Last updated: May 12, 2016
This SkyKick Developer Agreement (“Agreement”) is made between you (either an individual or an entity, referred to herein as “you”) and SkyKick, Inc. (“SkyKick”) and governs your access to and use of the Licensed Material (as defined below).
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY, INCLUDING WITHOUT LIMITATION ANY LINKED TERMS AND CONDITIONS APPEARING OR REFERENCED BELOW, WHICH ARE HEREBY INCORPORATED HEREIN AND MADE PART OF THIS AGREEMENT. BY USING THE LICENSED MATERIAL, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO COMPLY WITH AND TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL APPLICABLE LAWS AND REGULATIONS IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, THEN YOU MAY NOT ACCESS OR USE THE LICENSED MATERIAL. THIS AGREEMENT IS EFFECTIVE AS OF THE FIRST DATE THAT YOU USE THE LICENSED MATERIAL (“EFFECTIVE DATE”).
IF YOU ARE AN INDIVIDUAL REPRESENTING AN ENTITY, YOU REPRESENT THAT YOU HAVE THE APPROPRIATE AUTHORITY TO ACCEPT THIS AGREEMENT ON BEHALF OF SUCH ENTITY, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL ALSO REFER TO THE COMPANY OR ENTITY WHICH YOU REPRESENT. YOU MAY NOT USE THE LICENSED MATERIAL IF YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SKYKICK, OR YOU ARE BARRED FROM USING OR RECEIVING THE LICENSED MATERIAL UNDER APPLICABLE LAW.
SkyKick API and SkyKick Content
- Content ‒ SkyKick information, and any other data and information made available to you through the SkyKick API or by any other means authorized by SkyKick, and any copies and derivative works thereof, and any proprietary rights in or to any of the foregoing.
- Developer Site ‒ SkyKick’s developer site located at developers.skykick.com.
- End Users ‒ Users of your Services.
- Licensed Material ‒ A collective term for the SkyKick API and Content.
- Services ‒ Your websites, applications and other offerings that display Content or otherwise use the Licensed Material.
- SkyKick API ‒ The SkyKick Application Programming Interface (“API”) and the related documentation, data, code, and other materials made available by SkyKick with the API, as updated from time to time.
- SkyKick UI – The SkyKick User Interface or interaction models that SkyKick makes available to you.
- SkyKick Marks ‒ The SkyKick name and any other names, trademarks, logos, seals, insignia or other words, symbols or devices that identify SkyKick.
License from SkyKick.
Subject to the terms and conditions in this Agreement, SkyKick hereby grants you and you accept a non-exclusive, royalty free, non-transferable, non-sublicensable, revocable license during the Term solely to:
- Use the SkyKick API to integrate your Services with SkyKick’s backup or migration services;
- Copy a reasonable amount of and display the Content on and through your Services to End Users;
- Modify Content only to format it for display on your Services; and
- Use and display the SkyKick UI to integrate and interact with SkyKick’s backup or migration services.
Restrictions on Use of Licensed Materials
Reverse Engineering and other Limitations
You will not or attempt to (and will not allow others to) 1) reverse engineer, decompile, disassemble or translate the SkyKick API, or otherwise attempt to derive source code, trade secrets or know-how in or underlying any SkyKick API or any portion thereof; 2) interfere with, modify, disrupt or disable features or functionality of the SkyKick API, including without limitation any mechanism used to restrict or control the functionality of the SkyKick API, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the SkyKick API; 3) sell, rent, lease, sublicense, distribute, redistribute, syndicate, create derivative works of, make available to or for the benefit of any third party as part of any time-sharing, ASP, cloud services, or service bureau arrangement, assign or otherwise transfer or provide access to, in whole or in part, the Licensed Material to any third party, except as expressly permitted herein; 4) create links to the SkyKick API or “frame” or “mirror” the SkyKick API on any other server, or wireless or Internet-based device, or otherwise make available to a third party, any token, key, password or other login credentials to the SkyKick API; 5) use the SkyKick API or the SkyKick UI in connection with third party backup or migration services; or 6) use the Licensed Material for any illegal, unauthorized or other improper purposes.
