SkyKick Customer Terms & Conditions
Last updated: April 17, 2015
These SkyKick, Inc. (“SkyKick”) Terms and Conditions (the “Terms and Conditions”) apply to any and all orders placed by a SkyKick IT solutions provider (“SkyKick Partner”) on behalf of an end-customer (“Customer”) through a SkyKick order form (the “Order Form”). All offers and sales of services and products offered by SkyKick through a SkyKick Partner are subject to and expressly conditioned on these Terms and Conditions, any exhibits thereto, the Order Form and any other written or electronic agreements executed by SkyKick and Customer (or on Customer’s behalf) that reference or are executed pursuant to these Terms and Conditions (collectively, the “Agreement”). The effective date of the Agreement (the “Effective Date”) will be the date that SkyKick accepts an order for Services (defined below) as set forth in the Order Form placed by a SkyKick Partner. SkyKick and Customer are sometimes referred to herein individually as a “Party” and together as the “Parties.”
By using or receiving the Services, Customer agrees to all of the terms and conditions of these SkyKick Terms and Conditions, including the limitations on liability set forth herein and the provisions governing SkyKick’s ability to modify these Terms and Conditions set forth in Section 12.10. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN, CUSTOMER IS NOT PERMITTED TO USE THE SERVICES. Customer may authorize a SkyKick Partner to accept these Terms and Conditions and any Agreement hereunder on Customer’s behalf and Customer will be bound thereby as if these Terms and Conditions or such Agreement were directly executed by Customer.
A. SkyKick is in the business of providing certain IT products and services as more fully described in the Documentation or an applicable Order Form (the “Services”). SkyKick provides certain Services only to Customers that license software and/or services (the “Provider Offerings”) under an agreement (each, a “Provider Agreement”) with certain SkyKick authorized service providers or licensors (each, a “Provider” and collectively, the “Providers”)
B. Customer has contracted with (or desires to contract with) Provider for the purpose of receiving the Provider Offerings; and
C. Customer desires to engage SkyKick to provide the Services and to act on Customer’s behalf with respect to certain aspects of Customer’s utilization of such Provider Offerings, and SkyKick desires to provide such Services in accordance with and pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions. For the purposes of this Agreement, the following terms will have the following meanings:
1.1 “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by a Party to the other Party concerning or related to this Agreement (whether before, on or after the Effective Date), which the receiving Party knows or should know, given the facts and circumstances surrounding the disclosure of the information, is confidential information of the disclosing Party. Confidential Information includes, but is not limited to, the pricing terms under this Agreement, an Order Form or an applicable Partner Contract, the Intellectual Property Rights of SkyKick, any Customer Data, the SkyKick Platform, components of the business plans, the Services, the Software, inventions, design plans, any proprietary software or technology of SkyKick, financial plans, computer programs, know-how, customer information, strategies and other similar information. Notwithstanding the foregoing, Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the receiving Party; (b) the receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the disclosing Party; (c) the receiving Party can demonstrate was developed by the receiving Party independently and without use of or reference to the Confidential Information; or (d) the receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
1.2 “Customer Data” means any and all information, emails, data, text, audio, video, images or other content (a) provided by Customer or a User to SkyKick or a SkyKick Partner in connection with the use of the Provider Offerings, SkyKick Site or SkyKick Platform provided hereunder, or (b) provided to, hosted, stored, and/or accessed by SkyKick in connection with the provision of Services.
1.3 “Documentation” means SkyKick’s product and services descriptions, user instructions and other documentation relating to the SkyKick Platform which SkyKick may provide via the SkyKick Site or directly to Customer from time to time.
1.4 “Intellectual Property Rights” means patents, copyrights, moral rights, trademarks, trade secrets, trade dress and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
1.5 “Person” means an individual, partnership, limited liability company, association, corporation or other entity.
1.6 “Partner Contract” means an agreement between a SkyKick Partner and Customer pursuant to which such SkyKick Partner makes the SkyKick Platform available to Customer.
1.7 “SkyKick Platform” means the Services, the Software and any other technology used by SkyKick in the provision and operation of the Services or supplied by SkyKick to Customer in connection with the provision or receipt of Services, including the SkyKick Site.
