Term of Service
Welcome to Skycore (“Skycore”, “we”, “our” or “us”). These Terms of Service (the “Terms of Service” and/or “Terms”) contain the legal terms and conditions that govern your use of and access to www.skycore.com and any related sites (the “Site”) and our Software, Documentation, and Content (all as defined below and collectively, the “Services”). Please review these Terms of Service carefully before using the Services.
If you have entered into a separate Work Order, Service Order, or Master Services Agreement with us for specific services, then the terms of that agreement controls if it conflicts with these Terms.
If you received a message from a Customer of Skycore or viewed content hosted by Skycore on behalf of our Customer, your use of this Service is governed by our Mobile Terms https://www.skycore.com/mobile-terms/
“Customer Users” means the individual user(s) authorized by the Customer to access and use the Service on Customer’s behalf.
“Customer End Users” An end user is any recipient of communications or content from a Customer using the Services.
“Customer Data” means electronic data and information uploaded, submitted or otherwise transmitted to or through the Service or Software.
“Documentation” means installation guides and other documentation related to the Service made available to Customer by Skycore.
“Fees” means the setup fees, subscription fees, transaction fees and any other fees to be paid by Customer described in an Order Form or in the Site.
“Notification” shall mean any communication with Customer End Users made by or for Customer End User via the Service. “Notification(s)” include communications distributed via SMS, MMS, Push, Email, and Passes.
“Pass(es)” means one or more digital passes (e.g., movie tickets, coupons, loyalty reward vouchers, boarding passes, membership cards, etc.) owned or controlled by Customer and made available to End Users.
“Paid Plan” means a recurring schedule of Fees to use the Services for the Term.
“Prohibited Data” means: (a) government issued ID numbers such as passport numbers, taxpayer numbers, driver’s license numbers, (b) individual medical or health information (including without limitation, protected health information under HIPAA), (c) individual financial information or account numbers (including without limitation, credit or debit card numbers or bank account numbers), (d) security codes or passwords (other than passwords for Customer’s account on the Service), or (e) “special categories of personal data” under the EU General Data Protection Regulation) or similar information under other comparable laws or regulations.
“Order Form” means the mutually executed purchasing documents entered into by the parties.
“Service(s)” means the software-based communication technology described in an Order Form or on our Site provided by Skycore. “Service” includes the ___________ web application(s), the ______________ web application(s), the _______________Library, the _______________Library, but excludes Third Party Applications.
“Software” means any software, including the Web Services, Web Applications, Server Programs, Code Libraries, Mobile Applications and SDK’s that we may license to Customer in connection with the Service.
“Term” means the period of time during which we permit the Customer to access a Service and Software as specified in an Order Form or in the Site and any subsequent paid renewal, as set forth in this Agreement.
“Third Party Applications” means third party Web-based or offline software applications, operating systems (such as iOS or Android), platforms, networks, certificates or devices that interoperate with the Service. For purposes of clarity, Third Party Applications do not include any subcontractors or OEM providers of Skycore.
“Free Trial” means a free trial account for a product or service.
Use of the Service
2.1 Service License. Subject to compliance with the terms and conditions of this Agreement, Skycore grants to Customer a limited, non-exclusive, non-transferable license during the Term to access and use the Service for its own business purposes. Customer may not sublicense their license.
2.2 Software License. If Skycore provides Customer with access to Software for use in connection with the Service, Skycore hereby grants to Customer a non-exclusive, non-transferable license to use the Software during the applicable Term in accordance with this Agreement and the Documentation.Customer may not sublicense their license.
2.3 Use. Skycore may require Customer and Customer Users to create a user account, including an email address and password to login. Customer and Customer Users are responsible for maintaining the confidentiality and security of their password and API Key. Customer is responsible for all acts and omissions of each individual Customer User that Customer permits to use the Service.
