Skytap Terms of Service

Revised and effective as of November 01, 2019

Skytap, Inc. Terms of Service

Revised and effective as of November 01, 2019

These Terms of Service (“TOS”) expressly include Skytap’s Privacy Policy (https:/ www.skytap.com/legal/privacy-policy/), Acceptable Use Policy (https:/ www.skytap.com/legal/acceptable-use-policy/) and Service Level Agreement (https:/ www.skytap.com/customer-success/support/sla). These TOS apply to the services (“Services”) that Skytap, Inc. (“Skytap”) provides to you (the “Customer”), and together with any order forms or other agreements in writing between Skytap and you, are collectively referred to as the “Agreement.” The terms “you,” “your,” and “yours,” refer to Customer, the account administrator, any authorized individual or an entity using the Services. If you are accepting these TOS on behalf of an entity, you represent and warrant that you have the authority to do so. You agree that Skytap may change these TOS as reasonably required and that your continued use of the Services after such a change is considered acceptance of any such changes. Do not access or use the Services if you are unwilling or unable to be bound by the TOS.

  1. Account Registration.

You must register for and maintain an account with Skytap to use the Services. Your Customer account registration requirements include:

  • responsibility to provide and maintain accurate and complete account information, which must be current and updated,
  • responsibility for all activities that occur through your account,
  • responsibility to maintain secure user identification and passwords, including individualized user logins and IDs, which cannot be shared between users,
  • responsibility to promptly notify Skytap of any unauthorized use of a user account or any other breach of security, and
  • in the event of actual or suspected unauthorized use of the Services by anyone obtaining access through your account(s), you will, take all reasonable steps necessary to cease the unauthorized access.

Further, in the event of actual or suspected unauthorized use, Skytap may suspend the account, your access to, and use of the Services. You will cooperate and assist with any actions taken by Skytap to prevent or terminate unauthorized use of the Services.  Skytap, in its sole discretion, may re-instate your access to the Services if it determines that the actual or suspected unauthorized use was not due to your breach of the Agreement or if you have cured your breach of the Agreement. Skytap may also credit your account for suspended access to the Services for reasons other than a breach of the Agreement by you.

  1. Right to Access and Use the Services.

Subject to the terms of this Agreement, Skytap grants you a limited, personal, non- exclusive, non-transferable, non-sublicensable right to access and use the Services during the term of this Agreement. The right to access and use the Services granted by this section extends to any of your agents and contractors, provided you (a) ensure their compliance with the TOS and any applicable Agreement terms, and (b) will be liable and responsible for any violations of the TOS and/or Agreement by those parties. You may also transfer this license to your own customers as part of a bundled product or service offering, provided that you: (a) ensure compliance by customers with the terms of this TOS, and (b) will be liable and responsible for any violations of the TOS by your customers as if those violations were committed by you, and (c) remain responsible for payment of all fees due to Skytap, regardless of whether or not you have collected any fees from your customers.

  1. Restrictions.

You must comply with all applicable laws, including privacy laws, when using the Service; for the avoidance of doubt, you will be responsible for notifying parties that telephone calls are being recorded, to the extent required. 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:

(i) except as permitted in Section 2 above and subject at all times to the terms of this TOS, make any Service available to anyone other than your employees, agents or contractors, or use the Services for the benefit of anyone other than you,

(ii) except as permitted in Section 2 above and subject at all times to the terms of this TOS, sell, resell, license, sublicense, distribute, make available, rent or lease the Services,

(iii) use the Services in violation of law or third-party privacy rights,

(iv) interfere with or disrupt the integrity or performance of the Services,

(v) attempt to gain unauthorized access to the Services or its related systems or networks,

(vi) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit,

(vii) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof, or

(vii) disassemble, reverse engineer, or decompile the Services, or access them to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Services, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent, in each case except as permitted under applicable law.

  1. Fees, Invoices and Payment.

a. All fees related to your use of Services will be as set forth in the applicable Agreement(s) and order form(s) and unless otherwise stated, are non-cancellable and non-refundable.

b. You will be responsible for and shall pay all Taxes imposed on or with respect to the Services whether such Taxes are imposed directly upon you or upon us. “Taxes” mean all applicable federal, state and local taxes, fees, charges, or other similar exactions, including, without limitation, sales and use taxes, excise taxes, VAT, GST, or other license or business and occupations taxes.

c. Any payment not received when due may accrue interest at a rate of the lesser of 1.5% per month or the maximum amount allowed by law. In the event of past due amounts, you will be liable for all costs of collection, including attorneys’ fees. Skytap may, as a result of late payment, among other remedies available to it, discontinue access to the Services. If applicable, you will provide written instructions to us of any requirements for the issuance and submission of invoices through any electronic procurement tool.