1.8 “SkyKick Site” means the SkyKick website at www.skykick.com, or any successor website thereto.
1.9 “Software” means the SkyKick proprietary software provided by SkyKick to Customer in connection with the provision of the Services as further described in the Documentation for an applicable Service.
1.10 “User” means any employee, contractor, or agent of Customer who is authorized by Customer to use the Services or otherwise makes use of or receives the Services, or whose data is processed or accessed by the Services.
2. Appointment; Access to Systems; Microsoft Terms.
2.1 Appointment. Customer hereby authorizes SkyKick to perform the Services purchased from a SkyKick Partner in accordance with the terms and conditions of this Agreement and the applicable Order Form. To the extent required by Provider, Customer hereby appoints SkyKick as its partner of record and delegated administrator with respect to any applicable Provider Offering.
2.2 Access to Customer’s Systems and Information. Customer will grant to SkyKick access to Customer’s systems and online hosted accounts as required for SkyKick to provide the Services (including administrative-level access). Customer will provide SkyKick with any passwords or other keys required for Customer to grant the access set forth herein. Customer represents and warrants that it has obtained and will obtain all required consents and authorizations from Users, and has taken and will take all other steps, necessary to ensure that SkyKick’s provision of the Services complies with applicable law, including obtaining an applicable consent and authorization from Users permitting SkyKick to access and use Users’ email and system credentials. Customer will provide SkyKick and, if applicable, the SkyKick Partner with any other additional information as necessary to enable SkyKick to perform the Services, including the number of Users included in the Services, the date on which Customer requires the performance of and access to the Services, and any other instructions or requirements pertinent to Customer’s access to and use of the Services. Customer is responsible for providing complete and accurate information to SkyKick and any applicable SkyKick Partner. In order to use the Services, Customer’s computer hardware, software and internet connectivity must meet certain minimum requirements as may be specified in the Documentation provided from time to time. SkyKick bears no liability or responsibility if Customer cannot access or receive the Services due to a failure to meet such minimum requirements.
2.3 Purchases through a SkyKick Partner. Customer must purchase access to and use of the SkyKick Platform through a SkyKick Partner pursuant to a Partner Contract. SkyKick’s provision of the Services to Customer is contingent upon SkyKick’s receipt of Customer’s consent to this Agreement regardless of whether Customer has entered into any Partner Contract. SkyKick shall have no obligation to provide Services to Customer until SkyKick obtains Customer’s consent to this Agreement.
2.4 Agreement to Microsoft Terms. IF THE SERVICES ARE INTENDED FOR USE IN CONNECTION WITH PROVIDER OFFERINGS PROVIDED BY MICROSOFT CORPORATION (“MICROSOFT”), CUSTOMER UNDERSTANDS AND AGREES THAT AS PART OF THE SERVICES PROVIDED HEREUNDER, SKYKICK MAY REGISTER CUSTOMER FOR USE OF CERTAIN CLOUD COMPUTING SERVICES OFFERED BY MICROSOFT, AND THAT AS A CONDITION TO CUSTOMER’ S RECEIPT OF SERVICES HEREUNDER, AND BY AGREEING TO THE TERMS OF THIS AGREEMENT, CUSTOMER HEREBY (A) AGREES TO THE TERMS OF THE APPLICABLE MICROSOFT ONLINE SUBSCRIPTION AGREEMENT FOR MICROSOFT OFFICE 365 AND (B) AUTHORIZES SKYKICK TO REGISTER CUSTOMER FOR SUCH SERVICES ON CUSTOMER’S BEHALF (INCLUDING WITHOUT LIMITATION, IF CUSTOMER IS LOCATED IN THE EUROPEAN ECONOMIC AREA, TO NOT OPT-OUT OF MICROSOFT’S “STANDARD CONTRACTUAL CLAUSES”). CLIENT HEREBY CONSENTS TO BE BOUND BY ALL TERMS AND CONDITIONS OF SUCH SUBSCRIPTION AGREEMENT, INCLUDING ALL PAYMENT TERMS AND FEES APPLICABLE TO SUCH SUBSCRIPTION. FOR THE AVOIDANCE OF DOUBT, SUCH MICROSOFT ONLINE SUBSCRIPTION AGREEMENT FOR MICROSOFT OFFICE 365 SHALL CONSTITUTE A “PROVIDER AGREEMENT” AS DEFINED HEREUNDER. THE AUTHORIZATION SET FORTH IN THIS SECTION 2.4 SHALL BE VALID REGARDLESS OF WHETHER CUSTOMER HAS PURCHASED THE SERVICES DIRECTLY FROM SKYKICK OR THROUGH A SKYKICK PARTNER.