2.4. Usage Restrictions. Customer will not: (i) use the Service except as permitted hereunder; (ii) decompile, disassemble or reverse engineer any software underlying the Service; (iii) host, sell, resell, rent, exploit or lease the Service or any portion of the Service except as contemplated herein; (iv) remove any copyright notices contained in the Service or place any third party’s trademarks on the Service; (v) attempt to obtain the Service with intent to avoid paying the Fees; (vi) circumvent or modify any security technologies included as part of the Service (vii) use the Service to access, alter or destroy any information of another customer of ours by any malicious means or device; (viii) use the Service to introduce a virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of another party’s computer, property or information; (ix) use the Service intending to damage, disable, overburden or impair any server or network(s) connected to any of our servers; (x) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service; (xi) use the Service to defraud, defame, abuse, harass, stalk, threaten or infringe the rights of privacy or other intellectual property (including copyright) of others or otherwise violate any applicable law. You will prevent unauthorized use of the Services by your Customer users and terminate any unauthorized use of or access to the Services. You will promptly notify us of any unauthorized use of or access to the Services. Skycore shall have the right (but not the obligation) in its reasonable discretion to refuse to transmit or remove any Customer Data that violates any of the terms of this Agreement, the Acceptable Use Policy or any Applicable Law. Notwithstanding the foregoing, Skycore has no obligation to review Customer Data or any Notification content. Your or any Account User’s use of the Service that in Skycore’s reasonable judgment threatens the security, stability, integrity or availability of the Service or otherwise harms other customers or third parties, may result in immediate suspension and/or termination of the Service. Skycore will have no liability for any such suspension or termination made in good faith.
2.5 Availability of the Services. We may choose to update modify or discontinue portions of our Services as our business evolves. Certain portions of the Services may not be available in your country or language. It is your responsibility to make sure your use of the Services is legal in the country where you reside. If you are using the Services in a manner that violates laws, creates an excessive burden or potential adverse impact on our systems we may suspend your access to the Services.
2.6 Your Account. In using for the Services, you agree to (1) provide true, accurate, current and complete information about yourself in your account “Account Data” and (2) maintain and promptly update the Account Data to keep it true, accurate, current and complete. You represent that you are not a person barred from using the Site under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree not to create an account using a false identity or information. You agree not to create an account or use the Site if you have been previously removed by us, or if you have been previously banned from any of the Site. It is your responsibility to safeguard the login and password that you use to access the Services and you agree not to share your login and password with any third party, including not sharing your login amongst two or more users. You are responsible for any activity originating from your account, regardless of whether such activity is authorized by you. You should notify us immediately of any unauthorized use of your account. Our responsibilities do not extend to your internal management or administration of the Services.
2.6.1 Free Trials & On-boarding Accounts. Any free trial that provides you with access to Services without payment must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of such Service is prohibited without paying applicable Fees.
Customer Data; Security
3.1 Customer Data. Subject to the terms of this Agreement, Customer hereby grants to Skycore a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit and create derivative works of the Customer Data, in each case solely to the extent necessary to provide the applicable Service to Customer. Skycore may also access Customer’s account in order to respond to Customer’s support requests. Customer and Skycore will work together in good faith as necessary to comply with any changes or updates to applicable laws. The parties acknowledge that Customer is the “data controller” and Skycore its “data processor” in respect of any “personal data” which is “processed” as part of the Service. Skycore reserves the right to transfer Customer Data to the United States for processing in connection with its provision of the Service. Skycore shall process Customer Data via the Service on behalf of Customer only in accordance with the terms of this Agreement and as necessary to provide the Service.
3.2 Security. Skycore shall encrypt the transmission of Customer Data to and from servers controlled by Skycore. The Service includes administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data as further described in the Documentation. Nothing in this Agreement will constitute a representation or warranty by Skycore that Customer Data storage or transmission will be inaccessible to unauthorized third parties. Liability for Skycore’s failure to maintain or protect Customer Data is limited by Section 10 (Limitation of Liability).
