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PLEASE READ THESE ENTERPRISE TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY SKYSYNC, INC. (“SKYSYNC”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH SKYSYNC WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA SKYSYNC’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY SKYSYNC SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
1. Grant of License and Restrictions.
Subject to the terms hereof and any applicable user/use limitations, SkySync grants Customer a personal, nonsublicensable, nonexclusive, right to access and use the licensed product(s) and/or service(s) set forth on the Order Form (collectively, the “Service” or “Services”) during the applicable Order Form Term (as defined below), subject to any limitations on the Order Form and only in accordance with SkySync’s applicable user documentation (the “Documentation”). As between the parties, SkySync retains sole ownership of all Software, Services and rights therein. Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any SkySync product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures SkySync may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service, unless otherwise agreed by the parties in writing. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. Customer (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights. Customer shall not disclose results of any Services benchmark tests or use the Services for purposes of competitive analysis.
Upon payment of any applicable fees set forth in each Order Form, SkySync agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If SkySync provides Implementation Assistance in excess of any agreed-upon hours estimate, or if SkySync otherwise provides additional services beyond those agreed in an Order Form, Customer will pay SkySync at its then-current hourly rates for consultation.
3. Support; Service Levels
SkySync will provide support and uptime for the Service in accordance with (i) the support package selected by Customer on the applicable Order Form (if any) and (ii) SkySync’s then-current standard Support and Availability Policy (the current version of which is set forth at https://www.skysync.com/supportpolicies/ (A current copy of these polices are available and may be downloaded for the webpage in .PDF format)
4. Service Updates
From time to time, SkySync may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that SkySync shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that SkySync may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that SkySync shall use commercially reasonable efforts to give Customer sixty (60) days prior notice of any major changes.
5. Ownership; Restrictions; Feedback
As between the parties, SkySync retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by SkySync for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) (“Software”) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. With respect to Software, (i) except for one copy solely for back-up purposes, Customer may possess only the number of copies of Software as has been expressly authorized by SkySync, (ii) Software may be used in machine-executable code form only, and (iii) Customer will maintain the copyright notice and any other notices that appear on the Software on any copies and any media. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer, at its option may from time to time provide suggestions, comments or other feedback to SkySync with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for SkySync notwithstanding anything else. Customer shall, and hereby does, grant to SkySync a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair SkySync’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
6. Fees; Payment
Customer shall pay SkySync fees for the Service as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Service (excluding taxes based on SkySync’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user, usage or feature limitations set forth on an Order Form, then (i) SkySync shall invoice Customer for such additional users or usage (which SkySync may do at any time and which shall be payable within thirty (30) days from date of invoice) at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at SkySync’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term or from the date the last invoice was issued for excess usage (as applicable), and (ii) if such Order Form Term renews (in accordance with Section 9, such renewal shall include the additional fees for such excess users and usage.
7. Third Party Services
Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”) such as Microsoft Azure or Amazon Web Services or other compute service providers. SkySync is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. SkySync does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
8. Customer Data
For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not SkySync, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. SkySync shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. SkySync is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to SkySync’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer acknowledges and agrees that Software errors can cause a significant loss of Customer Data, and that SkySync shall not be responsible for any loss of Customer Data. Customer acknowledges that is in the best position to select appropriate Software, and is solely responsible for such selection of Software and Services to meet Customer’s needs. Customer also acknowledges that it is in the best position to establish reasonable backups, accuracy checks, and security precautions to guard against possible malfunctions, loss of Customer Data, or unauthorized access. Therefore Customer agrees that it is solely responsible for undertaking any and all such activities necessary to establish and implement procedures for maintaining reasonable backups, accuracy checks, and security precautions to guard against possible malfunctions, loss of Customer Data, or unauthorized access. If Customer is utilizing SkySync hosted services option, Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that SkySync may [i] collect data and information regarding certain aspects of the use and performance of the Service, the servers and/or environments on which the Service is installed, as well as any problems or issues that arise in connection therewith (collectively, “Performance Information”), and [ii] internally use Performance Information for (A) internal support, diagnostic, maintenance and corrective purposes (including providing support to Customer), and (B) purposes of verifying Customer’s compliance with relevant license and usage limitations and restrictions.
9. Term; Termination
This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and (y) following the Initial Order Form Term, shall automatically renew for additional successive periods of one year each (each, a “Renewal Order Form Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, SkySync may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with SkySync’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) SkySync shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, SkySync shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) SkySync shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. Upon termination or expiration of this Agreement, (i) Customer will permanently delete any software that Customer has obtained hereunder, and (ii) all provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data or Customer’s use of the Service (in the case of Customer as Indemnitor), or (ii) the Service (in the case of SkySync as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of SkySync do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by SkySync (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by SkySync, (iv) combined with other products, processes or materials not provided by SkySync (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service is not strictly in accordance herewith.
11. Warranty Disclaimer
SkySync warrants that the Service will perform in material conformance with its official published documentation; provided that Customer’s sole remedy, and SkySync’s sole liability, in the event of a breach of the foregoing warranty shall be for SkySync to provide support to Customer in accordance with Section 3. EXCEPT FOR THE FOREGOING WARRANTY, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CUSTOMER AGREES TO BACKUP DATA AND TAKE OTHER APPROPRIATE MEASURES TO PROTECT ITS PROGRAMS AND DATA. ANY CUSTOMER DATA STORED OR ACCESSED THROUGH THE SERVICE IS DONE SO AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES.
12. Limitation of Liability
EXCEPT FOR (A) THE PARTIES’ INDEMNIFICATION OBLIGATIONS, (B) CUSTOMER’S BREACH OF CONFIDENTIALITY OR BREACH OF OBLIGATIONS IN SECTION 1 OF THIS AGREEMENT, AND (C) CUSTOMER’S GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING) OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO SKYSYNC HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
This Agreement represents the entire agreement between Customer and SkySync with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and SkySync with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the Michigan state courts located in Washtenaw County, Michigan or the United States’ federal district court for the Eastern District of Michigan. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement (provided further that Customer’s rights and obligations may not be assigned to a competitor of SkySync), and (ii) SkySync may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.
Updated June 2020