Terms of Use

SKYTAP, INC. SERVICE AGREEMENT

Last Updated: August, 2013

Skytap, Inc. ("Skytap") will provide the Skytap Cloud service ("Service") to you subject to the terms of this Service Agreement. By signing a Skytap order form for the Service (“Order”) or by using the Service, you agree to be bound by this Agreement and use of the Service in compliance with this Agreement. The terms “Subscriber,” "you," "your," "yours," and "authorized user" refer to you, the account administrator, any individual user that is authorized by an account administrator, or an entity using the Service. If you are accepting this Service Agreement on behalf of an entity, you represent and warrant that you have the authority to do so. The terms "we," "us," and "our" refer to Skytap. We may periodically make changes to this Service Agreement and you may view the most current version at www.skytap.com/about-us/terms-of-use. It is your responsibility to review the most recent version of our Service Agreement frequently and remain informed about any changes to it. By continuing to use or receive the Service after the effective date of any revision to this Agreement, you agree to be bound by the revised Agreement for your use of the Service after the date of the revision.

 

1. Account Registration

You must register for and maintain an account with us to use the Service. When registering, you must provide accurate and complete information about yourself and promptly update this information. If you provide any information that is inaccurate or incomplete, or we have reason to believe that the information is inaccurate or incomplete, we may suspend or terminate your account and your use of the Service. Only authorized users may use your account to use the Service and conduct other activities with us. You are responsible for all activities that occur through your account. To protect your account from unauthorized use, keep your user identification and password secure. Please notify us immediately of any unauthorized use of your account or any other breach of security. If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through you, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by Skytap to prevent or terminate unauthorized use of the Service.

 

2. License

Subject to the terms and conditions of this Agreement, Skytap grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as expressly permitted in this Agreement), non-sublicensable right during the term of this Agreement to use the Service solely in connection with Subscriber’s business operations in accordance with the usage limitations specified in the Order.

 

3. Support

If you are current with payment of Service fees, Skytap will provide you with its standard technical support services relating to the Service. Free trial account users may receive support for the duration of the free trial period.

 

4. Fees

Beginning on the Service Commencement Date specified in the Order, and for the term specified in the Order, you will pay the fees as specified in the Order. In addition, if you use additional capacity or Service in excess of that specified in the Order, you will pay an overage fee for such excess usage as specified in the Order.

 

The above does not apply to free trial account users. Free trial account users are entitled to use the Service for the duration of the free trial period. Skytap reserves the right to short the free trial period or terminate free trial access without notice.

 

5. Invoices and Payment

Skytap will invoice you for all applicable fees for the Service specified in the Order, in United States dollars, including all applicable taxes, at the intervals set forth in the Order. Any overage fees for a month are invoiced in the subsequent month. You will pay any invoice within 15 days of the date of invoice. Any payment not received within 15 days of the date of the invoice will accrue interest at a rate of the lesser of 1.5 % per month or the maximum amount allowed by law. You will promptly reimburse Skytap for any costs incurred in connection with collection of past-due amounts, including attorneys’ fees, and Skytap may, as a result of late payment, among other remedies available to it, discontinue its provision of the Service to you in accordance with this Agreement. Fees are non-refundable except as expressly set forth in this Agreement.

 

The above does not apply to free trial account users. Free trial account users are entitled to use the Service for the duration of the free trial period. Skytap reserves the right to short the free trial period or terminate free trial access without notice.

 

6. Term and Termination

The term of this Agreement is set forth in the Order and will automatically renew for additional successive terms of the same duration unless terminated as specified in this paragraph. If the Order specifies a monthly term, then you may terminate the Order and this Agreement at any time on at least one calendar month’s written notice to Skytap. For example, if your Service renews monthly on the first day of each month, and you provide written notice to Skytap of termination on the 15th of September, then your Service will terminate on October 31. If the Order specifies a term that is longer than one month, you may terminate the Order and this Agreement by written notice of non-renewal to Skytap at least 30 days prior to the end of the then-current term. For the purposes of providing notice of non-renewal as described in this paragraph, notice via email to Skytap at billing@skytap.com will be deemed sufficient. Upon termination, your access to any Service that you are registered for at that time will also terminate. Skytap may terminate this Agreement at any time upon 30 days’ prior written notice for its convenience, and will refund to you a pro-rata portion of any unused, prepaid fees.

