1. INTRODUCTION AND SCOPE
These Cybersyn Terms of Service (“Cybersyn TOS”) set forth the terms and conditions governing access to and use of a ‘demo’ data dashboard and associated sample data (the “Product”) offered by Cybersyn, Inc. (“Cybersyn”) to consumers (each a “Consumer” or “you”, and together with Cybersyn, the “Parties”) via a Cybersyn website. The Product is provided for testing and evaluation purposes only; it is not intended for any other internal or external business use. Your clicking “I Agree” constitutes your agreement to these Cybersyn TOS and all of the terms and conditions herein. All terms in quotation marks in the body of this Cybersyn TOS are defined terms.
2. RIGHTS AND OBLIGATIONS
2.1 LICENSE GRANT. Subject to the provisions hereof (including Section 3), Cybersyn hereby grants to Consumer a non-exclusive, non-transferable, and revocable license to access and use the Product solely for testing and evaluation purposes. Cybersyn retains all rights not expressly granted to Consumer under this Cybersyn TOS. Without limiting the generality of the foregoing, the license granted hereunder does not include the right for Consumer to share, redistribute, or create derivative works (including, without limitation, derivative data sets) using any part of the Product.
2.2 USE RESTRICTIONS. Consumer may not: (i) copy the Product, or any material subset thereof, including for or with any purposes relating to a large language model (LLM), chatbot, or other artificial intelligence (AI) system, product, or service; (ii) modify or create derivative works or improvements to the Product, or any subset thereof, or enable any third party to do so; (iii) publish, disseminate, distribute, or provide access of any kind to the Product, or any subset thereof, to any third party; (iv) sell, sublicense, loan, lease, assign, authorize others to access, use, disclose, or attempt to grant any rights to, the Product, or any subset thereof, to third parties; (v) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Product; (vi) use the Product or any subset thereof to act as a consultant to third parties, service bureau, or application service provider; (vii) use the Product to create, generate, or infer any information relating to the identity of a natural person. Consumer must not remove, delete or alter any trademarks, copyright notices, or other proprietary notices of Cybersyn or its licensors, if any.
2.3 RESERVATION OF RIGHTS. Cybersyn retains all right, title and interest in and to the Products, including all patent, copyright, trademark, trade secret, and other intellectual property rights therein. Nothing in this Cybersyn TOS will be construed or interpreted as granting to Consumer any rights of ownership or, except as expressly provided herein, any other interest, in or to the Product. Any rights not expressly granted herein shall remain solely with Cybersyn.
2.5 FEEDBACK. Cybersyn may freely use and incorporate into Cybersyn’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Consumer relating to the Product without remuneration or obligation to Consumer.
3. FEES
There is no fee associated with using the Product.
4. CYBERSYN REPRESENTATIONS AND WARRANTIES
4.1 REGARDING THE PRODUCT. With respect to its provision to Consumer of Products hereunder, Cybersyn represents and warrants that:
- the Product contains no Sensitive Personal Information;
- Cybersyn has sufficient legal rights, licenses and authority to make the Product(s) available to Consumer as contemplated by this Cybersyn TOS, without infringement of the rights (including the intellectual property rights) of any third party; and
- Cybersyn’s collection of data and related information and its provision of the Product(s) hereunder complies with all applicable laws, rules, and regulations, including laws relating to privacy, and does not violate the terms of any agreement or legal obligation to which Cybersyn is a party.
For purposes of the Cybersyn TOS, “Personal Information” means (i) any information, including opinions, relating to an identified or identifiable natural person, or that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a such a person or their household; and (ii) any similar terms defined under data protection laws, such as ‘personal data’ or ‘personally identifiable information’. “Sensitive Personal Information” means (i) Personal Information that is not publicly available and includes or reveals any of the following: Social Security number, driver’s license, state identification card, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual; account log-in, financial account, debit card or credit card number in combination with any required security or access code, password, or credentials allowing access to an account; economic position; consumer reports (as defined under the Fair Credit Reporting Act); precise geolocation; contents of mail, email, and text messages; racial or ethnic origin, political opinions, religious or philosophical beliefs, or citizenship or immigration status; trade union membership; genetic data; biometric data, such as a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry; health or medical data; health insurance information; data concerning a natural person’s sex life or sexual orientation; or Personal Information of children under 16 years of age; and (ii) any similar terms defined under data protection laws, such as ‘sensitive personal data’ or ‘sensitive personally identifiable information’.
