These Terms and Conditions (this “Agreement”) govern all use of the Skyflow Service and Support Service (defined below) by any entity with a valid, signed Order Form (defined below) with Skyflow (“Customer”), unless a separate Master Services Agreement has been signed between Skyflow and Customer.
BY ACCEPTING THIS AGREEMENT OR BY ACCESSING OR USING THE SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
Skyflow and Customer may be referred to collectively as “Parties” or individually as a “Party.”
1.Definitions. Applicable terms not otherwise defined below in this Section 1 shall have the meaning defined hereunder in this Agreement, or in an Order Form.
1.1.“Acceptable Use Policy” means those Skyflow Services obligations described at https://www.skyflow.com/acceptable-use-policy.
1.2.“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3.“Customer Data” means all content, files, images, data, information or other material that Customer loads, or grants Skyflow the right to process, on or through the Skyflow Services and any Personal Data contained therein (as further defined in the DPA attached hereto as Exhibit A). Customer Data also includes any content generated or loaded by Users, and any integrations with the Skyflow Services created by Customer using the Skyflow API (but excluding the actual Skyflow API).
1.4."Documentation" means the online product documentation, user instructions and any files made available to Customer by Skyflow as part of and corresponding to the Skyflow Services located at https://docs.skyflow.com/, as may be updated from time to time by Skyflow.
1.5.“Intellectual Property Rights” means all intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, moral rights, trade secrets, and any other intellectual or industrial property, including registrations, applications, renewals, and extensions of such rights.
1.6.“Skyflow Service(s)” means Skyflow’s proprietary, cloud-based “Privacy Vault” Service, associated Application Programming Interface (“APIs”) and web and mobile solutions, which includes, without limitation, all software, sample code, object code, features, platform access rights, and elements of same, as well as all Documentation provided in connection with same.
1.7.“Order Form” means a Skyflow generated order for the Skyflow Services and/or Professional Services and that includes the number of Users and Workspaces, Named Users, the fees, the applicable initial Subscription Term or Renewal Term, as applicable.
1.8.“Support Services” means “standard,” “premium,” or other level of technical support and application management services, as set forth in the Order Form and as described in Section 4.1 below. If no such distinction is set forth in the Order Form, Support Services shall be “standard.”
1.9.“Term” means the term of the Agreement, including the initial Subscription Term and any Renewal Term(s) as further described in Section 8.1.
1.10.“Workspace” means a separate Customer environment that is accessed by Users and that includes Customer Data as part of Customer’s use of the Skyflow Services.
1.11.“Unique Identifier” means a person, entity, account number, or other identifier for which the fees are calculated off of.
1.12.“User” means the named person or persons authorized by Customer to use the Skyflow Service as defined in an Order Form. Users may be designated in different categories in an Order Form, but all Users shall be identified as "Named Users" having a specific identifier and password to connect to the Skyflow Services. A Named User cannot share Users IDs and passwords with other Users during the Subscription Term, and Customer’s usage of the Skyflow Services is not intended to be for concurrent or shift-based Users. Named User access rights may be reassigned to new Named Users if the original Named User no longer uses and accesses Skyflow Services because of a role change, employment termination or similar reasons, on a permanent basis.
1.13.“PII-User” means the number of users whose data Customer is processing or storing with Skyflow.
1.14.“Cards” means the number of unique cards that Customer is processing or storing with Skyflow.
2.Skyflow Services.
2.1.Provision of Service. The Skyflow Services and Support Services are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). Skyflow may also offer Professional Services (as defined in Section 4.3) related to the Service. Customer shall purchase and Skyflow shall provide the specific Skyflow Services and related Professional Services (if any) as specified in the applicable Order Form entered into as of the Effective Date.
2.2.Access to Service. During each Subscription Term, Skyflow grants to Customer and its Users the following rights: a) the right to use and access the Skyflow Services solely for its own benefit (which includes use for the benefit of end user customers) and in accordance with the terms and conditions of this Agreement, and b) the right to use and access the Documentation; each strictly in accordance with any scope of use, feature, and/or product tier restrictions designated in the applicable Order Form. Customer shall monitor and ensure that it does not exceed any such limitations. During the Subscription Term and based on the Skyflow Service entitlements Customer purchases, Customer may be entitled to use and access the Skyflow API, exclusively to create third-party system or service integrations to connect with the Skyflow Services. Skyflow shall have access to the schema in order to support customers and facilitate ongoing innovation to provide value to Customers. It is expressly stated that Skyflow shall not have access to any Customer data.