  1. Intellectual Property Rights; Feedback and Information Collection.

a. Except for the rights to access and use the Services expressly granted to you by this Agreement, Skytap retains all right, title, and interest in and to the Services, including all related intellectual property rights. The Services are protected by applicable intellectual property laws in the U.S. and internationally. No grant or transfer of any right, title or interest to you is implied. Notwithstanding anything to the contrary, upon termination or expiration of this Agreement, all rights and licenses granted to you under this Agreement will terminate.

b. All of your data, materials and associated intellectual property rights that you provide to Skytap by yourself or on your behalf while using the Services, remain your property (the “Your Content”). You represent, warrant, and covenant that all of Your Content and its provision to Skytap is compliant with all applicable laws, rules and regulations, and you own all rights, title and interest in and to Your Content, or have otherwise secured all necessary rights in Your Content for its use. During your use of the Services, you grant to us, our agents, consultants and subcontractors, a royalty-free and nonexclusive, right and license to use Your Content, solely to the extent required for fulfilling our duties and obligations to you under this Agreement or as otherwise described in Skytap’s Privacy Policy. Except as expressly provided for in this section, we will not acquire any right, title or interest in Your Content, and no right, title or interest will be implied. Unless otherwise agreed in writing, the rights and licenses granted to Skytap will cease upon termination of the Services.

c. If you provide feedback to Skytap regarding the Services (“Feedback”), Skytap can freely use the Feedback to improve its operations, products and services. Accordingly, you hereby grant to us a non-exclusive, fully paid, royalty-free, perpetual and irrevocable license to use the Feedback in any manner and for any purpose.

d. Skytap may collect registration and other information about your use of the Services. Skytap may use this information in an aggregate and anonymous manner for internal business purposes such as improving Skytap’s products and services, provided that Skytap will not sell or otherwise provide this information to any third party, except as expressly described in the Skytap Privacy Policy. This information will also not incorporate Your Content or infringe upon the rights of a Data Subject, as defined in the Skytap Privacy Policy. Skytap retains all intellectual property rights in such information.

e. Skytap’s Services are not intended to be the sole storage repository for Your Content. You are wholly responsible for adequate backup of Your Content. You understand and agree that Skytap will have no liability for any loss or corruption of Your Content.

  1. Third Party Software Applications

At your election, the Services may enable you to upload, purchase and use third party software applications or may facilitate the use of third-party applications. Skytap exercises no control over the third-party software applications, and we are not responsible for their performance. Your purchase or use of such applications will be governed by the terms and conditions of such third parties, and you may therefore be asked to accept terms and conditions at the time of purchase and/or access to them. Skytap will not be 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 or applications. You are responsible for all fees charged by third parties to access the Services or for other services you require to use the Services. You are responsible for obtaining all software application licenses necessary for you to install them on or to use them in conjunction with the Services. If Skytap believes that you do not have the necessary rights to use any software applications that you have installed on or are using in conjunction with the Services, Skytap may suspend or terminate your access to the Services.

  1. Services Availability and Modifications.

You are responsible for providing all equipment to access the Services. Skytap reserves the right to modify all or a part of the Services, with or without notice to you.  For example, Skytap may add or remove functionality or features. Skytap will not be liable to you or to any third party for any such actions, except that if Skytap permanently discontinues the Services Skytap will provide you, as your sole and exclusive remedy, and our sole and exclusive liability, a prorated refund representing the unused portion of any fees that you have paid in advance.

Your use of Services includes data transfers aggregated across your environments in Skytap.  Skytap reserves the right to limit excessive bandwidth usage when your aggregate data transfer rates into or out of your account exceed 100 megabits/second.

  1. Confidential Information.

a. During the term of this Agreement, either Party (for purposes of this section, the “Disclosing Party”) may disclose or cause to be disclosed, to the other Party (for purposes of this section, the “Receiving Party”) certain confidential information (“Confidential Information”). Confidential Information includes, but is not limited to, information or materials related to the Disclosing Party’s or related parties’ respective business affairs and/or procedures, designs, programs, flowcharts, and documentation relating to information technology, whether or not owned by Disclosing Party or any of its related parties, and all documents and information supplied by Disclosing Party marked confidential or which by the nature or type of information or manner of disclosure would reasonably indicate the proprietary or confidential nature thereof, including, information related to the Services provided hereunder. Receiving Party agrees to use Confidential Information solely in connection with the Services or as otherwise permitted under this Agreement and not to disclose such Confidential Information to any third party, or make commercial use of such Confidential Information, except as permitted hereunder or as expressly consented to in advance in writing by Disclosing Party in its sole discretion, which consent may be withheld. Except as expressly permitted hereunder, Receiving Party will disclose the Confidential Information only to its employees and permitted contractors, agents and representatives who have reason to know such Confidential Information in the performance of the Services hereunder and who are bound by obligations of confidentiality no less protective of Disclosing Party’s rights than provided under this section.