4.2 GENERAL. Cybersyn represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (b) it has the legal right and authority to enter into and perform its obligations under the Cybersyn TOS; and (c) the execution and performance of this Cybersyn TOS will not conflict with or violate any applicable law, rules, or regulations.
5. CONSUMER REPRESENTATIONS AND WARRANTIES
5.1 GENERAL. Consumer represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (b) it has the legal right and authority to enter into and perform its obligations under the Cybersyn TOS; and (c) the execution and performance of the Cybersyn TOS will not conflict with or violate any applicable law.
5.2 CONSUMER INFORMATION PROVIDED TO CYBERSYN. Consumer agrees that Cybersyn may use the Consumer information gathered via the Cybersyn website for the purposes set forth in this Cybersyn TOS and Cybersyn’s Privacy Policy (available here), which may, if Consumer so opted in, include marketing to Consumer other Products offered by Cybersyn on the Marketplace.
6. CONFIDENTIALITY
6.1 PROTECTION OF CONFIDENTIAL INFORMATION. Each Party receiving Confidential Information (as defined below) (the “Receiving Party”) from the disclosing Party (the “Disclosing Party”) agrees that it and its employees, officers, consultants, contractors, and agents (“Representatives”) shall (i) maintain all Confidential Information in strict confidence; (ii) use all reasonable means to prevent the use, disclosure, or dissemination of Confidential Information other than as expressly permitted pursuant to the Cybersyn TOS; and (iii) use and reproduce the Confidential Information only as permitted by the Cybersyn TOS. Moreover, Receiving Party agrees to disclose the Confidential Information only to its Representatives who are bound by confidentiality obligations substantially similar to those contained herein, and who, in each case, need to know the Confidential Information in connection with the purpose of the Cybersyn TOS and shall be informed by Receiving Party of the confidential nature of the Confidential Information. Receiving Party agrees to notify Disclosing Party without unreasonable delay of any loss or unauthorized disclosure of Disclosing Party’s Confidential Information. Receiving Party agrees to be responsible for any breach of the Cybersyn TOS by its Representatives. For purposes of the Cybersyn TOS, “Confidential Information” means any confidential and proprietary information belonging to either Party or either Party’s affiliates, subsidiaries, or parent companies that is disclosed by one Party to the other Party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plans, and equipment). Confidential Information includes all copies, archives, compilations, aggregations, and excerpts thereof, in all formats, and includes the terms, conditions and existence of this Cybersyn TOS. With respect to Cybersyn, Confidential Information includes, by way of example, but without limitation, information relating to: research activities, research or data reports, data collection, aggregation, analysis or computer code, including but not limited to any communication with any data or computer code within a Cybersyn-controlled data infrastructure; any development tools and processes, product plans or designs, algorithms, any titles, themes, objects, concepts, artwork, designs, aggregated data, de-identified data, methods of operation, moral rights, and any related documentation or any intellectual property of any kind or nature; organizational, financial, accounting, operational, systems or other information relating to Cybersyn and its directors, officers, members, partners, shareholders, affiliates, employees, agents, representatives or service providers.
6.2 EXCEPTIONS. Receiving Party’s obligations shall not apply to Confidential Information that (a) was in the public domain prior to the time of its disclosure under the Cybersyn TOS; (b) entered the public domain after the time of its disclosure under the Cybersyn TOS through no fault of Receiving Party or its Representatives; (c) becomes available to Receiving Party on a non-confidential basis from a person or entity, other than Disclosing Party, who is not bound by confidentiality obligations in respect of such Confidential Information; or (d) Receiving Party can demonstrate was is in its possession as of the effective date of the Cybersyn TOS or is independently developed by Receiving Party or its Representatives without violation of any obligation under the Cybersyn TOS.
6.3 COMPULSORY DISCLOSURE. Nothing in the Cybersyn TOS shall prohibit Receiving Party from disclosing Confidential Information pursuant to applicable law, regulation or legal process, or if requested to be disclosed by a government agency or self-regulatory organization, provided that Receiving Party, to the extent legally permitted and reasonably practicable under the circumstances (i) promptly notifies Disclosing Party of the existence, terms and circumstances surrounding such a request, (ii) consults with Disclosing Party on the advisability of taking steps to resist or narrow such request, (iii) if disclosure of such Confidential Information is legally required, furnishes only such portion of the Confidential Information as Receiving Party is advised by legal counsel is legally required to be disclosed, and (iv) cooperates with Disclosing Party, at the expense of Disclosing Party, in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to any portion of the Confidential Information that is required to be disclosed. Notwithstanding anything to the contrary contained herein, Cybersyn may disclose Confidential Information, without notice, to any governmental agency or regulatory authority.