2.3.Users. Use of and access to the Skyflow Service is permitted only by Users designated by Customer. Customer may grant certain Users administrative privileges (which may include authority to provision new User accounts, create new Workspaces, assign Users to Workspaces or control User access permissions at the account or Workspace level) as further described in the Documentation (“Administrators”). Customer will, through its Administrators, assign user IDs and passwords for each User to access the Skyflow Services. Customer shall require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken by Users on Customer’s account and for rescinding access to its account (including its Workspaces) by any User that Customer no longer wishes to have access. Users may also be Customer’s end user customers.
2.4.Contractors and Affiliates. Customer may permit its independent contractors and consultants who are not competitors of Skyflow (“Contractors”) and Customer Affiliates to serve as Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement, and any such use of the Skyflow Services by such Contractor or Affiliate is for the sole benefit of Customer (or such Affiliate). Use of the Skyflow Services by Affiliates, Contractors, Users and Customer in the aggregate must be within the restrictions and limitations described in the applicable Order Form.
2.5.General Restrictions. Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Skyflow Services to a third party (except to Users as permitted herein); (b) use the Skyflow Services to provide or create, or incorporate the Skyflow Services into, any similar service provided to a third party or otherwise directly expose the functionality of the Skyflow Service to any third party (except to Users as permitted herein); (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non- public APIs, or to the Skyflow Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Skyflow); (d) copy or modify the Skyflow Services or any Documentation (including any underlying workflows, algorithms, user interfaces, procedures or hierarchies), or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Skyflow Services (including any reports or data printed from the Skyflow Services) and in the Documentation; (f) publicly disseminate information regarding the performance of the Skyflow Services; (g) adversely impact the speed, security or integrity of the Skyflow Services (or any data contained within the Skyflow Services); (h) conduct any penetration testing or exploit or attempt to exploit any vulnerabilities in the Skyflow Services, or (i) violate the Skyflow Acceptable Use Policy, referenced in Section 1.1.
3.Customer Obligations.
3.1.In General. Customer shall ensure that Customer, its Affiliates and its Users’ use of the Skyflow
Services is, at all times, compliant with Customer's privacy policies and all applicable laws.
3.2.Responsibility for Customer Data. Customer is solely responsible for the accuracy, content and legality of all Customer Data (including those submitted by its Users) and for permitting Skyflow to lawfully use, process and access Customer Data in connection with Skyflow performance of the Skyflow Services. Subject to the terms of this Agreement, Customer hereby grants to Skyflow a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit and publicly perform and display the Customer Data solely to the extent necessary to provide the Skyflow Services to or as directed by Customer. Customer represents and warrants to Skyflow that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement, and that no Customer Data will violate or infringe (i) any third-party intellectual property, publicity, privacy or other rights, (ii) any laws, (iii) any terms of service, privacy policies or other agreement governing Customer Data or (iv) the Skyflow Acceptable Use Policy. Skyflow is not responsible for the results produced by, or Customer’s use of, the Skyflow APIs and Services. Customer shall ensure that any integrations created using the Skyflow APIs are compatible and interoperable with Skyflow APIs and Services and any other third party systems.
3.3.Compliance with Laws. Each party shall comply with all applicable international, national, state, provincial or local laws, regulations, directives, statutes, judicial rulings, orders, or other mandates that have the force and effect of law during and after the Term of this Agreement, in connection with each of their respective business operations. Customer acknowledges and agrees that Skyflow Services may only be used and accessed in geographical territories in which the Skyflow Services are lawful and authorized, and do not contravene or violate prevailing government regulations.
3.4.Third Party Services. Skyflow may, from time to time, inform Customers of third-party services that can be used by Customers in connection with the Skyflow Services, including services from companies associated with Skyflow’s partner program, and Customer may opt to use these or other third-party services in connection with the Skyflow Service. Customer’s use of any third- party service in connection with the Skyflow Service, and any terms, conditions, representations and/or warranties associated with such use, are solely as set forth end user license agreement (“EULA”) terms between Customer and such third-party service providers. Skyflow makes no endorsement, representation or warranty with regard to any such third-party services, or any content or materials used in connection with such third-party service, even if such provider is certified by Skyflow or designated as a partner by Skyflow. As such, Skyflow shall not be responsible or liable to Customer in any manner for any such third-party service, or compliance with the EULA. Skyflow does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services, or for any integrations or interfaces created by use of Skyflow’s API(s) that connect such third-party services.