 

The above does not apply to free trial account users. Free trial account users are entitled to use the Service for the duration of the free trial period. Skytap reserves the right to short the free trial period or terminate free trial access without notice.

 

We may immediately, without notice, suspend or terminate your access to the Service and terminate this Agreement for any of the following reasons:
  • (i) you attempt a denial of service attack or engage in email abuse using the Service (for example: sending unsolicited bulk mail or spam);
  • (ii) you seek to hack the security mechanisms of the service or we otherwise determine that your use of the Service poses a security to us or to another user of the Service (for example: attempting to log into a server that you are not authorized to access, intercepting data not related to your account, or packet or IP spoofing);
  • (iii) you introduce malicious programs into the network or a virtual machine instance (for example: viruses, worms, and other executables intended to inflict harm);
  • (iv) you cause network interference that affects Service performance for other customers;
  • (v) you use the Service in a way that disrupts or threatens the performance or availability of the Service; or
  • (vi) we receive notice or we otherwise determine, in our sole discretion, that you may be using the Service for an illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party.
If you intentionally create a security breach or degradation to the Service, the cost to resolve any damage will be charged to your account at $250 USD per hour. If this Agreement is terminated for any reason: (a) you will pay to Skytap any fees or other amounts that have accrued prior to the effective date of the termination; (b) any and all liabilities accrued prior to the effective date of the termination will survive; and (c) the following sections will survive: Sections 4 through 6, 8, 10 through 13, 16, 17, and 21 through 25. You are solely responsible for removing your information and material from the Service prior to any termination. Skytap is not obligated to retain your information or material following any termination.

 

7. Third Party Software Applications

The Service will enable you to upload and use third party software applications. We exercise no control over the third party software applications and we are not responsible for their performance and do not endorse them. We are not responsible or liable, directly or indirectly, for any damage or loss caused to you by your use of or reliance on any third party software applications. If you do not obtain the third party software applications from Skytap, you are responsible for obtaining all licenses necessary for you to install and use the software application as part of the Service. If we believe that you do not have the necessary rights to use any software applications that you have installed on to the Service, we may suspend or terminate your access to the Service.

 

8. Access to the Service; Modifications to the Service

We do not provide you with the equipment to access the Service. You are responsible for all fees charged by third parties to access the Service (e.g., Internet access charges). We reserve the right to modify or discontinue, temporarily or permanently, all or a part of the Service without notice. We will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, except that if we permanently discontinue the Service we will provide you, as your sole and exclusive remedy, and our sole and exclusive liability, a prorated refund representing the unused (as of the date of termination) portion of any subscription fees that you have paid in advance.

 

9. Restrictions

You must comply with all applicable laws, including U.S. export control laws, when using the Service. Except as may be expressly permitted by applicable law or authorized by us in writing, you will not, and will not permit anyone else to: (a) store, copy, modify, distribute, or resell any of the information, software, or other content made available through the Service (“Service Content”) or compile or collect any Service Content as part of a database or other work; (b) use any automated tool (e.g., robots, spiders) to use the Service or store, copy, modify, distribute, or resell any Service Content; (c) rent, lease, or sublicense your access to the Service to another person; (d) circumvent or disable any digital rights management, usage rules, or other security features of the Service; (e) use the Service in a manner that threatens the integrity, performance, or availability of the Service; or (f) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Service or Service Content.

 

You may not:
  • (i) modify, adapt, decompile, disassemble, or reverse engineer any part of the Service, except to the extent that the foregoing restriction is expressly prohibited by applicable law;
  • (ii) create derivative works based on the Service;
  • (iii) sublicense the Service or any part thereof;
  • (iv) use, evaluate, or view the Service for the purpose of designing, modifying, or otherwise creating any software program, or any portion thereof, which performs functions similar to the functions performed by the Service;
  • (v) provide externally or to third parties any oral or written communication that describes or summarizes the features, functions, or performance characteristics of the Service, or that compares the Service with any other similar product of Yours or any third party; or
  • (vi) disclose, reproduce, summarize, distribute, or use the Service except as necessary to exercise the license granted hereunder.

