Skytap Terms of Service

Revised and effective as of May 15, 2018

Skytap, Inc. Terms of Service

Revised and effective as of May 15, 2018

These Terms of Service (the “TOS”) expressly include Skytap’s Privacy Policy,  Acceptable Use Policy and Service Level Agreement.  These TOS apply to the services (“Services”) that Skytap, Inc. (“Skytap”) provides to you (the “Customer”) or that Customer accesses. In the event of a conflict between these TOS and the terms of any fully executed or mutually agreed purchase order or agreement (the “Agreement”), the TOS apply, but only to the extent of such conflict. The terms “you,” “your,” “yours,” and “authorized user” 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. The terms “we,” “us,” and “our” refer to Skytap.   Unless otherwise agreed in a writing signed by both parties, these TOS, together with any Agreement constitute the entire agreement between you and us. 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 us to use the Services.  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.

  1. Right to Access and Use the Services.

Pursuant to the TOS and any applicable Agreement, Skytap grants you a limited, personal, non-exclusive, non-transferable, non-sublicensable right to access and use the Services.  The right to access and use the Services granted by this section extends to any Customer agents and contractors, provided you (a) ensure their compliance with the TOS and any applicable Agreement terms, and (b) will be liable for any violations of the TOS and/or Agreement by those parties.

  1. Support.

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 Agreement.  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.

  1. Fees, Invoices and Payment.

This section 4 is applicable only to purchases made directly from Skytap.

  1. Our Service fees will be as set forth in the applicable Agreement and unless otherwise stated, are non-cancellable and non-refundable. Additional services will be agreed upon by the parties in writing.
  2. All fees will be invoiced in advance or as reflected in an applicable Agreement in USD, including all applicable taxes.
  3. Fees for additional capacity required/overage charges will be invoiced in the subsequent month at the existing rates or as stated in an Agreement.
  4. 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 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.
  1. Except for the rights to access and use the Services expressly granted to you by the TOS, Skytap retains all rights, titles, and interests 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 will be implied.  Notwithstanding anything to the contrary, upon termination or expiration of these TOS and/or the Agreement, all rights and licenses granted to Customer under the TOS and/or the Agreement will terminate.
  2. All Customer data, materials and associated intellectual property rights that are provided to Skytap by or on behalf of you under these TOS and, if applicable, Agreement, remain your property (the “Customer Content”).  You represent, warrant, and covenant that all Customer 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 the Customer Content, or have otherwise secured all necessary rights in the Customer 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 the Customer Content, solely to the extent required for fulfilling our duties and obligations to you under the TOS and/or applicable Agreement.   Except as expressly provided for in this section, we will not acquire any right, title or interest in the Customer 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.
  3. If you provide feedback to Skytap regarding the Services or Skytap’s website (“Feedback”), Skytap can freely use the Feedback to improve its operations, products and services.
  4. Skytap may collect registration and other information about your use of the Services.  Skytap may use this information in an aggregate and anonymous manner, provided that this information does not incorporate Customer Content or infringe upon the rights of a Data Subjects, as defined in the Skytap Privacy Policy.  Skytap retains all intellectual property rights in such information.
  5. You understand and agree that the Services are intended to be a test environment, not a production environment, and that Customer Content is subject to loss or corruption. You are wholly responsible for adequate backup of Customer Content. You understand and agree that Skytap will have no liability for any loss or corruption of Customer 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 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.

  1. Services Availability and Modifications.

You are responsible for providing all equipment to access the Services.  We reserve the right to modify all or a part of the Services, with or without notice to you.  For example, we may add or remove functionality or features.  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.

  1. Representations, Warranties and Covenants.
  1. Each party warrants and represents that it has the requisite power and authority to enter and perform its obligations under the TOS.
  2. Each party further warrants and represents that it will comply with all applicable laws and regulations in performing its obligations governed by the TOS.
  3. Skytap warrants that we will perform and provide the Services in accordance with the TOS or Agreement, as appropriate.  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 will be the re-performance of deficient Services, which will be Skytap’s entire liability.
  4. Acceptable Use:  Subject to Customer’s rights as a licensee of software under applicable legislation deriving from EU Directive 2009/24/EC (if applicable), Customer 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. Please see Skytap’s Privacy Policy for details regarding Skytap’s compliance with applicable data protection requirements.
  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 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, SECURE, 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.

  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. SKYTAP’S LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THE TOS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS CONTRACTUAL, NON-CONTRACTUALOR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO US DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE LIABILITY AROSE.  UNLESS OTHERWISE STATED, SKYTAP DOES NOT LIMIT OR EXCLUDE ITS LIABILITY WITH RESPECT TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

  1. Indemnification.

Customer agrees to indemnify and hold Skytap and its respective directors, officers, employees, representatives, agents and contractors from any loss, liability, claim, demand, including reasonable attorneys’ fees, made by any third party due to or arising out of (i) Customer Content you submit, post, transmit or make available through the Services, (ii) your unauthorized use of the Services, (iii) your connection to the Services, including your use of the Services to provide a link to other sites, or to upload content or other information, (iv) your violation of these TOS or other applicable terms and (v) your violation of any rights of another, including any intellectual property rights.

  1. Term and Termination.

(a)    These TOS will terminate upon the earlier of: (i) all Services in any Agreements or other written agreement are completed, or (ii) mutual written agreement by both Skytap and Customer.

(b)    Upon termination of Services, all payment liabilities accrued by Customer prior to the effective date of the termination will survive. You are solely responsible for removing Customer Content from the Services prior to any termination.

  1. Relationship of Parties.

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 will not be deemed to be partners or co-venturers.

  1. Use of Name; Marketing Support.

During your use of the Services, 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 will not be unreasonably withheld, Company may also issue a press release regarding the transaction with Customer.

  1. Force Majeure.

Neither Customer nor Skytap will be liable to the other for any delay or failure to perform any obligation under the TOS 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 Customer 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.

(a)    The TOS are 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 the TOS will not be a waiver of that party’s right to demand strict compliance in the future.

  1. No Third-Party Beneficiaries.

Nothing in the TOS 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 Customer.

  1. Severability.

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