4.Skyflow Obligations.
4.1.Support Services. Skyflow shall provide Support Services by setting up the Customer with a channel to enable the Customer to send messages to Skyflow involving any Skyflow Services issue, error or defect. For clarity, a Slack channel is only offered for “premium” Support Services. Customer’s Administrator can submit direct support requests via email to
Skyflow does not provide Support Services directly to Users.
4.2.Service Level Obligations. Skyflow will use commercially reasonable efforts to make the Skyflow Services available with minimal downtime, 24 hours a day, 7 days a week.
4.3.Professional Services. Skyflow shall provide agreed upon professional consulting services (“Professional Services”) that may be purchased in the applicable Order Form. The scope of Professional Services shall be as set forth in the Order Form or a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Customer shall pay Skyflow at the per-hour rates set forth in the applicable Order Form (or, if not specified, at Skyflow’s then-standard rates) for any Professional Services. Customer will reimburse Skyflow for reasonable travel and lodging expenses as incurred, as pre-approved in writing by Customer. Customer may use anything delivered as part of the Professional Services in support of authorized use of the Skyflow Services and subject to any terms set forth in Order Form and the applicable SOW, but Skyflow shall retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by Skyflow (or its agents)).
4.4.Security Obligations. Skyflow agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Skyflow Services or Customer Data.
4.5.Backups of Customer Data. Skyflow regularly backs up Customer Data stored on the Skyflow Services platform, including for disaster recovery purposes as described in the Documentation. Skyflow shall not of its own accord intentionally delete any Customer Data from the Skyflow Service prior to termination of Customer's applicable Subscription Term. Except for the foregoing, Skyflow expressly disclaims all other obligations with respect to maintaining archives or backups of Customer Data.
5.Order Forms; Pricing Payment Terms; Taxes.
5.1.Order Forms and Pricing. The parties shall enter into and execute an Order Form as of the Effective Date for the initial Subscription Term. Skyflow shall reasonably determine active and inactive Unique Identifiers for pricing purposes. Skyflow may issue new Order Forms for any of the following circumstances: a) for each Renewal Term, b) for any usage by Customer that exceeds the limits set forth in an individual Order Form, c) for Affiliate use of the Skyflow Services (though Customer remains liable for any Affiliate use), or d) for additional access and use rights to new Skyflow Service modules or capabilities that Skyflow makes available only for a separate fee. Separate Skyflow Services modules generally available as of the Effective Date are described in the Documentation and include session recording technology and multi-party session capabilities. Customer acknowledges that a new Order Form is not required for an automatic renewal that occurs under Section 8.1. Skyflow reserves the right to increase fees applicable to Skyflow Services (as well as for additional Users, Unique Identifiers, and other fees for new modules and features) by providing Customer thirty (30) days’ notice prior to the end of each active Subscription Term.
5.2.Payment Terms. Skyflow Service fees are invoiced annually in advance unless otherwise set forth in an Order Form. Except as otherwise set forth in an SOW or Order Form, Professional Services fees are invoiced on a time and materials basis, monthly in arrears. Customer will pay each invoice within 30 days following the invoice date. Late payments will accrue interest at a rate of 1.5% per month or the legal maximum rate, whichever is lower. Customer will cure a delinquency in payment of any amounts owed under this Agreement within 30 days from the date of Skyflow's delinquency notice. If Customer fails to timely cure such delinquency or regain compliance under Section 8.1 (defining the cure period for breach), Skyflow may suspend Customer's use of the Skyflow Services or terminate this Agreement for breach, in addition to any other available rights and remedies. Customer is responsible for all fees, expenses and other costs relating to or connected with making invoiced payments to Skyflow under this Agreement, including the direct payment of all banking fees, ACH processing fees, currency conversions, or similar transactional costs and fees; none of which Customer may deducted or off-set from the Skyflow’s invoiced total fee.