3. Customer Data, Data Protection, and Confidentiality.
3.1 Customer Data. As between SkyKick and Customer, Customer is the sole owner of the Customer Data; provided, however, that SkyKick may monitor, collect, use and store anonymous or aggregate information regarding use of the Services solely for SkyKick’s business purposes (including, but not limited to, enhancing the Services and creating new features and services). All Customer Data will be deemed Confidential Information of Customer subject to the terms of this Agreement. Customer hereby consents to SkyKick’s use of and access to the Customer Data to provide the Services to Customer. SkyKick may use or disclose Customer Data (a) to provide the Services (including, as applicable, to a SkyKick Partner or Provider), (b) as requested to fulfill obligations under this Agreement, or (c) to comply with any request of a governmental or regulatory body (including subpoenas or court orders). Customer acknowledges that it bears sole responsibility for adequate security, protection and backup of the Customer Data on any equipment and systems (including Provider systems) not owned or controlled by SkyKick.
Where reasonably technically feasible, SkyKick will carry out any lawful request from Customers to access and to amend, transfer, or delete all or any part of the Personal Data and will cooperate with and assist Customers in permitting individuals to exercise their rights under applicable data protection law. SkyKick will permit Customer to take reasonable steps to monitor compliance by SkyKick with its obligations under this clause, including by inspecting SkyKick’s data processing facilities, procedures and documentation.
3.2 Confidentiality. Each Party will, during the Term of this Agreement and thereafter, maintain in confidence the Confidential Information of the other Party and will not use such Confidential Information except as expressly permitted herein. Each Party will use the same degree of care in protecting such Confidential Information as such Party uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Each Party will use such Confidential Information solely for the purpose of carrying out its respective obligations under this Agreement. In addition, each Party: (a) will not reproduce such Confidential Information, in any form, except as required to accomplish its obligations under this Agreement; and (b) will only disclose such Confidential Information to its employees, consultants and third-party service providers who have a need to know such Confidential Information in order to perform their duties relating to this Agreement and have been informed of the obligation to preserve the confidentiality of such information prior to receiving such information. Confidential Information will be the property of the disclosing Party during the Term of this Agreement and afterwards in perpetuity, subject only to the exceptions expressly stated in this Agreement.
3.3 Security. SkyKick has established, and will maintain during the Term, commercially reasonable administrative, physical and technical safeguards for the protection of the Customer Data.
4. Proprietary Rights. As between SkyKick and Customer, SkyKick or its licensors own and reserve all right, other than the limited rights explicitly granted to Customer under this Agreement, title, and interest in and to the SkyKick Platform, including without limitation any SkyKick proprietary software or technology utilized in the provision or use of the Services, and all Intellectual Property Rights therein. Customer acknowledges that (a) all right, title and interest in and to the Services, including the SkyKick Platform and Documentation provided in connection therewith, and all Intellectual Property Rights embodied therein or associated therewith, are and shall remain with SkyKick or its third party licensors; (b) no right or interest in the SkyKick Platform is conveyed other than the limited licenses granted herein; (c) the SkyKick Platform is protected by copyright and other intellectual property laws; and (d) the SkyKick Platform embodies valuable confidential and secret information of SkyKick or its licensors, the development of which required the expenditure of considerable time and money. Customer will not take or encourage any action during or after the Term of this Agreement that will in any way impair the rights of SkyKick in and to the SkyKick Platform, any proprietary software or technology of SkyKick, or any Intellectual Property Rights in and to any of the foregoing.
5. SkyKick Services.
5.1 Provision of Services. SkyKick will, subject to all other terms and conditions of this Agreement, use commercially reasonable efforts to provide the Services in material accordance with the applicable Documentation for such Services. Customer acknowledges that SkyKick provides the Services to Customer for Customer’s own business operations and not for re-sale or redistribution.