6.4 RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION; RETENTION. Upon the termination of the Cybersyn TOS, or at any time upon request of the Disclosing Party, the Receiving Party will promptly return all items and materials, including any copies, in its possession, custody, or control which contain any Confidential Information of the Disclosing Party. All notes or other work product containing such Confidential Information will be destroyed, and such destruction will be certified in writing to the Disclosing Party by an authorized representative of the Receiving Party who supervised such destruction. The Receiving Party’s obligations concerning the Disclosing Party’s Confidential Information as set forth herein will survive the termination of the Cybersyn TOS. Notwithstanding any termination of this Cybersyn TOS and anything in the Cybersyn TOS to the contrary, each Party may retain a copy of the Product and/or Confidential Information (i) as expressly permitted by the Cybersyn TOS, and (ii) for as long as it is required in order to comply with its legal, regulatory and record-keeping obligations.
7. INDEMNIFICATION
7.1 INDEMNIFICATION BY CYBERSYN. Cybersyn agrees to indemnify, defend and hold harmless Consumer and its affiliates, officers, directors, employees, shareholders, and/or agents from any and all claims, investigations, and lawsuits (“Claims”) and any resulting or associated expenses, losses, fines, fees, or damages (including attorneys fees and costs) (“Damages”) in any and all jurisdictions arising from or relating to any allegation that the Product is in violation of the copyright, patent, trademark, trade secret, or other intellectual property rights of a third party. Cybersyn indemnification obligations hereunder shall not extend to any Claims arising from or relating to (a) any modifications, alterations or changes to the Product by Consumer which causes the Product to infringe the intellectual property rights of a third party; (b) Consumer’s misuse or unauthorized use of the Product; or (c) any combination of the Product with any Consumer or third party content or materials which causes the Product to infringe the intellectual property rights of a third party.
7.2 INDEMNIFICATION BY CONSUMER. Consumer agrees to indemnify, defend, and hold harmless Cybersyn and its affiliates, officers, directors, employees, shareholders, and/or agents from any and all Claims and any resulting or associated Damages in any and all jurisdictions arising from or relating to (i) its use of the Product, (ii) its misuse of the Product in violation of the Cybersyn TOS, or (iii) any violation of its representations and warranties under the Cybersyn TOS.
7.3 INDEMNIFICATION PROCEDURES. In the event of a potential indemnity obligation under this Section 7, each Party (the “Indemnified Party”) will: (i) promptly notify the other Party (the “Indemnifying Party”) in writing of the claim, (ii) allow the Indemnifying Party the right to control the investigation, defense and settlement (if applicable) of such claim at the Indemnifying Party’s sole cost and expense, and (iii) upon request of the Indemnifying Party, provide all necessary cooperation at the Indemnifying Party’s expense. Failure by the Indemnified Party to notify the Indemnifying Party of a claim under this Section 7 shall not relieve the Indemnifying Party of its obligations under this Section 7. However, the Indemnifying Party shall not be liable for any litigation expenses that the Indemnified Party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the Indemnifying Party in accordance with this Section 7. The Indemnifying Party may not settle any claim that would bind the Indemnified Party to any obligation (other than payment covered by the Indemnifying Party or ceasing to use infringing materials) or require any admission of fault by the Indemnified Party, without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed. Any Indemnification obligation under this Section 7 will not apply if the Indemnified Party settles or makes any admission with respect to a claim without the Indemnifying Party’s prior written consent.
8. WARRANTY DISCLAIMER
OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE PRODUCT IS PROVIDED “AS-IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND. CYBERSYN HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. CYBERSYN DOES NOT WARRANT: (I) THAT THE PRODUCT WILL MEET CONSUMER’S REQUIREMENTS; OR (II) THAT THE PRODUCT WILL BE ACCURATE, COMPLETE, OR UP-TO-DATE.
9. LIMITATION OF LIABILITY
9.1 EXCEPT WITH RESPECT TO (I) DAMAGES ARISING FROM A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (II) A BREACH OF SECTIONS 4 (CYBERSYN REPRESENTATIONS), 5 (CONSUMER REPRESENTATIONS), OR 6 (CONFIDENTIALITY), OR (III) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES, OR ANY LOST PROFITS ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED OR ALLEGED, REGARDLESS OF WHETHER THAT PARTY HAS BEEN ADVISED OF OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 EXCEPT WITH RESPECT TO (I) DAMAGES ARISING FROM A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (II) A BREACH OF SECTIONS 4 (CYBERSYN REPRESENTATIONS), 5 (CONSUMER REPRESENTATIONS), OR 6 (CONFIDENTIALITY), OR (III) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED OR ALLEGED.