5.3.Taxes. Skyflow Services fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including for example, value-added sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer purchases hereunder. If Skyflow has the legal obligation to pay or collect Taxes for which Customer are responsible under this Section 5.3, Skyflow will invoice Customer and Customer will pay that amount unless Customer provides Skyflow with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of doubt, Skyflow shall be solely responsible for Taxes assessable against Skyflow based on Skyflow’s income, property and employees, and Customer shall not withhold or deduct any amounts for same except as required by applicable law. Should Customer be required under any law or regulation of any governmental entity or authority outside of the United States, to withhold or deduct any portion of the payments due to Skyflow, then Customer shall increase the sum payable to Skyflow by the amount necessary to yield to Skyflow an amount equal to the sum it would have received had no withholdings or deductions been made.
5.4.No Set-Off. Customer will not set-off or offset against Skyflow's invoices amounts that Customer claims are due to Customer by Skyflow, or any amounts resulting from any billing or collection disputes. Customer will bring any claims or causes of action Customer may have in a separate action and waive any rights Customer may have to offset, set-off, or withhold payment for the Skyflow Services delivered by Skyflow.
5.5.Use Verification. Skyflow may remotely review the scope of Customer's use of the Skyflow Service, and on Skyflow's written request, Customer will provide reasonable assistance to verify Customer's compliance with the Agreement with respect to access to and use of the Skyflow Services. If Skyflow determines that Customer has exceeded its permitted access and use rights to the Skyflow Service as described in an Order Form, Skyflow will notify Customer and Customer will, within 30 days, either: (1) disable any unpermitted use; or (2) purchase additional use and access rights commensurate with Customer's actual use, at Skyflow’s then effective rates and fees.
6.Confidential Information.
6.1.Confidential Information Defined. As used herein, "Confidential Information" means non- public information that the party disclosing the information designates at the time of disclosure as being confidential, or, if disclosed orally or visually, is identified as such prior to disclosure, or which, under the circumstances surrounding the disclosure, the receiving party knows or has reason to know should be treated as confidential without the need to be marked as such. Without limiting the foregoing, Confidential Information shall include this Agreement, any information regarding a party's financial condition, pricing and discounts, business opportunities, plans for development of future products, unreleased versions of products, proposals, know-how, technology, security reports, performance benchmarks, and applicable customer information. Skyflow Technology, Skyflow Services, Documentation, and the fees shall be deemed Skyflow Confidential Information. Notwithstanding the foregoing, nothing received by a receiving party shall be construed as Confidential Information which: (i) is or becomes generally available to the public without breach of this Agreement; (ii) is lawfully obtained from a third party without a duty of confidentiality; (iii) is known to the receiving party prior to such disclosure; or (iv) is, at any time, developed by the receiving party independent of any such disclosure(s) from the disclosing party and the receiving party can reasonably show such independence.
6.2.Non-Disclosure. The receiving party shall not disclose the disclosing party's Confidential
Information to any third party and may only use the disclosing party's Confidential Information for the intended business purpose related to this Agreement and for the benefit of the disclosing party. Both parties shall protect Confidential Information from disclosure or misuse by using the same degree of care as for their own confidential information of like importance, but shall at least use reasonable care. Further, both parties agree to have each of their employees or independent contractors with access to any Confidential Information agree to be bound by an enforceable agreement that ensures the protection of the Confidential Information from disclosure to at least the same extent as does this Agreement. Each receiving party agrees to promptly notify the disclosing party upon learning of any unauthorized disclosure of the disclosing party's Confidential Information, and shall provide reasonable assistance to the disclosing party to remedy and contain such breach. In connection therewith, Customer agrees to provide any such notice to Skyflow at legal@skyflow.com. The foregoing notwithstanding, a receiving party may disclose the other party's Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party must give the disclosing party prompt written notice, if legally permitted, and obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure, at this disclosing party’s cost and expense.
6.3.Equitable Remedies. The parties agree that a breach of the confidentiality obligations set forth in
this Agreement by receiving party may cause immediate and irreparable damage to disclosing party and shall entitle disclosing party, without the necessity of posting a bond, to seek injunctive relief to prevent the continued unauthorized use of disclosing party’s Confidential Information, as well as to pursue all other remedies available to disclosing party at law.
7.Representations and Warranties.
7.1.Limited Skyflow Services Warranty. Skyflow warrants, for Customer’s benefit only, that the Skyflow Services will operate in substantial conformity with the applicable Documentation. Skyflow’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for Skyflow to use commercially reasonable efforts to correct a reported materialnon-conformity, or if Skyflow is unable to correct the material defect Skyflow Services, or if Skyflow determines such remedy is impracticable, either party may then terminate the applicable Skyflow Services following a cure period of not less than thirty (30) days. The limited warranty set forth in this Section 7.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge or evaluation basis.