b. Confidential Information does not include information which (i) is or becomes publicly known through no wrongful act of the Receiving Party, (ii) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party, (iii) is rightfully received by Receiving Party from a third party who is authorized to make such disclosure, or (iv) is independently developed by Receiving Party without reliance upon any of Disclosing Party’s Confidential Information.

c. Disclosing Party will have the right to request at any time and from time to time during the term of this Agreement, the return and/or destruction of Confidential Information and all copies, written descriptions or notes relating thereto. Receiving Party will as soon as practical following such request provide Disclosing Party with a certification that the Confidential Information has been returned and/or destroyed pursuant to Disclosing Party’s request.

d. In the event that Receiving Party is subject to a court order, an order of a governmental or regulatory authority, or a similar process (a “Summons”) compelling disclosure or transfer of any Confidential Information, Receiving Party may disclose Confidential Information to the extent required by such Summons, provided that (i) Receiving Party immediately notifies Disclosing Party if legally permissible, so that Disclosing Party may seek a protective order, (ii) Receiving Party reasonably cooperates with Disclosing Party (at Disclosing Party’s expense) in seeking such protective order, (iii) if Disclosing Party cannot obtain a protective order, Receiving Party discloses only those portions of Confidential Information that in the reasonable opinion of its legal counsel are required to be disclosed, and (iv) all such Confidential Information required to be disclosed will remain subject to the obligations in this Agreement.

  1. Representations, Warranties and Covenants.

a. Each party warrants and represents that it has the requisite power and authority to enter and perform its obligations under this Agreement.

b. Each party further warrants and represents that it will comply with all applicable laws and regulations in performing its obligations governed by this Agreement.

c. Skytap warrants that it will perform and provide the Services in accordance with this Agreement. Skytap warrants that the Services will, during the term of your use of Services, materially conform to the description of the Services published by Skytap in writing.  For breach of the express warranty set forth above, your exclusive remedy will be the re-performance of deficient Services, which will be Skytap’s entire liability.

d. You represent and warrant that: (a) you will not upload or request that Skytap import any information or data to the Service unless you have all permissions or licenses necessary to do so and to authorize Skytap’s use of that information in accordance with this Agreement; and (b) your use of the Service will not subject Skytap to any liability or cause Skytap to violate any law, rule, or regulation or guideline.

e. You represent, subject to your rights as a licensee of software under applicable legislation deriving from EU Directive 2009/24/EC (if applicable), that you will comply in all respects with Skytap’s Acceptable Use Policy, located at: https://www.skytap.com/legal/acceptable-use-policy/ (“AUP”).

  1. Data Protection.

This Agreement is subject to Skytap’s Privacy Policy at https://www.skytap.com/legal/privacy-policy/.

  1. Disclaimer of Warranties.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, SKYTAP AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND QUALITY. SKYTAP AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SKYTAP AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE, OR (B) THE QUALITY OF THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER SKYTAP NOR ITS THIRD-PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SKYTAP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY SKYTAP, THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS.

  1. Limitation of Liability.

NEITHER PARTY WILL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOST PROFITS, REVENUES, BUSINESS INTERRUPTION OR LOSS OR CORRUPTION OF DATA OR BUSINESS INFORMATION, EVEN IF THE PARTY KNEW THAT SUCH DAMAGES WERE POSSIBLE.  EACH PARTY’S LIABILITY OF ANY KIND 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 CONTRACTUAL, NON-CONTRACTUAL OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY YOU TO SKYTAP DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE LIABILITY AROSE. UNLESS OTHERWISE STATED, EACH PARTY DOES NOT LIMIT OR EXCLUDE ITS LIABILITY WITH RESPECT TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  1. Indemnification.

a. Each party will indemnify the other party and its respective directors, officers, employees, representatives, agents and contractors from and against all third-party claims, liabilities, damages, losses and expenses (“Claims”) arising out of or in connection with the violation of an intellectual property rights arising from the Services. The foregoing indemnification will not apply to any Claims against you where any infringement, misappropriation or violation of any third party intellectual property rights would not have occurred but for your (i) modification of the Services; (ii) combination of the Services with any service or product not provided by Skytap; or (iii) failure to comply with the terms of this Agreement.

b. You will indemnify Skytap and its respective directors, officers, employees, representatives, agents and contractors from and against all Claims arising out of or in connection with (i) Your Content submitted, posted, transmitted or made available through the Services; (ii) use Third Party Services with the Services not provided by Skytap; or (iii) a breach of its obligations under this Agreement.

