against any Claim brought against a Client Indemnitee arising out of or based upon alleged or actual infringement or misappropriation of the Intellectual Property Rights of a third party by RunSybil Technology as deployed in the Services. RunSybil shall have no obligation under this Section to the extent a Claim arises from (i) modifications to RunSybil Technology made by or at the direction of Client, (ii) Client’s combination of RunSybil Technology with materials not provided by RunSybil, (iii) Client’s use of the Services after RunSybil has notified Client of the alleged infringement and provided an alternative, or (iv) Client Materials.
The RunSybil Indemnitee or Client Indemnitee (as applicable) shall (A) promptly provide notice to the respective Party of any indemnifiable Claim; provided that any delay in providing notice shall not relieve the indemnifying Party of its obligations hereunder, except to the extent that the indemnifying Party is materially prejudiced by the delay; (B) permit the indemnifying Party to control the defense of such Claim; and (C) provide reasonable assistance. The indemnifying Party must not consent to entry of any judgment or settlement that imposes liability or obligations on an indemnitee or diminishes the indemnitee’s rights without obtaining the affected indemnitee’s express prior consent, such consent not to be unreasonably withheld or delayed.
15. CHOICE OF LAW, ARBITRATION.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS. The Agreement shall be construed and enforced in accordance with the laws of the State of California, without regard to conflict of laws principles. Any dispute, controversy, or claim arising out of or relating to the Agreement or the performance by either Party of its obligations under the Agreement (other than bona fide third-party actions or proceedings filed or instituted in an action or proceeding by a third party against a Party to the Agreement), whether before or after termination of the Agreement, shall be finally resolved by binding arbitration. Whenever a Party elects to institute arbitration proceedings, it shall give written notice to that effect to the other Party. Any such arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association by a single arbitrator appointed in accordance with such rules. Any such arbitration shall be held in San Francisco, California. The arbitrator shall have the authority to grant specific performance and to allocate between the Parties the costs of arbitration in such equitable manner as the arbitrator determines. Judgment upon the award so rendered may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based upon such dispute, claim, or controversy would be barred by the applicable statute of limitations. Notwithstanding the foregoing, either Party shall have the right, without waiving any right or remedy available to such Party under the Agreement or otherwise, to seek and obtain from any court of competent jurisdiction any interim or provisional relief that is necessary or desirable to protect the rights or property of such Party, pending the selection of the arbitrator hereunder or pending the arbitrator's determination of any dispute, controversy, or claim hereunder.
16. MISCELLANEOUS.
The Agreement constitutes the Parties’ entire agreement with respect to its subject matter and supersedes all other prior or contemporaneous representations, understandings, or agreements with respect to the Services to be provided under the applicable Service Order; and there are no other representations, understandings, or agreements between the Parties relative to such subject matter. Except as expressly stated herein, no amendment to the Agreement is valid unless in writing and signed by both Parties. If there is a conflict between these Platform Agreement Terms and any Service Order, the conflict shall be resolved in favor of these Platform Agreement Terms, except (a) any additional terms governing authorization and consent obligations on Client in such Service Order shall control, and (b) to the extent that such Service Order expressly states that it supersedes specific language in the Agreement. Descriptive headings are for convenience only and shall not affect the construction of the Agreement. “Include,” “including," or “e.g.” means “include, without limitation.” “Day” means calendar day unless otherwise indicated. Terms with well-known technical or industry meanings are construed as such. Each Party and its counsel have fully reviewed and contributed to the Agreement. Any rule of construction that ambiguities are resolved against the drafter shall not apply in interpreting the Agreement.
All notices, requests, consents, and other communications hereunder shall be in writing, in English, and deemed conclusively made (i) if personally delivered, upon delivery, (ii) if delivered by overnight courier or private mail service, upon receipt, (iii) if delivered by certified mail return receipt requested, five days from mail deposit, or (iv) if delivered by email, upon delivery confirmation. If to RunSybil: Legal Team, legalnotices@runsybil.com. If to Client, to the name and email set forth in the applicable Service Order. Either Party may change its contact information upon notice to the other Party. If the receiving Party refuses receipt or fails to notify the other Party of receipt of notice, notice shall be deemed conclusively made seven days after delivery was reasonably initiated.
RunSybil may include Client's name and logo in its customer lists and on its website to identify Client as a customer of RunSybil. Client may opt out of such use by providing written notice to RunSybil, and RunSybil shall remove Client's name and logo within 30 days of receiving such notice.