5.2 Access to and Use of the Software. During the Term of the Agreement, SkyKick grants to Customer a limited, nonexclusive, nontransferable right to permit and enable Users to access and use the SkyKick Platform solely in connection with the Services provided under the Agreement and to use the Documentation in connection with Customer’s exercise of such right. Except for the limited licenses granted hereunder, SkyKick reserves all rights not expressly granted and no such additional rights may be implied.
6. Customer’s Obligations and Acknowledgements.
6.1 Cooperation. Customer understands and agrees that Customer’s full, reasonable cooperation is required in order for SkyKick to properly, efficiently and effectively perform the Services hereunder. Customer agrees to comply with all of SkyKick’s and any applicable SkyKick Partner’s reasonable requests made in connection with the provision of Services to Customer hereunder. Customer understands and agrees that failure to so cooperate with SkyKick or an applicable SkyKick Partner could result in SkyKick’s inability to properly, efficiently and effectively perform the Services hereunder and shall be deemed a material breach of this Agreement by Customer hereunder. SkyKick’s provision of the Services is subject to (a) delays due to unanticipated Customer requests, complications with Customer’s systems, programs, accounts and data, and other unforeseen circumstances beyond the reasonable control of SkyKick, (b) Customer’s cooperation (including the cooperation of third parties under such Customer’s control) with SkyKick and applicable SkyKick Partners, as well as (c) Customer’s compliance with this Agreement. SkyKick shall have no liability whatsoever for any delays, deficiencies or failures that occur in the performance of Services as a result of Customer’s failure to so cooperate. Customer hereby consents to receive communications from SkyKick (via email or other means) regarding SkyKick’s performance of the Services.
6.2 Compliance with Provider Agreement and Partner Contract. Customer will comply with all terms and conditions set forth in each Provider Agreement and, to the extent applicable, the terms and conditions set forth in any Partner Contract. SkyKick will have no responsibility or liability for Customer’s breach of any Provider Agreement and/or Partner Contract. CUSTOMER ACKNOWLEDGE AND AGREES THAT IN THE PROVISION OF SERVICES TO CUSTOMER, SKYKICK MAY PROVIDE THE APPLICABLE PROVIDER WITH CUSTOMER DATA (INCLUDING PERSONALLY IDENTIFIABLE AND FINANCIAL INFORMATION, SUCH AS CREDIT CARD INFORMATION) IN ORDER TO REGISTER CUSTOMER FOR THE PROVIDER OFFERINGS, AND THAT SUCH PROVIDER SHALL HAVE THE RIGHT TO INVOICE CUSTOMER AND/OR AUTOMATICALLY CHARGE CUSTOMER’S CREDIT CARD PROVIDED TO SUCH PROVIDER FOR CUSTOMER’S USE OF THE PROVIDER OFFERINGS IN ACCORDANCE WITH THE TERMS OF THE APPLICABLE PROVIDER AGREEMENT.
6.3 Compliance with Law. Customer will comply with all applicable laws, rules, regulations and orders relating to its performance and receipt of Services under this Agreement (including, without limitation (a) those concerning the exporting, importing and re-exporting of computer software and the protection of privacy and personal information (including, without limitation, the Australian Privacy Act 1988 (Cth), even if it is not an organisation bound by the Act), (b) laws and policies related to unsolicited, commercial e-mails (SPAM) or any illegal, objectionable or offensive activities, and (c) laws and policies applicable to Customer’s processing and storage of Customer Data in connection with Customer’s use of the Services).
6.4 Obligations Regarding Customer Data. Customer is solely responsible for, and will indemnify SkyKick against any Liabilities related to: (a) ensuring that the Customer Data complies with all applicable laws, rules, regulations, and policies; (b) any claims arising from or relating to the Customer Data; and (c) properly handling and processing notices sent to Customer by any person claiming that any Customer Data violates such person’s rights.
6.5 Changes to Services. SkyKick may introduce new Services and/or alter existing Services without prior notice to Customers, Users or others, including revising the user interface, features, and functionality of the Services as part of improvements or other necessary changes to the Services during the Term. SkyKick may also update or revise the Documentation during the Term. SkyKick will have the right, in its sole discretion, to discontinue some or all of the Services, or to change some or all of the Services, upon notification to Customer of any such discontinuation or change.