10. TERM AND TERMINATION
10.1 TERM. This Cybersyn TOS will continue in full force and effect for so long as the Product is in use by Consumer or until such access is terminated by either Party as provided herein.
10.2 TERMINATION BY CYBERSYN. Cybersyn may terminate this Cybersyn TOS, or the Term of any Product licensed hereunder, effective immediately upon notice, for any reason. Upon such termination, Consumer shall no longer be able to access or use the Product.
10.3 SURVIVAL. In addition to any sections that explicitly state that they will survive termination of the Cybersyn TOS, sections 2.4, 6, 7, 8, 9, 10.3, and 11, together with all other provisions of this Cybersyn TOS that may reasonably be interpreted or construed as surviving expiration or termination of this Cybersyn TOS, will survive the expiration or termination of this Cybersyn TOS.
11. MISCELLANEOUS
11.1 GOVERNING LAW AND VENUE. This Cybersyn TOS will be governed by the laws of the State of Delaware and the United States without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in New York, New York. Both Parties hereby submit to the personal jurisdiction of such courts.
11.2 NOTICE. All notices must be in writing and will be deemed given (i) three days after sending if sent by first class mail (return receipt requested) to a Party’s address, (ii) on the day of delivery if sent via hand-delivery to a Party’s address, (iii) on the business day after sending if sent by documented overnight delivery service to a Party’s address, or (iv) on the business day after sending if sent by email, with Cybersyn’s email address for notices being legal@cybersyn.com. If a notice is sent via email, the notice shall be deemed to have been received by the recipient on the day of the sender’s transmission unless the sender receives a bounce back or automated response indicating that the email was not delivered successfully. A party may change its address for notices by sending a change of address notice using this notice procedure. Additionally, a copy of all notices sent by Consumer must be sent via email to legal@cybersyn.com. Cybersyn address for notices: 15 West 27th Street, Suite 900, New York, NY 10001.
11.3 RELATIONSHIP OF PARTIES; ASSIGNMENT. The Parties are independent contractors and no employment, agency, or joint venture, is created hereunder. Neither Party may assign or transfer the Cybersyn TOS or any rights or delegate any duties herein without the prior written consent of the other Party, which will not be unreasonably withheld, delayed, or conditioned. Notwithstanding the foregoing, and without gaining the other Party’s written consent, Cybersyn may assign and so delegate its obligations hereunder to any entity acquiring all or substantially all of its assets or entire business, whether by sale of assets, sale of stock, merger, or otherwise.
11.4 ENTIRE AGREEMENT. The Cybersyn TOS constitutes the final, complete, and exclusive agreement between the Parties relating to the Product and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written. Except as expressly provided herein, the terms and conditions of the Cybersyn TOS will not be changed, amended, modified or waived unless such change, amendment, modification or waiver is in writing and signed or acknowledged (whether in writing or electronically) by authorized representatives of each Party.
11.5 SEVERABILITY AND WAIVER. If any provision of the Cybersyn TOS is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. No failure or delay by either Party in exercising any right under the Cybersyn TOS will constitute a waiver of that right.
11.6 EXPORT CONTROL. Consumer agrees to comply with all export and import laws, rules, and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, Consumer represents and warrants that Consumer is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country.
11.7 EQUITABLE RELIEF. The Parties acknowledge and agree that a breach of Section 6 of these Cybersyn TOS by either Party may result in immediate, irreparable and continuing damage to the non-breaching Party for which there will be no adequate remedy at law; and agree that in the event of any such breach or violation or any threatened or intended breach or violation of the Cybersyn TOS, the non-breaching Party, its successors and assigns, will be entitled to seek temporary, preliminary and permanent injunctive relief and/or other equitable relief (without needing to post any bond or other security) in addition to such other and further relief as provided for at law and in equity.
11.8 HEADINGS. The headings contained in the Cybersyn TOS are for reference purposes only and will not affect in any way the meaning or interpretation of the Cybersyn TOS. The term “including”, and its derivatives will be interpreted to mean “including without limitation.”
11.9 THIRD-PARTY BENEFICIARY. The Parties agree that there are no third party beneficiaries to this Cybersyn TOS.
11.10 WAIVER OF JURY TRIAL. Each party knowingly, voluntarily and irrevocably waives it right to a trial by jury in any action arising out of or relating to the Cybersyn TOS.