Neither Party shall be liable by reason of any failure or delay in performing its obligations (other than payment obligations) hereunder to the extent due to any act of God, war, military action, governmental restriction or action, civil disorder or unrest, terrorism, explosion, accident, fire, flood or other natural disaster, vandalism, sabotage, unavailability of equipment or software from vendors, labor condition, shortage, embargo, malicious code, online attacks, or other cause beyond such Party's reasonable control (each, a “Force Majeure Event”). Client’s obligation to pay for the Services provided before a Force Majeure Event shall not be delayed during, and shall not be excused by, a Force Majeure Event. A Party whose performance is affected by a Force Majeure Event shall promptly provide notice with relevant details to the other Party, and the notifying Party's obligations shall be suspended to the extent caused by such Force Majeure Event for as long as it continues; the time to perform the affected obligation shall be extended by the delay caused by the Force Majeure Event. If the affected Party is prevented by the Force Majeure Event from performing its obligations with regard to a Service for 30 days, it may in its sole discretion immediately terminate the affected Service upon notice to the other Party. Upon such termination, RunSybil is entitled to payment within 30 days of all unpaid fees or charges incurred through the termination date. The Parties otherwise shall bear their own costs, and RunSybil shall be under no further liability to perform the affected Services.
No failure or delay by a Party to exercise or enforce any right hereunder shall waive any such right. The Agreement may be amended only by a writing signed by an authorized representative of each Party. If any provision hereunder is held by a court of competent jurisdiction to be unenforceable or contrary to law, such holding shall not render the Agreement unenforceable or contrary to law as a whole, and such provision shall be changed and interpreted to best accomplish the objectives of the provision subject to applicable law. Unless otherwise expressly stated, to the extent permitted by applicable law, the Parties’ rights and remedies provided for hereunder are cumulative and in addition to any other rights and remedies at law or in equity.
The Parties are independent contractors. The Agreement does not establish a partnership, joint venture, association, or agency relationship or other cooperative entity between the Parties. Neither Party may assign the Agreement without the other Party's express prior consent, except that either Party may freely assign its rights and obligations under the Agreement, in whole or in part, to a parent or Affiliate or in connection with a Change of Control. The Agreement shall be binding upon and inure to the benefit of all permitted successors and assigns. Any assignment in contravention of this Section is null and void. There are no third-party beneficiaries to the Agreement.
Section 2 (Restrictions), the license granted by Client in Section 5 (Grant of Rights; Intellectual Property), Section 9 (Confidentiality), Section 12 (Disclaimer), Section 13 (Limitation of Liability), Section 14 (Indemnification), Section 15 (Choice of Law; Arbitration), Section 16 (Miscellaneous), and Section 17 (Definitions) shall survive termination or expiration of the Agreement.
Client's execution of a Service Order that references these Platform Agreement Terms shall constitute Client's acceptance of and agreement to be bound by these Platform Agreement Terms. An electronic signature on a Service Order shall have the same legal force and effect as an original signature.
17. DEFINITIONS.
In addition to terms defined elsewhere in the Agreement, the following definitions shall apply to the Agreement:
“Affiliate” means an entity Controlled by, Controlling, or under common Control with a Party. An entity has “Control” of another entity when it owns more than 50% of the equity or voting interests or has primary operational or management responsibility.
“Authorized User” means any individual who is authorized by Client to access the RunSybil Platform under Client's Account.
“Change of Control” means one or more transactions whereby (a) Control of a Party is transferred, (b) all or substantially all of the Party's assets or securities are acquired, or (c) the Party is merged or consolidated with another entity; provided that such Party's equity owners immediately before the transaction(s) shall, immediately afterward, hold less than 50% voting power of the successor entity.
“Client Materials” means Client Systems, testing environments, and other digital assets, data, materials, and intellectual property provided by or on behalf of Client to RunSybil or its subcontractors, or otherwise received, viewed, or obtained by RunSybil in the course of performing the Services.
“Client Systems” means any software, technology, network, computer or technology system, or product or service of Client that Client or its representatives submits to RunSybil for Vulnerability testing pursuant to a Service Order.
“Feedback” means suggestions, recommendations, enhancement requests, data, statistics or other information provided by or on behalf of Client or any other person regarding RunSybil Technology.
“Intellectual Property Rights” means all patents, copyrights, trade secrets, trademarks and service marks, trade dress, trade names, derivative works, goodwill related thereto, and all other intellectual property or proprietary rights (whether or not registered) and similar forms of protection worldwide, and all applications for and registrations in such rights.
“RunSybil Technology” means proprietary technology owned or licensed by RunSybil, including the software and models underlying the Services, tools, data, user interface and hardware designs, artificial intelligence models and algorithms, architectures, inventions, methods, processes, materials, and documentation, as well as any derivatives, improvements, enhancements, or extensions to any of the foregoing, together with all related Intellectual Property Rights.
“Service Order” means a mutually executed service order, work order, or statement of work that sets forth the specification of certain Services that RunSybil shall perform, e.g., the Vulnerabilities to be tested, the associated fees or charges, and (where applicable) non-standard development or implementation Services, and that makes reference to and incorporates these Platform Agreement Terms.
“Vulnerability” means a weakness, susceptibility, or flaw in a Client System that could enable an attacker to access a network or system or otherwise reduce its security.