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SKYTAP, INC. SERVICE AGREEMENT

Last Updated: February, 2010

Skytap, Inc. (“Skytap”) will provide the Skytap Cloud service (“Service”) to you subject to the terms of this Service Agreement. By using the Service, you agree to be bound by this Agreement and use of the Service in compliance with this Agreement. The terms "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/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 revisions to this Agreement, you agree to be bound by the revised Agreement.

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.

Fees and Payment

Beginning on the Services Commencement Date specified in the order for Services issued by Skytap (“Order”), and for the term specified in the Order, you will pay the fees for Services as specified in the Order. In addition, if you use additional capacity or Services in excess of that specified in the Order, you will pay an overage fee for such excess usage as specified in the Order. The overage fee is due on the last day of the calendar month in which such overage was incurred.

Invoices & Authorization to Charge Credit Card

By executing an Order with Skytap for the Service, and subject to this Agreement, you authorize Skytap or its third party designee to, as indicated in the order, either invoice you or charge the credit or debit card identified on the Order for all applicable fees for the Services specified in the Order, in United States dollars, including all applicable taxes. Skytap or its designee will invoice you or charge your credit or debit card at the intervals described as indicated in the Order. You represent and warrant that you are authorized to use the debit or credit card identified in the Order. If Skytap has approved invoicing terms, you will pay any invoice within 30 days of the date of invoice. Any payment not received within 30 days of the date of the invoice will accrue interest at a rate of 1.5 % per month. 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 Services to you in accordance with this Agreement.

Expired or Refused Credit Card and Other Billing Issues

If Skytap does not receive payment from your credit card provider or if your credit card expires or is rejected, you will pay all amounts due upon demand. You must notify Skytap about any billing problems or discrepancies within 90 days after they first appear on your credit card account statement. If you do not bring them to Skytap’s attention within 90 days, you waive your right to dispute such problems or discrepancies. You are solely responsible for any and all fees charged to your credit card by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds, and over the credit limit fees. A late charge on any outstanding balances will be assessed at 1.5% for each month in which the balance remains unpaid. In the event of any failure by you to make payment, you will be responsible for all reasonable expenses (including attorneys' fees and costs paid to outside counsel and reimbursement for in-house counsel time at rate equal to counsel’s then-current fully-allocated compensation and overhead) incurred by Skytap in collecting such amounts.

Termination of Services and Account

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 Services renew monthly on the first day of each month, and you provide written notice to Skytap of termination on the 15th of September, then your Services will terminate on October 31. If the Order specifies a term that is longer than one month, then upon expiration of the term the Order and this Agreement will renew for additional successive terms of the same duration unless you provide written notice of non-renewal to Skytap at least 30 days prior to the end of the then-current term. For the purposes of this paragraph, notice via email to Skytap at This e-mail address is being protected from spambots. You need JavaScript enabled to view it will be deemed sufficient. Termination of this Agreement is your sole right and remedy with respect to any dispute with us regarding the Service, an Order, your account, or this Agreement. Upon termination, your access to any Service that you are registered for at that time will also terminate. We may suspend your access to a Service or terminate your account, the Order, or this Agreement at any time for any reason or no reason by providing you with notice in any reasonable manner, including via email and via notices posted on the Service. If Skytap terminates this Agreement for its convenience, Skytap will refund to you a pro-rata portion of any unused, prepaid fees. Your rights under this Agreement will terminate automatically if you breach any part of this Agreement.

We may immediately suspend or terminate your access to the Service for cause, including but not limited to the following:

  1. you attempt a denial of service attack or engage in email abuse using the Service (for example: sending unsolicited bulk mail or spam);
  2. 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);
  3. you introduce malicious programs into the network or a virtual machine instance (for example: viruses, worms, and other executables intended to inflict harm),
  4. you cause network interference that affects Service performance for other customers,
  5. you use the Service in a way that disrupts or threatens the performance or availability of the Service;
  6. 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 Skytap terminates this Agreement for its convenience, Skytap will refund to you a pro-rata portion of any unused, prepaid fees. Your rights under this Agreement will terminate automatically if you breach any part of this Agreement.

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.

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 you are only entitled to a prorated refund representing the unused (as of the date of termination) portion of any subscription fees that you have paid in advance if we permanently discontinue the Service.

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. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Service; (b) rent, lease, or sublicense the Service; (c) use, copy, print, electronically capture and disseminate Service Content for gathering knowledge to use against the commercial interests of Skytap; nor (d) circumvent or disable any security or technological features or measures in the Service.

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.

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.

Information Collection and Use

We may collect registration and other information about you through the Service. Please contact us if you have questions about the information that is collected and how that information may be used by us.

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 This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Disclaimer of Warranties

YOUR USE OF THE SERVICE AND SERVICE CONTENT IS AT YOUR SOLE RISK. THE SERVICE AND SERVICE CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. 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.

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.

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.

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.

Updates to this Service Agreement

We may occasionally update this Service Agreement. When we do, we will revise the “last updated” date on the Service Agreement. You should check this Service Agreement frequently to see recent changes. By continuing to use the Service you consent to any updates to this Service Agreement. This version of the Service Agreement supersedes all earlier versions.

Legal Notices

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.

Contacting Skytap

If you have any questions or concerns about this Service Agreement or the Service, please send us a thorough description by email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .