Skytap, Inc. Terms of Service
Revised and effective as of March 7, 2016
Skytap, Inc. (“Skytap”) will provide services (“Services”) to you (“Customer”) subject to this Terms of Service agreement (“Agreement”). By accessing or using the Services, or by signing an agreement or order form of any type for the Services or by submitting a purchase order for the Services (“Order”), you agree to comply with and be bound by this Agreement. The terms “you,” “your,” “yours,” and “authorized user” refer to Customer, the account administrator, any individual user that is authorized by an account administrator, or an entity using the Services. If you are accepting this 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. In the event of any conflict or inconsistency between this Agreement and an Order, the language of the Order shall prevail, except that in no case shall any terms on a Customer purchase order or other non-Skytap ordering document apply to the provision of Services by Skytap without Skytap’s written consent. Unless otherwise agreed in a writing signed by both parties, this Agreement, together with any Order(s) constitute the entire agreement between you and us.
We may periodically make changes to this Agreement, and you may view the most current version at https://www.skytap.com/legal/terms-of-service. When we make changes to this Agreement, we will send an email notifying you of the changes to the primary administrator most recently provided to us for your account. It is your responsibility to keep the email contact information for the primary administrator updated at all times, and to review the most recent version of this Agreement once you have been notified of the changes. By continuing to access or use the Services after the effective date of any revision to this Agreement, you agree to be bound by the revised Agreement for your use of the Services. Do not access or use the Services if you are unwilling or unable to be bound by this Agreement.
1. Account Registration.
You must register for and maintain an account with us to use the Services. When registering, you and your users shall provide accurate and complete account information, and you shall keep the information current and updated. You shall be responsible for all activities that occur through your account and must keep user identification and passwords secure. You agree to notify Skytap immediately of any unauthorized use of a user account or any other breach of security. If there is actual or suspected unauthorized use by anyone who obtains access to the Services directly or indirectly through your account(s), (a) you will take all steps reasonably necessary to terminate the unauthorized use, and (b) Skytap may suspend the account and 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.
2. Right to Access and Use the Services.
If you are current with payment of Services fees, Skytap will provide you with our Standard Support at no additional charge, or our Premium Support at the rates set out in the applicable Order. Our Standard Support covers support on standard functionality. It does not include the provision of customization advice or consulting services. Neither does it cover problems caused by your system administrator, such as your accidental or inadvertent destruction of your own data, or a Force Majeure.
Trial account users will receive Standard Support for the duration of the trial period.
4. Fees, Invoices and Payment.
This section 4 is applicable to purchases made directly from Skytap. If you have subscribed to or obtained access to the Services through an authorized third-party, the fees, invoices and payment terms will be governed by any Order or other agreement between you and that party.
(a) Our fees for providing the Services shall be as set forth in the applicable Order and shall be non-cancellable and non-refundable. If you request other services, the additional services may be performed as mutually agreed in writing.
(b) We will invoice you in advance in United States dollars, for all fees including all applicable taxes, on the terms described in the applicable Order for the Services. Fees for additional capacity required/overage charges will be invoiced in the subsequent month at the rates described in the Order. 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, Customer shall 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 shall provide written instructions to us of any requirements for the issuance and submission of invoices through any electronic procurement tool.
5. 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 shall retain 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 Customer shall be implied. Notwithstanding anything to the contrary, upon termination or expiration of this Agreement, all rights and licenses granted to Customer under this Agreement shall terminate.
(b) All Customer data, materials and associated intellectual property rights that are provided to Skytap by or on behalf of you under this Agreement shall be and remain your property (the “Customer IP”). During the term of this Agreement, and only for the purpose of fulfilling our duties and obligations to you under this Agreement, you hereby grant to us a royalty-free and nonexclusive right and license to use the Customer IP. We acknowledge and agree that no other use shall be made by Skytap of the Customer IP without your express prior written authorization. Except as expressly provided for in this section, we shall not acquire any right, title or interest in the Customer IP, and no right, title or interest shall be implied. Notwithstanding anything to the contrary, upon termination or expiration of this Agreement, all rights and licenses provided to us under this section shall terminate.
(c) If you provide feedback to Skytap regarding the Services or Skytap’s website (“Feedback”), Skytap shall be free to use the Feedback to improve its operations, products and services.
(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, by compiling and disclosing statistical and performance information related to the provision and operation of the Services, provided that this information does not incorporate Customer IP or identify Customer’s Confidential Information. Skytap retains all intellectual property rights in such information.
6. Third Party Software Applications.
The Services may enable you to upload, purchase and use third party software applications or may facilitate the use of third party applications, if you elect to do so. 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 shall 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 we believe 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, we may suspend or terminate your access to the Services.
7. Services Availability and Modifications.
You are responsible for providing all equipment to access the Services. We reserve the right to modify, update, interrupt, suspend or discontinue, temporarily or permanently, all or a part of the Services, and if we do, we will attempt to provide you with advance notice. We will not be liable to you or to any third party for any such actions, except that if we permanently discontinue the Services we will provide you, as your sole and exclusive remedy, and our sole and exclusive liability, a prorated refund representing the unused portion of any subscription fees that you have paid in advance.
8. Confidential Information.
(a) During the term of this Agreement, either Customer or Skytap (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. Receiving Party agrees to use Confidential Information solely in connection with the Services 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. Receiving Party agrees to take all precautions necessary to safeguard the Confidential Information, which is in its custody or control, which in no event shall be less than reasonable care. Receiving Party shall 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 shall 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 shall 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 shall remain subject to the obligations in this Agreement.
9. Representations, Warranties and Covenants.
(a) Of both Parties:
(i) Each party warrants and represents that it has the requisite power and authority to enter into and perform its obligations under this Agreement and each Order.
(ii) Each party further warrants and represents that it shall comply with all applicable laws and regulations in performing its obligations under this Agreement.
(b) Of Skytap: We warrant that we will perform and provide the Services in accordance with the specifications set forth in the applicable Order. We warrant that the Services will, during the term of your subscription, materially conform to the description of the Services published by us. For breach of the express warranty set forth above, Customer’s exclusive remedy shall be the re-performance of deficient Services, which shall be Skytap’s entire liability.
(c) Of Customer: Subject to Customer’s rights as a licensee of software under applicable legislation deriving from EU Directive 2009/24/EC (if applicable), you shall not, nor permit anyone else to: (i) modify, distribute, adapt, decompile, disassemble, reverse assemble, reverse engineer, prepare derivative works of, or attempt to decipher any code relating to the Services or Skytap technology, (ii) use, evaluate, or view the Services for the purpose of designing, modifying, or otherwise creating any software program, or any portion thereof, that performs functions similar to the functions performed by the Services, or to compete with us (or assist a third party in doing so), (iii) knowingly access or use the Services in a manner that abuses or disrupts the Skytap networks, security systems, user accounts or Services of Skytap or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means, (iv) market, offer to sell and/or resell the Services unless authorized by Skytap, (v) use the Services in violation of Skytap policies, applicable laws, ordinances or regulations, (vi) use the Services to send unsolicited or unauthorized advertising, junk mail or spam; (vii) harvest, collect or gather information or data regarding other users without their consent, (viii) transmit through or upload on the Services any material that may infringe the intellectual property rights or rights of third parties, including trademark, copyright, data privacy or right of publicity; (ix) transmit or post on the Services any material that contains software viruses or other harmful or deleterious computer code, files or programs; (x) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Services, (xi) circumvent or disable any usage rules or other security features of the Services, or (xii) disclose, reproduce, summarize, distribute, or use the Services except as necessary to exercise the rights granted in this Agreement. Skytap may suspend your account and access to the Services for violations of these restrictions.
10. Data Protection.
With respect to any personal data (as defined under EU Directive 95/46/EC and any other applicable data protection legislation) (“Personal Data”) which Skytap processes on Customer’s behalf:
(i) Customer appoints Skytap as a data processor; and
(ii) Customer shall ensure that it is entitled as data controller to allow Skytap to process the relevant Personal Data.
(iii) Skytap shall:
(A) process the Personal Data only according to the Customer’s instructions;
(B) take all reasonable steps to maintain appropriate technical and organizational security measures to safeguard against any unauthorized access, loss, destruction, theft, use, alteration or disclosure; and
(C) process the Personal Data in accordance with applicable data protection laws and the terms of this Agreement.
11. Disclaimer of Warranties.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, 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. SKTYAP 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 CUSTOMER 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 OR ERROR-FREE, OR (B) THE QUALITY OF THE, SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES 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 CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS.
12. 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 SERVICES. SKYTAP’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, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO US DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE LIABILITY AROSE.
NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT, SKYTAP DOES NOT LIMIT OR EXCLUDE ITS LIABILITY WITH RESPECT TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
(a) Each party will indemnify the other party and its respective directors, officers, employees, representatives, agents and contractors from and against all claims, liabilities, damages, losses and expenses (“Claims”) arising out of or in connection with the violation of any third parties’ intellectual property rights arising from the Services. The foregoing indemnification shall not apply to any Claims where any infringement, misappropriation, or violation of any third party intellectual property rights would not have occurred but for the Customer’s (ii) 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) Customer 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 any grossly negligent or willful act or omission of Customer or Customer’s employees or agents in connection with this Agreement.
(c) The indemnified party shall (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) provides to the indemnifying party, at the indemnifying party’s cost, all reasonable assistance.
14. Relationship of Parties; Records.
Customer and Skytap are independent contractors without authority to bind each other or to make any representations on behalf of the other party. Customer and Skytap shall not be deemed to be partners or co-venturers.
15. Use of Name; Marketing Support.
During the term of this Agreement, Skytap will be entitled to display Customer’s corporate name and logo on Skytap’s website and marketing materials and to identify Customer as a customer of Skytap. With Customer’s consent, which shall not be unreasonably withheld, Company may issue a press release regarding the transaction with Customer.
16. Force Majeure.
Neither Customer nor Skytap will be liable to the other 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. The affected party will notify the other party of such event and resume performance as soon as reasonably practicable.
Neither Customer nor Skytap may assign its rights, 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 either party may assign this Agreement without 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 such party’s obligations under this Agreement.
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 most recent applicable Order for Customer 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. Notices sent within the U.S. are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier, and notices sent internationally are deemed given seven (7) business days following the date of mailing or four (4) business days following delivery to a courier. Skytap’s address for deliveries is: Skytap, Inc., Attn: Legal Department, 719 Second Avenue, Suite 800, Seattle, WA 98104, U.S.A.
19. Governing Law; Jurisdiction and Venue.
(a) 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, U.S.A. to resolve any dispute, claim or controversy that arises in connection with this Agreement, except as described below.
(b) Notwithstanding the above, before initiating any legal action or any formal method of dispute resolution relating to a dispute in connection with this Agreement, Customer and Skytap agree to work in good faith to resolve disputes and claims arising out of this Agreement. To this end, either party may request that each party designate an officer or other management employee with authority to bind such party to meet to resolve the dispute or claim. If the dispute is not resolved within thirty (30) days from the commencement of efforts under this subsection, either party may pursue formal dispute resolution or legal action.
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 that party’s right to demand strict compliance in the future.
21. No Third Party Beneficiaries.
Nothing in this Agreement shall be deemed or construed to create any third party beneficiaries or otherwise give any third party any claim or right of action against any party to this Agreement.
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, Customer’s right to use the Services will immediately terminate.
Upon termination of Services, any and all payment liabilities described in any Order accrued prior to the effective date of the termination will survive. The following sections shall also survive termination of this Agreement: 4, 5, 6, 8, 9, 11, 12, 13, 14, 17, 18, 19, 20, 21 and 22. You are solely responsible for removing your information and material from the Services prior to any termination. Skytap is not obligated to retain your information, material or data following termination.