7.2.Limited Support and Professional Services Warranty. In addition, Skyflow shall perform Support Services and Professional Services in a competent, professional and workmanlike manner consistent with applicable industry practices. Provided Customer provides timely written notice of non-conforming Support or Professional Services performance within thirty (30) days following the completion of each Support or Professional Service, Skyflow will timely re-perform the applicable Service in accordance with the foregoing warranty, and if Skyflow is unable or incapable of performing the Support Services within thirty (30) days following the warranty claim, Customer may terminate the Subscription Term, and shall receive as its sole remedy, a refund of any fees Customer has pre-paid for use of the Skyflow Service for the terminated portion of the applicable Subscription Term. If Skyflow is unable or incapable of reperforming the Professional Services within thirty (30) days following the warranty claim, Customer may terminate the SOW, and receive a refund for that portion of the Professional Services that is defective.
7.3.Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES IN SECTIONS 7.1 and 7.2, ABOVE, THE SKYFLOW SERVICES ARE PROVIDED “AS IS”. NEITHER SKYFLOW NOR ITS PARTNERS AND SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. SKYFLOW DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SKYFLOW SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES SKYFLOW WARRANT THAT SKYLOW WILL ASSESS WHETHER SENSITIVE CUSTOMER DATA IS CORRECTLY MASKED. SKYFLOW SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SKYFLOW. SKYFLOW HAS NO LIABILITY OR RESPONSIBILITY, AND CUSTOMER IS SOLELY RESPONSIBLE, FOR ASSESSING WHETHER THE SKYFLOW SERVICES (INCLUDING SKYFLOW’S SECURITY OBLIGATIONS) WILL MEET CUSTOMER’S REGULATORY OR OTHER LEGAL OBLIGATIONS. SKYFLOW DOES NOT REPRESENT OR WARRANT THAT THE SKYFLOW SERVICES WILL ACHIEVE CUSTOMER’S DESIRED RESULTS AND SKYFLOW DISCLAIMS ALL LIABILITY OF ANY KIND FOR DECISIONS MADE BASED ON USE OR OTHER RESULTS OF THE SKYFLOW SERVICE. SKYFLOW HAS NO CONTROL OVER, AND WILL HAVE NO LIABILITY FOR, ANY ACTS OR OMISSIONS OF ANY USERS.
7.4.By Customer. Customer represents and warrants that the Customer has the right and authority to enter into this Agreement, to perform its duties and obligations hereunder, exercise its rights hereunder, and to grant the licenses provided by Customer under this Agreement. Customer further represents and warrants that Customer has secured for Skyflow all right, license, permission and consent necessary to access, process, store and use Customer Data, Users’ account information and any data Users upload to the Skyflow Services platform for the purposes of delivering the Skyflow Services, responding to any technical problems, troubleshooting and testing, and that Customer Data do not and will not infringe on any privacy, intellectual property or other rights of third parties. Customer represents and warrants that Customer’s use of the Skyflow Services shall comply with all applicable laws, regulations, statutes, judicial decisions or other rules and regulatory or governmental rulings in connection with Customer’s business operations. Customer also represents and warrants that Customer will strictly follow and observe the Skyflow implementation descriptions in the Documentation that require the Customer to accurately configure the Services, including the designation of which Customer Data fields, categories and attributes will and must be masked in order to comply with any of the foregoing warranties. Customer shall be solely liable to Skyflow or to third parties, for any violation, breach or non-compliance with any of the foregoing obligations.
8.Term and Termination.
8.1.Term. The term of this Agreement (“Term”) and the Skyflow Services period set forth in the initial Order Form (the “Subscription Term”) shall commence on the Effective Date hereof, and shall continue until the termination of this Agreement in accordance with the terms hereof and for the duration set forth in the Order Form. The Agreement and the Skyflow Services set forth in an Order Form will automatically renew for additional, consecutive one (1) year periods (each a “Renewal Term”), unless either Party provides not less than thirty (30) days’ written notice of non- renewal prior to the end of the applicable Subscription or Renewal Term. After the Initial Term, the fee for Services purchased shall be subject to an annual increase at a rate of five (5%) percent per annum to be calculated at the time of renewal.