3.3 Rights in Customer Data. Customer represents and warrants that it has the rights and licenses necessary to grant the license in Section 3.1 and to otherwise provide Customer Data to Skycore in connection with Customer’s use of the Service and that by providing its Customer Data it will not violate any intellectual property or privacy rights of third parties, confidential relationships, contractual obligations or applicable laws. Without limiting the generality of the foregoing, Customer shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any personally identifiable information of such data subjects via the Service by Skycore and/or Customer. Customer shall be solely responsible for ensuring that any processing of Customer Data by Skycore and/or Customer via the Service does not violate any applicable laws. Skycore shall not be liable to the extent that the Customer processes data through, or submits data to, the Service in breach of this Section 3.3.
3.4 Data Protection Addendum. If you are a paying Customer to the Service, to the extent that we process any Personal Information (as defined in the DPA) contained in Customer Data that is subject to the GDPR (as defined in the DPA), on your behalf, in the provision of the Service, the terms of the data processing addendum at https://www.skycore.com/terms/dpa/ (“DPA”), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA, when you are the data exporter, your agreeing to these Terms of Service shall be treated as signing of the DPA, including, without limitation, the Standard Contractual Clauses and their Appendices.
4.1 Support. We will make support available to Customer under their Paid Plan as specified on the Order Form or on the Site. We will make applicable updates, corrections, bug fixes, modifications, improvements, additions, upgrades as needed in performance of the Services.
5.1 Fees. Except as otherwise specified herein or in an Order Form, (i) Fees are quoted and payable in the United States Dollars, (ii) Fees are based on Paid Plan subscriptions plus actual usage, and (iii) payment obligations are non-cancelable and Fees paid are non-refundable.
5.2 Taxes. Unless otherwise stated in the Order Form, our Fees and pricing do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). The customer is responsible for paying all Taxes associated with this Agreement.
5.3 Invoicing and Payment. We will invoice the Customer in advance and in accordance with the applicable Order Form. Unless otherwise stated in an Order Form, invoiced charges will be paid no more than 30 days after the date of the electronic delivery of an invoice. The customer is responsible for maintaining complete and accurate billing and contact information with us.
5.4 Failure to Pay. Customer’s failure to pay any Fees when due is a material breach of this Agreement for which we may provide notice of breach and terminate the Agreement in accordance with Section 11.4. Upon termination, all amounts due for the entire Term will be due. Without limitation of its other rights, we may suspend the Service for failure to pay any Fees when due. The customer will continue to be charged all applicable fees for the Service during any period of suspension.
5.5 Overdue Charges. Any Fees not paid when due will accrue interest at the rate of 12% per annum (or 1.0% per month), or the maximum rate permitted by law, whichever is higher.
6.1 “Confidential Information” means all confidential information in oral, written, graphic, electronic or other forms including, but not limited to, past, present, and future business, financial and commercial information, business concepts, prices, and pricing methods, marketing and customer information, financial forecasts and projections, technical data and information, formula, analyses, trade secrets, ideas, inventions, discoveries, methods, processes, know-how, computer programs, source code, products, equipment, product road maps, prototypes, samples, designs, datasheets, schematics, configurations, specifications, techniques, drawings, and any other data or information disclosed, whether orally, visually or in writing. Unless falling into one of the exceptions below, Customer Data is the Confidential Information of Customer. Unless falling into one of the exceptions below, the Software underlying the Service is the Confidential Information of Skycore. Confidential Information does not include data or information which (i) was in the public domain at the time it was disclosed or falls within the public domain, except through the fault of the receiving party; (ii) was known to the receiving party at the time of disclosure without an obligation of confidentiality, as demonstrated by competent evidence; (iii) is disclosed after written approval of the disclosing party; (iv) becomes known to the receiving party from a source other than the disclosing party without an obligation of confidentiality; or (v) is developed by the receiving party independently of the disclosing party’s confidential information as demonstrated by competent evidence.