You will not (and will not attempt to) exceed 100 queries per month through the SkyKick API under this Agreement, or circumvent (or attempt to circumvent) such limitations on use of the SkyKick API (“Rate Limits”), or otherwise use the SkyKick API in a manner that exceeds reasonable request volume as determined by SkyKick from time to time, in SkyKick’s opinion constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of this Agreement. If you circumvent or breach, or SkyKick reasonably believes that you have attempted to circumvent or breach, Rate Limits, controls to limit use of the SkyKick APIs, or the terms and conditions of this Agreement, then SkyKick may in its sole discretion immediately suspend your ability to use the Licensed Materials on a permanent or temporary basis. SkyKick may monitor your use of the SkyKick API to improve the SkyKick Service and to ensure your compliance with this Agreement. If you wish to have the right to issue more than 100 queries per month through the SkyKick API, then please contact: email@example.com and inquire about becoming a SkyKick scale partner.
Use of SkyKick Marks; Publicity
The SkyKick Marks may not be included in or as part of your registered corporate name, any of your logos, or any of your service or product names. Moreover, you may not create any derivative works of the SkyKick Marks or use the SkyKick Marks in a manner that creates or reasonably implies a sense of endorsement, sponsorship, or association with SkyKick. You will not otherwise use the SkyKick Marks in a manner that can mislead, confuse, or deceive users of your Services. All use of the SkyKick Marks and all goodwill arising out of such use, will inure to SkyKick’s benefit. You shall not use the SkyKick Marks for any purpose except as expressly authorized herein without SkyKick’s prior, written consent. You will not remove or alter any proprietary notices or SkyKick Marks on the Licensed Material. You will not make any media release or other public announcement relating or referring to SkyKick or this Agreement without SkyKick’s prior written consent. Both during the Term and thereafter, SkyKick may identify you as a customer of SkyKick for marketing and advertising purposes.
SkyKick may update or modify the SkyKick APIs from time to time, and at its sole discretion (in each instance, an “Update”). You are required to implement and use the most current version of the SkyKick API and to make any changes to your Services that are required as a result of such Update, at your sole cost and expense. Updates may adversely affect the manner in which your Services access or communicate with the SkyKick API or display Content. Your continued access or use of the SkyKick APIs following an update or modification will constitute binding acceptance of the Update.
The Licensed Materials are licensed, not sold. You expressly acknowledge that SkyKick, its licensors and its end users retain all worldwide right, title and interest in and to the Licensed Material, including all rights in patents, trademarks, trade names, copyrights, or any applications for the foregoing, trade secrets, know-how, data, and all other proprietary rights under the laws of the United States, any other jurisdiction or any treaty (“IP Rights”), and you do not acquire any rights in the Licensed Materials, express or implied, except as expressly set forth in this Agreement. You agree not to do anything inconsistent with such ownership, including without limitation, challenging SkyKick’s ownership of the SkyKick Marks and SkyKick UI, challenging the validity of the licenses granted herein, or otherwise copying or exploiting the SkyKick Marks and SkyKick UI during or after the termination of this Agreement, except as specifically authorized herein.
SkyKick may immediately terminate or suspend this Agreement, any rights granted herein, and/or your license to the Licensed Materials, at its sole discretion at any time, for any reason (including for its convenience), by providing notice to you. You may terminate this Agreement at any time by ceasing your access to the SkyKick API and use of all SkyKick Content. Upon termination of this Agreement, all licenses granted herein immediately expire and you must cease use of all Licensed Materials. The parties to this Agreement will not be liable to each other for any damages resulting solely from termination of this Agreement as permitted under this Agreement. Sections II, IV, V, VI and VII of this Agreement will survive the termination of this Agreement.
You may be given access to or may otherwise obtain certain non-public information, software, pricing and specifications that is confidential or proprietary to SkyKick and that is marked as, or communicated to be, “confidential” or “proprietary,” or that a reasonable person would believe to be confidential based on the nature of the information or the circumstances surrounding its disclosure (“Confidential Information”). You may use this Confidential Information only as necessary in exercising your rights granted in this Agreement. You may not disclose any of this Confidential Information to any third party without SkyKick’s prior written consent. You agree that you will protect this Confidential Information from unauthorized use, access, or disclosure in the same manner that you would use to protect your own confidential and proprietary information of a similar nature and in no event with less than a reasonable degree of care.
Other Important Terms
Compliance with Laws; Export and Import
Each party will comply with all applicable foreign, federal, state, and local laws, rules and regulations. The Licensed Material is subject to U.S. export laws and may be subject to import and use laws of the country where it is delivered or used. You agree to abide by these laws. Under these laws, the Licensed Material may not be sold, leased, downloaded, moved, exported, re-exported, or transferred across borders without a license, or approval from the relevant government authority, to any country or to any foreign national restricted by these laws, including countries embargoed by the U.S. Government (currently Cuba, Iran, North Korea, Northern Sudan and Syria); or to any restricted or denied end-user including, but not limited to, any person or entity prohibited by the U.S. Office of Foreign Assets Control; or for any restricted end-use. You will maintain throughout the Term all rights and licenses that are required with respect to your Services.