6.6 Use of the SkyKick Intellectual Property Rights. Customer will not, and will not encourage or permit any User or other Person to: (a) use the SkyKick Platform in any manner or for any purpose other than as expressly permitted by this Agreement; (b) access or use the SkyKick Platform in a way intended to avoid incurring fees to be paid to SkyKick pursuant to this Agreement; (c) access or use the SkyKick Platform in any way that violates this Agreement or any applicable laws, rules, or regulations; (d) modify, alter, tamper with, repair or otherwise create derivative works of any software, technology, content or any Intellectual Property Rights of SkyKick included in or used to provide the SkyKick Platform; or (e) reverse engineer, disassemble or decompile the SkyKick Platform or any software or technology of SkyKick included in or used to provide the Services, or (f) attempt to discover or recreate the SkyKick Platform or any software, technology or Intellectual Property Rights of SkyKick.
6.7 Third Party Products and Services. Except as otherwise expressly provided under this Agreement, Customer is solely responsible for obtaining and maintaining, at its sole cost and expense, hardware, equipment, third party software, and any warranties and support and maintenance services related to each of the foregoing, and all Internet browsers and connections required to access or use any of the Provider Offerings or the SkyKick Platform. Without limiting the foregoing, Customer must obtain and maintain, and pay all charges, taxes and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Customer to access and use the SkyKick Platform.
6.8 Responsibility for Other Parties. Customer will be liable for any action that it permits, assists or facilitates any of its affiliates, officers, directors, employees, contractors, representatives, agents, Users, or other Person (each, a “Customer Party,” and collectively, “Customer Parties”) to take related to this Agreement, the Customer Data, the use of any Provider Offerings, or the use of the SkyKick Platform. Customer will ensure that all Customer Parties comply with Customer’s obligations under this Agreement.
6.9 Notification of Unauthorized Use. Customer will immediately notify SkyKick in writing of any unauthorized use of the SkyKick Platform or breach of this Agreement that comes to Customer’s attention. In the event of any unauthorized use by any third party that obtained access to the SkyKick Platform directly or indirectly through Customer, Customer will take all steps necessary to terminate such unauthorized use and will provide SkyKick such cooperation and assistance as requested by SkyKick in connection with SkyKick’ actions to stop or prevent unauthorized use of the SkyKick Platform.
6.10 Limited Use of the SkyKick Platform. Customer’s access to the SkyKick Platform shall be limited to the purpose of using and receiving the Services for Customer’s personal use (or the use of the entity that Customer’s represents). Customer may not access and use the SkyKick Platform for the purpose of developing (or intending to develop) a product or service that contains substantially similar capabilities or functionalities as, or that otherwise competes with the Software and Services.
6.11 Passwords. Customer is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other credentials and login information (collectively, “Passwords”) that have been provided to Customer or that are generated in connection with Customer’s use of the SkyKick Platform. Customer will not disclose or make available Passwords other than to authorized Users, if applicable, and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords or the SkyKick Platform. Customer is fully responsible for all activities that occur in connection with the Passwords.
6.12 Downtime. SkyKick may suspend or limit access to the SkyKick Platform for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the SkyKick Platform for any reason, including as a result of power outages, system failures, maintenance, upgrades or other interruptions.
6.13 Suspension, Limitation or Termination. SkyKick may, without liability to Customer, immediately suspend, terminate or limit access to the SkyKick Platform at any time in the event (a) SkyKick determines that the SkyKick Platform is being used in violation of applicable federal, state or local law or ordinance, this Agreement, or any agreement or policy applicable to the SkyKick Platform; (b) SkyKick determines that the SkyKick Platform is being used in an unauthorized or fraudulent manner or that Customer has submitted fraudulent or inaccurate information to SkyKick, a Provider or a SkyKick Partner; (c) SkyKick determines that Customer’s use of the SkyKick Platform adversely affects SkyKick’s equipment or service to others; (d) SkyKick is prohibited by an order of a court or other governmental agency from providing the Services; (e) of a denial of service attack or any other event which SkyKick determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; (f) of a security incident or other disaster that impacts the Services or the security of Customer Data; or (g) a SkyKick Partner’s failure to pay SkyKick any Fees applicable to Customer’s use of the SkyKick Platform. SkyKick shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s use of the Services in accordance with this Section 6.13.