8.2.Termination. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3.Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Skyflow Services (including any and all related Skyflow Technology) and delete any and all copies of the Documentation, any Skyflow passwords or access codes and any other Skyflow Confidential Information in its possession. Skyflow shall make Customer Data available for retrieval for thirty (30) days following termination of this Agreement for any reason. Thereafter, Customer acknowledges that following termination (and the Customer Data retrieval period), it shall have no further access to the Skyflow Services or any Customer Data submitted to the Skyflow Service, and that Skyflow may delete any such materials as may have been stored by Skyflow at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4.Survival. All terms of this Agreement which by their nature extend beyond the termination of this Agreement, remain in effect until fulfilled and apply to respective successors and assigns.
9.Indemnification.
9.1.Skyflow Indemnification. Skyflow shall defend Customer from and against any claim by a third party alleging i) the Skyflow Service when used as authorized under this Agreement, infringes a patent, copyright, or trademark (an “IP Claim”); or ii) the gross negligence or willful misconduct by Skyflow, and shall indemnify and hold Customer harmless from and against any damages and costs awarded against Customer or agreed in settlement by Skyflow (including reasonable attorneys’ fees) resulting from such claim, provided that Skyflow shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Skyflow to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of the Skyflow Service is (or in Skyflow’s opinion is likely to be) enjoined, if required by settlement or if Skyflow determines such actions are reasonably necessary to avoid material liability for any IP Claim, Skyflow may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Skyflow Service; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer any fees Customer has pre-paid for use of the Skyflow Service for the terminated portion of the applicable Subscription Term. The foregoing indemnification obligation of Skyflow shall not apply: (1) if the Skyflow Services are modified by any party other than Skyflow, but to the extent the alleged infringement is caused by such modification; (2) if the Skyflow Services are combined with platforms, data, products or processes not provided by Skyflow, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Skyflow Services; or (4) to any action arising as a result of Customer Data. THIS SECTION 9.1 SETS FORTH SKYFLOW’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2.Indemnification by Customer. Customer shall indemnify, defend and hold harmless Skyflow
from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Data or any breach of this Agreement by Customer, or (b) any service or product offered by Customer in connection with or related to the Skyflow Services; any action or omission by Customer (or its agents) that is deemed to be grossly negligent or results from or arises out of, willful misconduct. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Skyflow at Customer's expense.
10.Limitation Of Liability.
10.1.Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS PARTNERS OR SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2.Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY AND ITS PARTNERS AND SUPPLIERS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SKYFLOW DURING TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY UNDER THIS AGREEMENT.
10.3.Excluded Claims. “Excluded Claims” means any claim arising (a) from a party’s breach of its obligations in Section 6 (Confidential Information) (but excluding claims related to Customer Data); or (b) a party’s indemnification obligations under Section 9 of this Agreement.
10.4.Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 10 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11.Ownership.
11.1.Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Skyflow. Customer hereby grants to Skyflow a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit and publicly perform and display the Customer Data solely to the extent necessary to provide the Skyflow Service to or as directed by Customer.
11.2.Skyflow Technology. Customer agrees that Skyflow or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all of the Skyflow Services, Support Services, Documentation, Professional Services deliverables (but excluding any Customer Data incorporated therein) and any and all related and underlying technology and documentation, and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Skyflow Technology”). Except as expressly set forth in this Agreement, no rights in any Skyflow Technology are granted to Customer. Further, Customer acknowledges that the Skyflow Services is an online, hosted solution, and that except for any Skyflow provided SDKs, Customer has no right to obtain a copy of the Skyflow Services. Skyflow reserves all rights in and to Skyflow Technology not expressly granted to Customer hereunder.
11.3.Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Skyflow product or service to Skyflow (“Feedback”). Skyflow may freely use and exploit Feedback in connection with any of its products or services without any obligation to notify, account for, or compensate Customer.
11.4.Service Data. Notwithstanding anything to the contrary herein, Customer agrees that Skyflow may obtain technical and other data about Customer’s use of the Skyflow Services (“Service Data”), and Skyflow may use and share the Service Data to improve, support, develop, provide and deliver reporting regarding the Skyflow Service during and after the Term of this Agreement, provided that Skyflow does not identify Customer as the source of such Service Data without Customer’s prior written permission.
12.Miscellaneous.
12.1.No Agency. Nothing in this Agreement shall be deemed to create any agency, partnership, joint venture, or employment relationship. Customer accepts and acknowledges that Skyflow is an independent contractor providing Customer with use of the Skyflow Services.
12.2.Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.2 will be null and void.