 

10. Ownership

Except for the rights to access the Service expressly granted to you in this Agreement, we retain all right, title, and interest in and to the Service, including all related intellectual property rights. The Service is protected by applicable intellectual property laws, including United States copyright law and international treaties.

 

11. Feedback

If you provide feedback to us regarding the Service or Skytap’s website (“Feedback”), you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to us perpetual and irrevocable license to use the Feedback for any purpose.

 

12. Information Collection and Use

We may collect registration and other information about your use of the Service. You hereby grant us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to use and exploit that information: (a) internally in any way subject to Skytap’s obligation of non-disclosure in Section 13; and (b) internally or externally in any way in aggregate or anonymous format.

 

13. Confidentiality

Subject to Skytap’s rights under Sections 12 and 20, Skytap will take reasonable precautions not to disclose to any third party, without your consent, the information or material you upload to the Service. Skytap may, however, disclose that information or material if required by law or if Skytap reasonably determines that disclosure is necessary to prevent harm to Skytap or any third party. If Skytap is required by law to disclose any of that information or material, Skytap will make reasonable efforts to provide you prompt written notice of that requirement prior to disclosure.

 

14. Copyright Infringement

It is Skytap’s policy to terminate the Service privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide us with a description of the copyrighted work or other intellectual property that you claim has been infringed, a description of where the material that you claim is infringing is located on the Service, your address, telephone number, and email address, and a statement by you that this information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. Please report this information to Skytap’s designated agent for notice of copyright infringement by email to legal@skytap.com.

 

15. Limited Warranty; Disclaimer

Skytap warrants that the Service will, during the term of your subscription, materially conform to any description of the Service published by Skytap. As Skytap’s sole and exclusive liability for breach of this limited warranty, and your sole and exclusive remedy, Skytap will make reasonable efforts to correct the non-conformity. EXCEPT AS EXPRESSLY SET FORTH IN THE IMMEDIATELY PRECEDING PARAGRAPH, THE SERVICE AND SERVICE CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND SKYTAP EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICE CONTENT, AND YOU RELY ON THE SERVICE CONTENT AT YOUR OWN RISK. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR HARDWARE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SKYTAP OR THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.

 

16. Limitation of Liability

SKYTAP WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SKYTAP HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM YOUR USE OF THE SERVICE, SOFTWARE, AND SERVICE CONTENT. UNDER NO CIRCUMSTANCES WILL SKYTAP'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO SKYTAP FOR THE SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

 

17. Indemnity

You will indemnify and hold Skytap, and its subsidiaries, affiliates, officers, agents, and employees, harmless from any costs, damages, expenses, and liability caused by your use of the Service, your violation of this Agreement, or your violation of any rights of a third party through use of the Service or Service Content.

 

18. Force Majeure

Skytap will not be liable to you for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond Skytap’s reasonable control.

 

19. Assignability

Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.

 

20. Subcontractors

Skytap may utilize one or more subcontractors or other third parties to perform its duties under this Agreement so long as Skytap remains responsible for all of its obligations under this Agreement.

 

21. Notices

Except as otherwise expressly set forth in this Agreement, any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth below for Skytap, and at the address set forth on the Order for Subscriber and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 21. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier. Skytap, Inc. Attn: Legal 710 Second Avenue, Suite 1130 Seattle, WA 98104

 

22. Governing Law; Jurisdiction and Venue

This Service Agreement is governed by the laws of the State of Washington, excluding conflicts of law principles. Any legal actions against us must be commenced in the State of Washington within one year after the claim arose. You consent to the exclusive jurisdiction of the state and federal courts located in King County, Washington.

 

23. Waiver

The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

 

24. Severability

If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Service will immediately terminate.

 

25. Entire Agreement

This Agreement is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Service. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Service that Skytap may provide. No employee, agent, or other representative of Skytap has any authority to bind Skytap with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Skytap will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Skytap specifically agrees to such provision in writing and signed by an authorized agent of Skytap.