6.14 Postings Regarding the Services. Customer grants SkyKick perpetual, irrevocable, royalty-free, non-exclusive, worldwide, sublicensable permission to use, edit, reproduce, distribute, display, and publish at any time, in whole or in part and in any media, and at SkyKick’s discretion (including, without limitation, publication on the Internet) any comments, reviews, or other postings made by Customer regarding SkyKick or the Services, whether to SkyKick directly, on any third party websites, or otherwise (“Postings”). Customer acknowledges and agrees that Postings may include, but are not limited to, Customer’s username, statements, and employer name, and agrees to provide additional appropriate testimonial affidavits and supporting information and documentation at SkyKick’s request. Customer represents and warrants such Postings reflect Customer’s honest beliefs and real experience in connection with SkyKick or the Services, are made voluntarily, and are provided without compensation to Customer. Customer waives, releases, and discharges SkyKick and its employees, officers, affiliates, licensees, successors, assigns, agents, customers, and suppliers from any and all claims Customer may now or later have (whether related to copyright, right of privacy, right of publicity, performer rights, tort, contract, statute or otherwise) by reason of any use, edit, reproduction, distribution, display, or publication of the Postings by SkyKick or by any third party authorized to do so by SkyKick. Customer will not to assert (a) any ownership or other right or interest in the Postings or (b) any claim for compensation related to the Postings or the use, reproduction, distribution, or publication thereof. Customer may withdraw Customer’s permission to SkyKick to use, edit, reproduce, distribute, display, or publish Postings at any time by contacting SkyKick at email@example.com, provided that such withdrawal shall only apply to Postings which SkyKick can easily remove from the SkyKick Site or other websites, and shall not apply to any printed materials or publications in circulation or ordered for circulation at the time of such withdrawal.
7. Fees. All fees, costs and expenses due and payable by Customer for use or receipt of the Services (“Fees”) and corresponding payment terms and conditions are established between Customer and a SkyKick Partner as set forth in the applicable Partner Contract and are independent of any amounts due and owing from the SkyKick Partner to SkyKick with respect to such Services. SkyKick will not be responsible or liable to Customer for any disputes arising out of or related to the invoicing, billing, collection, payment or non-payment of any amounts paid or owed pursuant to a Partner Contract. Customer acknowledges that SkyKick may terminate this Agreement or suspend Services in the event that the applicable SkyKick Partner fails to pay SkyKick any amounts that are due and payable from the SkyKick Partner to SkyKick arising out of Customer’s use or receipt of the Services without regard to whether Customer has or has not paid the SkyKick Partner for such Services.
8. Representations and Warranties; Disclaimer.
8.1 Warranty. Each Party represents and warrants that: (a) it is validly existing and in good standing under the laws of its country or state of incorporation; (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) its execution and delivery of this Agreement and its performance of its obligations under this Agreement will not result in its breach of or default under any agreement or arrangement by which it is bound; (d) the person entering into this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; and (e) this Agreement is valid, binding and enforceable against it in accordance with its terms.
8.2 Disclaimers. EXCEPT AS REQUIRED OF SKYKICK UNDER THE CONSUMER GUARANTEES (AS TO WHICH SEE SECTION 8.3 BELOW), SECTION 8.1 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SKYKICK PLATFORM IS PROVIDED “AS IS.” , SKYKICK AND ITS AFFILIATES MAKE NO (AND HEREBY DISCLAIM ALL) WARRANTIES OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING, WITH RESPECT TO THE SKYKICK PLATFORM, ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY, (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), (C) ANY WARRANTY THAT THE SKYKICK PLATFORM WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT THE CUSTOMER DATA WILL NOT BE LOST OR DAMAGED, AND (D) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
8.3 Consumer Guarantees. The Australian Consumer Law (as embodied in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) may require that certain guarantees must be given by SkyKick to Customer in relation to the supply by SkyKick of goods or services to Customer (Consumer Guarantees).
8.4 Contracting out: If this Agreement is subject to New Zealand law, then the Customer agrees that the Services are supplied by SkyKick and acquired by the Customer in trade in terms of sections 2 and 43 of the New Zealand Consumer Guarantees Act 1993 and that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply to the Customer. The Customer agrees and acknowledges that it is fair and reasonable, in all circumstances, for the Customer to be bound by the terms set out in this Section 8.4.