12.3.Notices. All notices under this Agreement must be in writing and delivered either by hand, certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Customer, to the address identified in this Agreement, if to Skyflow, to Skyflow, Inc., 195 Page Mill Road, #111, Palo Alto, California 94306 USA, Attn: Legal Department. Notices shall be deemed given when delivered by registered post or courier, with return receipt or acknowledgment requested.
12.4.Data Security, Customer Personal Data, and DPA. Skyflow shall take appropriate physical, technical, and administrative security measures designed to secure Customer Data against any unauthorized disclosure in accordance with applicable law or regulation. Without limiting the foregoing, Skyflow will implement security measures that are consistent with industry standards as well as comply with the controls and principles set forth at: https://www.skyflow.com/security.
Skyflow will (a) process Customer Data only to the extent, and in such manner, as is necessary to provide the Services to Customer under and as otherwise set forth in this Agreement and in accordance with Customer’s instructions from time to time; (b) not otherwise process or use the Customer Data; and (c) keep Customer Data logically separate from other data and information that is held by Skyflow. For purposes of clarity, the provisions above apply to all Customer Data, including but not limited to Customer Personal Data, as defined in the Data Processing Addendum (“DPA”). Skyflow shall promptly comply with any request from Customer requiring Skyflow to delete Customer Data. If Skyflow receives any third-party communication relating directly or indirectly to the processing of Customer Personal Data, to the extent legally permitted, Skyflow must promptly notify Customer and must provide reasonable cooperation and assistance to Customer in addressing the communication. Without limiting the generality of the foregoing, Skyflow shall comply with the DPA, which is incorporated herein by reference.
12.5.Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency (“Force Majeure Event”).
12.6.Export Compliance. In its use of the Skyflow Services, Customer agrees to comply with all export and import laws and regulations of the United States, the European Union and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country, (ii) Customer shall not (and shall not permit any of its Users to) access or use the Skyflow Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Skyflow Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
12.7.Government End-Users. Elements of the Skyflow Services are commercial computer software. If the user or licensee of the Skyflow Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Skyflow Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Skyflow Service was developed fully at private expense. All other use is prohibited.
12.8.Anti-Corruption Laws. Customer shall comply with all anti-corruption laws and regulations ("Anti-Corruption Laws") including but not limited to the United States Foreign Corrupt Practices Act ("FCPA") and/or the UK Bribery Act, irrespective of whether Customer is legally subject to it. Customer shall not cause Skyflow to violate the FCPA, the UK Bribery Act or any Anti-Corruption Laws in connection with the activities conducted on behalf of Skyflow under the Agreement or any other activities involving Skyflow (collectively, the "Activities"). Customer shall not, in connection with the Activities, pay, offer, promise, or authorize the payment or transfer of anything of value, directly or indirectly, to any other person or entity for the purpose of improperly obtaining or retaining business, for any other advantage for Skyflow, or for any other purpose prohibited by the FCPA, UK Bribery Act or any Anti-Corruption Laws.
12.9.Publicity. At the request of Skyflow, Customer agrees to co-marketing initiatives. Each party will have the right to approve the activities in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Skyflow Services to other potential customers and to use the Customer's name and logo on Skyflow web site and in Skyflow promotional materials. This consent terminates upon termination of this Agreement.
12.10.Governing Law and Forum Selection. This Agreement is made and will be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law principles. The Parties agree that any dispute arising under this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts of Santa Clara County, California, and the parties agree not to bring an action in any other venue. Customer waives any and all objections to this venue and agrees not to dispute personal jurisdiction or venue in the event of a dispute arising under this Agreement.
12.11.Advice of Legal Counsel. Each Party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.
12.12.Entire Agreement. This Agreement, including all Schedules to this Agreement, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any schedule, the terms and conditions of this Agreement will govern. Any pre-printed terms in a Customer purchase order are null and void. No Party hereto has relied on any statement, representation or promise of any Party or representative thereof except as expressly set forth in this Agreement. Any changes or amendments to this Agreement must be in writing, expressly refer to the changes to this Agreement, and be duly executed by both parties.
12.13.Waiver of Breach. No delay or omission by either party to exercise any right or power arising upon the other party's nonperformance or breach will impair that right or power or be construed as a waiver of it. Any waiver must be in writing and signed by the waiving party. A waiver on one occasion will not be construed as a waiver of any subsequent event of nonperformance or breach.
12.14.Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any Party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.