c. The indemnified party will (i) promptly give written notice of the claim to the indemnifying party, (ii) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability), and (iii) provide to the indemnifying party all reasonable assistance, at the indemnifying party’s cost.

d. If Skytap receives information about an infringement or misappropriation claim related to the Services, Skytap may in its discretion and at no cost to you (i) modify or replace the Services so that they are no longer claimed to infringe or misappropriate, without breaching our warranties under this Agreement, (ii) obtain a license for your continued use of that Service in accordance with this Agreement, or (iii) terminate the affected Service upon 30 days’ written notice and refund you any prepaid fees, unearned fees as of the effective date of termination.

e. This Section 13 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 13.

  1. Term and Termination.

a. Initial Term; Renewal Terms. This Agreement will commence when you accept this Agreement and will continue to apply to all orders signed by both Parties. The initial term and any renewal terms for Services will be specified in the applicable order. This Agreement will remain in effect with respect to any orders entered into hereunder and will terminate upon the earlier of the following: (i) all Services specified in such orders have been performed or validly terminated in accordance with this Agreement, or (ii) mutual written agreement by both Skytap and you.

b. Termination for Cause. Either party may terminate this Agreement for cause, as follows:

i. for the other party’s failure to materially comply with the terms of this Agreement or an order, provided such breach, if capable of being cured, is not cured within ten (10) days after written notice is provided to the other party; or

ii. in the event the other party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all its creditors or enters into an agreement for extension or readjustment of all or substantially all its obligations.

c. Upon termination of Services, all payment liabilities described in any order accrued prior to the effective date of the termination will survive. The following sections will also survive termination of this Agreement: 3, 4, 7, 8, 10 through You are solely responsible for removing Your Content from the Services prior to any termination. Skytap is not obligated to retain Your Content following termination.

d. Transition Assistance. If you desire to export Your Content from the Services, you must do so prior to the expiration or termination of the Agreement or the Services. Skytap will not be obligated to retain your information, material or data following any termination. Should you desire Skytap’s additional cooperation, assistance and services after expiration or termination of the Agreement or the Services (“Transition Assistance”), the parties will negotiate and establish a mutually acceptable written plan and pricing for the Transition Assistance.

e. In any country where any current or future government regulation or requirement applies to Skytap and presents a hardship for Skytap to operate the Services without change, and/or causes Skytap to believe this Agreement or the Services may conflict with any such regulation or requirement, Skytap may change the Services or terminate this Agreement. If Skytap uses this subsection of this Agreement to change materially the Services, then you may terminate this Agreement without penalty.

  1. Relationship of Parties.

You and Skytap are independent contractors without authority to bind each other or to make any representations on behalf of the other party. You and Skytap will not be deemed to be partners or co-venturers.

  1. Force Majeure.

Neither you nor Skytap will be liable for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond such party’s reasonable control, without limitation, mechanical, electronic or communications failure or degradation. The affected party will notify the other party of such event and resume performance as soon as reasonably practicable.

  1. Notices.

You consent to receive electronically any communications related to your use of the Services. We may communicate with you by email or by posting notices on the Skytap website or through your primary administrator’s Skytap account. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from Skytap intended for receipt by you will be deemed delivered and effective when sent to the primary administrator’s email address provided to us. Skytap’s address for deliveries is: Skytap, Inc., Attn: Legal Department, 719 Second Avenue, Suite 800, Seattle, WA 98104, USA, or legal@skytap.com.

  1. Governing Law; Jurisdiction and Venue.

This Agreement is governed by the laws of the State of Washington, without regard to conflicts of law principles. You consent to the exclusive jurisdiction of the state and federal courts located in King County, Washington, USA, to resolve any dispute, claim or controversy that arises in connection with your use of the Services.

  1. Trade Compliance.

The Services are subject to U.S. export jurisdiction. You must comply with all applicable laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments.

  1. Waiver.

The waiver by either party of any breach of any provision 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 that party’s right to demand strict compliance in the future.

  1. No Third-Party Beneficiaries.

Nothing in this Agreement will be deemed or construed to create any third-party beneficiaries or otherwise give any third party any claim or right of action against Skytap or you.

  1. 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 Services under this Agreement is found to be illegal, unenforceable or invalid, your right to use the Services will immediately terminate.

  1. Assignability.

Neither party may assign this Agreement or any right, duty, or obligation under this Agreement, without the other party’s prior written consent, provided, however, that either party may assign this agreement in the context of a merger, acquisition, change of control or sale of all or substantially all of that party’s assets.

  1. 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.