9. Limitation of Liability. EXCEPT TO THE EXTENT SKYKICK’S LIABILITY ARISES FROM SKYKICK’S FAILURE TO COMPLY WITH THE CONSUMER GUARANTEES (AS TO WHICH, SEE SECTION 8.3 ABOVE), AND TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SKYKICK BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY PRODUCTS, SERVICES OR SOFTWARE PROVIDED BY SKYKICK, INCLUDING THE SKYKICK PLATFORM, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SKYKICK HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER SKYKICK NOR ANY OF ITS AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMER’S INABILITY TO USE THE SERVICES AS A RESULT OF (I) THE TERMINATION OR SUSPENSION OF A PROVIDER AGREEMENT OR PARTNER AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO ANY PROVIDER OFFERINGS, OR (II) ANY DOWNTIME OF ALL OR A PORTION OF THE SKYKICK PLATFORM OR PROVIDER OFFERINGS FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SKYKICK PLATFORM; (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE OR LOSS OF ANY CUSTOMER DATA OR OTHER DATA; OR (E) CUSTOMER’S RECEIPT OF SERVICES UNDER ANY PROVIDER AGREEMENT OR PARTNER AGREEMENT. IN ANY CASE, SKYKICK AND ITS AFFILIATES’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SKYKICK OR TO AN APPLICABLE SKYKICK PARTNER FOR THE PERFORMANCE BY SKYKICK OF THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10.1 General. In addition to all other indemnification obligations set forth in other sections of this Agreement, Customer, at its sole expense, will defend, indemnify and hold harmless SkyKick and its directors, officers, employees, contractors, agents, successors and assigns (collectively, the “SkyKick Indemnitees”) from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) (collectively, “Liabilities”) resulting from any claim (including third party claims), suit, action, or proceeding against any SkyKick Indemnitee, whether successful or not, resulting from or arising in connection with: (a) Customer’s use of the SkyKick Platform; (b) any breach of a Provider Agreement, Partner Contract or other agreement to which Customer or a Customer Party is subject; (c) a Customer Party’s use of the Customer Data, any Provider Offerings, or the SkyKick Platform; (d) any breach of this Agreement or violation of applicable law by Customer or any Customer Party; (e) the Customer Data (including the creation, use, distribution, development, disclosure, design, operation, production, advertising or marketing of the Customer Data) or the combination of the Customer Data with other applications, content or processes, including any claim that any Customer Data infringes, misappropriates or otherwise violates the rights of any third party; (f) a dispute or claim arising out of or related to a Provider Agreement, Partner Contract or Customer’s use of any Provider Offering; (g) the negligence or willful misconduct of Customer or any Customer Party; or (e) Customer’s failure to obtain any required consents or authorizations from Users as described in Section 2.2 of this Agreement.
10.2 Process. SkyKick will reasonably notify Customer of any claim subject to the indemnification obligations set forth in this Agreement, but the failure of SkyKick to so notify Customer will only affect Customers’ indemnification obligations hereunder to the extent that such failure materially prejudices Customer’s ability to defend the subject claim. Provided that Customer promptly investigates and defends any such claim, Customer will have control over the defense and settlement thereof at its sole cost and expense. Notwithstanding the foregoing, Customer will not settle or compromise any claim in a manner that does not fully release SkyKick from such claim or results in a restriction on or admission by SkyKick or subjects SkyKick to any additional obligations. In the event that SkyKick determines, in its sole discretion, that Customer has failed to promptly investigate or rigorously defend any claim for which Customer has an obligation to indemnify, SkyKick will have the right to defend and settle such claim at Customer’s cost and expense.
11. Term; Termination; Effect of Termination.
11.1 Term. This Agreement will commence on the Effective Date and continue in effect as set forth in the applicable Order Form or an applicable Partner Contract (the “Term”).