6.2 Neither party will: (i) disclose the other party’s Confidential Information to a third party or (ii) use the Confidential Information for any purpose other than as indicated in this Agreement without the disclosing party’s prior written approval. The receiving party agrees to notify the disclosing party promptly of any unauthorized disclosure of Confidential Information and to assist the receiving party in remedying any such unauthorized disclosure.
6.3 Except as set forth herein, each party will protect the other party’s Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which the party uses to protect its own information of similar character, and neither party will use the Confidential Information for any purpose not described herein or disclose the other party’s Confidential Information without first obtaining the written consent of the disclosing party. All Confidential Information disclosed hereunder will remain the sole property of the disclosing party and the receiving party will have no interest in or rights with respect thereto except as expressly set forth in this Agreement. Neither party will reverse engineer, decompile or otherwise attempt to discover the source code version of any software included in Confidential Information. The obligation of confidentiality will survive termination of this Agreement.
6.4 Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (i) to any consultant, contractor, advisor or counsel who has a legitimate reason to know in connection with this Agreement and has executed a protective non-disclosure agreement with the receiving party or (ii) by operation of law, or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under this Agreement; provided, the receiving party shall, unless legally prohibited, provide the other party with reasonable prior written notice sufficient to permit the other party an opportunity to contest such disclosure. If a party commits or threatens to commit, a breach of its confidentiality obligations, the other party shall have the right to seek injunctive relief from a court of competent jurisdiction.
7.1 Ownership of Customer Data. Customer retains all right, title, and interest (including all intellectual property rights and other rights) in and to the Customer Data. Skycore does not claim any ownership rights to any Customer Data.
7.2 Skycore Ownership. As between Skycore and Customer, Skycore retains all right, title, and interest (including all intellectual property rights and other rights) in and to the Service, including any updates made during the term. Customer does not acquire any other rights, express or implied, in the Service or Software other than those rights expressly granted under this Agreement.
Limited Warranty & Disclaimer
8.1 Authority. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement. Each party warrants that it will comply with all applicable laws and regulations in providing and using the Service.
8.2 Paid Account Limited Warranty. For Paid Accounts, Skycore warrants that the Service, when used in accordance with the Documentation and when used as authorized herein, will perform in accordance with the Documentation during the Term.
8.3 Free Trial Account Limited Warranty. For Free Trial Accounts, The Service is Available “AS-IS” AND WITHOUT WARRANTY. We make no warranty or condition that the Services will meet your requirements or be uninterrupted, timely, secure, or error-free. We make no warranty or condition that results obtained from your use of the Services will be accurate or reliable or that any errors in the Services will be corrected. We will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of the Services. No advice or information, whether oral or written, obtained by you in connection with your use of the Services shall create any warranty not expressly stated in these Terms.
8.4 Remedy. Skycore’s sole obligation and Customer’s exclusive remedy for any breach of the above warranty is limited to Skycore’s reasonable commercial efforts to correct the non-conforming Service at no additional charge to the Customer. In the event that Skycore is unable to correct a non-conforming Service, the Customer may terminate this Agreement and receive a refund of all pre-paid, unused fees. Skycore’s obligations hereunder for breach of warranty are conditioned upon Customer notifying Skycore of such breach in writing and providing Skycore with sufficient evidence of such non-conformity to enable Skycore to reproduce and/or verify the same. THE FOREGOING REMEDY IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF A BREACH OF THE LIMITED WARRANTY ABOVE.
8.5 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTY MADE ABOVE, THE SERVICE AND ALL RELATED SOFTWARE, DOCUMENTATION AND OTHER INFORMATION AND MATERIALS ARE PROVIDED AS-IS AND AS-AVAILABLE AND SKYCORE DISCLAIMS AND MAKES NO ADDITIONAL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING. THE SERVICE IS NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, SKYCORE MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THEREFROM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON CERTAIN APPLICABLE STATUTORY RIGHTS, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO THE CUSTOMER.