THE LICENSED MATERIAL IS PROVIDED TO YOU “AS IS”, “WHERE IS”, WITH ALL FAULTS AND SKYKICK HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, LOSS OF DATA, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF THIS AGREEMENT, COURSE OF DEALING OR USAGE OF TRADE. SKYKICK DOES NOT WARRANT THAT THE LICENSED MATERIAL OR ANY OTHER SKYKICK PRODUCT OR SERVICE PROVIDED HEREUNDER WILL MEET ANY OF YOUR REQUIREMENTS OR THAT USE OF SUCH LICENSED MATERIAL OR OTHER PRODUCTS OR SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, VIRUS-FREE OR SECURE. TO THE EXTENT THAT SKYKICK MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED PURSUANT TO SUCH LAW.
You shall defend SkyKick against any and all actions, demands, claims and suits (including without limitation product liability claims), and indemnify and hold SkyKick harmless from any and all liabilities, damages and costs (including without limitation reasonable attorneys’ fees) to the extent arising out of: (i) your use of the Licensed Material in any manner that is inconsistent with this Agreement; (ii) the performance, promotion, sale or distribution of your Services; (iii) your failure to comply with any applicable laws; or (iv) your breach of your confidential obligations hereunder; or (v) your gross negligence or willful misconduct. In the event SkyKick seeks indemnification or defense from you under this provision, SkyKick will promptly notify you in writing of the claim(s) brought against SkyKick for which it seeks indemnification or defense. SkyKick reserves the right, at its option and sole discretion, to assume full control of the defense of claims with legal counsel of its choice. You may not enter into any third party agreement, which would, in any manner whatsoever, affect the rights of SkyKick, constitute an admission of fault by SkyKick or bind SkyKick in any manner, without the prior written consent of SkyKick. In the event SkyKick assumes control of the defense of such claim, SkyKick shall not settle any such claim requiring payment from you without your prior written approval.
Limitation of Liability
IN NO EVENT WILL SKYKICK BE LIABLE TO YOU OR ANY END USERS FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF OR DAMAGE TO USE, DATA, BUSINESS, GOODWILL OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN ANY CASE, SKYKICK’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS UNDER THIS AGREEMENT WILL NOT EXCEED $50.00 USD. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
SkyKick may update or modify this Agreement and other terms and conditions, from time to time at its sole discretion by posting the changes on this site or by otherwise notifying you (such notice may be via email). You acknowledge that these updates and modifications may adversely affect how your Service accesses or communicates with the SkyKick API. If any change is unacceptable to you, your only recourse is to cease all use of the Licensed Material. Your continued access or use of the Licensed Material will constitute binding acceptance of the such updates and modifications.
This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings and contemporaneous communications. Any modification to this Agreement must be in a writing signed by both you and SkyKick. You may not assign any of the rights or obligations granted hereunder, in whole or in part, whether voluntarily or by operation of law, contract, merger (whether you are the surviving or disappearing entity), equity or asset sale, consolidation, dissolution, through government action or otherwise, except with the prior written consent of SkyKick. Any attempted assignment in violation of this paragraph is null and void, and SkyKick may terminate this Agreement. This Agreement does not create or imply any partnership, agency or joint venture. This Agreement will be governed by and construed in accordance with the laws of the state of Washington, without regard to or application of conflicts of law rules or principles. All claims arising out of or relating to this Agreement will be brought exclusively in the federal or state courts in Seattle, Washington and you consent to personal jurisdiction in those courts and agree not to object to the venue of such courts. Despite the foregoing, you agree that money damages would be an inadequate remedy for SkyKick in the event of a breach or threatened breach of a provision of this Agreement protecting SkyKick’s IP Rights or Confidential Information, and that in the event of such a breach or threat, SkyKick, in addition to any other remedies to which it is entitled, is entitled to such preliminary or injunctive relief (including an order prohibiting Company from taking actions in breach of such provisions), without the need for posting bond, and specific performance as may be appropriate. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated. No waiver by SkyKick of any covenant or right under this Agreement will be effective unless memorialized in a writing duly authorized by SkyKick. If any part of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.