11.2 Termination. Either Party may terminate this Agreement for any or no reason upon written notice to the other Party. In the event of termination under this Section 11.2 by SkyKick for any reason other than for Customer’s material breach of this Agreement, SkyKick will (a) perform all Services (other than subscription-based Services) under Order Forms received and accepted prior to such termination date; and (b) perform all subscription-based Services under Order Forms received and accepted prior to such termination date for the duration of the then-current subscription term set forth in the applicable Order Form (without renewal) or a period of ninety (90) days (whichever is shorter). Without limiting the foregoing, removal of SkyKick as Customer’s partner of record with respect to a Provider Offering or any failure by Customer to timely pay the Fees will constitute a material breach of this Agreement.
11.3 Effect of Termination. Upon any expiration or termination of this Agreement for any reason, (a) any and all liabilities accrued prior to the date of such expiration or termination will survive (including the payment of Fees for Services performed), (b) each Party will promptly provide the other Party with all Confidential Information then in its possession or destroy all copies of such Confidential Information, at the disclosing Party’s sole discretion and direction, and (c) Customer will promptly discontinue use of the SkyKick Platform. The following sections will survive any expiration or termination of this Agreement: Sections 1, 3, 4, 7, 8, 9, 10, 11.3, and 12.
12. General Provisions.
12.1 Entire Agreement. This Agreement, the Order Form or any other terms and conditions referenced in these this Agreement (collectively, “Additional Policies”) are the entire agreement of the Parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof.
12.2 Governing Law; Venue; Dispute Resolution. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Washington, without resort to its conflict of law provisions. The Parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state and federal courts located in Seattle, Washington, and the Parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement.
12.3 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of SkyKick, and any attempted transfer, assignment or delegation without such consent will be void and without effect. SkyKick may freely assign this Agreement and any right or duty under this Agreement to an affiliate or other Person including by operation of law, change of control, merger, reorganization, or sale of stock or all or substantially all of its assets. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.
12.4 Relationship of the Parties. Neither Party will, for any purpose, be deemed to be an employee, representative, owner or partner of the other Party; and, the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
12.5 References. Neither Party may disclose the specific terms of this Agreement or issue a public statement or press release regarding this Agreement without the prior consent of the other Party. Notwithstanding the foregoing, SkyKick may, during the Term of this Agreement, identify Customer as a customer or user of the Services and display Customer’s logo and/or other branding materials on SkyKick’ website and other marketing materials.
12.6 Nonwaiver. The failure of either Party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
12.7 Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any Party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
12.8 Notice. Any notice, demand or communication required or permitted to be given by any provision of this Agreement will be deemed to have been sufficiently given or served for all purposes if: (a) delivered personally; (b) deposited with a pre-paid messenger, express or air courier or similar courier; or (c) transmitted by telecopier, facsimile, email or other communication equipment that transmits a facsimile of the notice to like equipment that receives and reproduces such notice. Notices will be addressed to a Party at the Party’s address, facsimile number or email address as set forth in an applicable Order Form. Notices will be deemed to have been received (i) in the case of personal delivery, upon receipt, (ii) in the case of messenger, express or air courier or similar courier, two days after being deposited, and (iii) in the case of telecopier, facsimile, email or other communication equipment, the day of receipt as evidenced by a telecopier, facsimile, email or similar communication equipment confirmation statement. Further, either Party may change its contact information by notice in accordance with this Section.
12.9 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision, the affect Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided, that the affected Party: (a) provides the other Party prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event.
12.10 Modifications to the Terms and Conditions. SkyKick may modify the terms and conditions of this Agreement or any Additional Policies at any time by posting a revised version of these Terms and Conditions and the Additional Policies on the SkyKick Site. Unless otherwise set forth in this Agreement, the revised terms shall be effective upon the earlier of (a) ten (10) days after posting and/or notifying Customer of the changes; or (b) upon Customer’s acceptance if SkyKick provides a mechanism for the acceptance of the revised terms, such as a click-through confirmation or acceptance button. By continuing to use or receive the Services after the effective date of any revisions to these Terms and Conditions or any Additional Policies, Customer agrees to be bound by the revised Terms and Conditions or any revised Additional Policies. It is Customer’s responsibility to check the SkyKick Site regularly for changes to these Terms and Conditions or the Additional Policies, as applicable. If Customer disagrees with such modifications, Customer’s sole and exclusive remedy shall be to terminate this Agreement in accordance with Section 11 herein.