9.1 Indemnification Obligations.
9.1.1 Skycore will indemnify and defend Customers and their officers, directors, and employees from any third party claim, suit, or proceeding brought against such a party to the extent that it is based on a claim that Customer’s use of the Service in accordance with the terms of this Agreement infringes any United States patent or copyright “Customer Claim”, provided that: (i) We are promptly notified in writing of the Customer Claim, (ii) the indemnified party provides reasonable assistance with such Customer Claim, (iii) we are accorded the right to have sole discretion to direct the defense and any negotiations or settlement of such Customer Claim, and (iv) Customer does not admit fault or liability of us or of itself. We shall have met the obligations of this Section 9 by paying for the costs to litigate a Customer Claim to the conclusion and paying the final judgment awarded to the third party claimant, or by paying to settle the Customer Claim. Should a Service become, or in our opinion likely to become, the subject of any such claim of infringement, then Customer will permit us, at our option and expense, to (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service so that the use becomes non-infringing; or (c) terminate the Service and refund to Customer any fees paid to us in advance that Customer has not used as of the date of termination. The indemnification obligations set forth in this Section are our sole and exclusive obligations, and Customer sole and exclusive remedies with respect to infringement or misappropriation of third party intellectual property rights of any kind. The above defense and indemnification obligations do not apply to the extent a Claim arises from or relates to Customer Data, Prohibited Customer Data, a Third Party Application, Notifications, Customer’s or any Account User’s breach of this Agreement, any modifications of the Service by or for Customer, or failure to timely implement any modifications, upgrades, replacements or enhancements made available by Skycore to You at no additional cost.
9.1.2 Our Indemnification Obligations above will not apply to any claim to the extent it arises from (i) any matter for which Customer is obligated to indemnify Skycore pursuant to Section 9.2; (ii) the Service being modified by Customer or a third party; (iii) the use, operation or combination of the Service with programs, data, equipment or materials not provided by Skycore, if the claim would have been avoided by using it without such programs, data, equipment or materials; (iv) in the case of a third party patent claim, compliance by Skycore with designs, plans or specifications furnished by Customer; (v) Customer continuation of the allegedly infringing activity after being notified of the alleged infringement claim; (vi) Customer was on a free trial plan during the alleged infringement.
9.2 Customer Indemnification Obligations. Customer will indemnify, defend and hold Skycore, its parents, subsidiaries, affiliates, officers, agents, employees, resellers or other partners and licensors harmless from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising from or relating to (i) the misuse of the Service by Customer, or misuse of the Service by individuals acting on Customer’s behalf, or (ii) the timing, frequency, or content of Notifications, or (iii) the use of Customer Data or Prohibited Customer Data, including but not limited to, allegations that processing of Notifications or Customer Data by Skycore or Customer under this Agreement infringes the privacy or intellectual property rights of a third party or violates any applicable law or regulation each a “Vendor Claim” provided that: (a) Customer is promptly notified in writing of a Vendor Claim, (b) the indemnified party provides reasonable assistance with such Vendor Claim, and (c) Customer is accorded the right to have sole discretion to direct the defense and any negotiations or settlement of such Vendor Claim.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SKYCORE, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT SKYCORE HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE AGGREGATE LIABILITY OF SKYCORE, ITS AFFILIATES AND THEIR EMPLOYEES AND DIRECTORS TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATING TO THE SERVICE OR RELATED SOFTWARE, DOCUMENTATION, INFORMATION OR MATERIALS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS OF FEES THE CUSTOMER PAID TO SKYCORE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY. THE FOREGOING AGGREGATE LIABILITY LIMITATION WILL NOT APPLY TO CLAIMS OF BREACH OF SECTIONS 3 (SECURITY; CUSTOMER DATA) OR SECTION 6 (CONFIDENTIALITY) OR CLAIMS OF INDEMNIFICATION MADE UNDER SECTION 9 (INDEMNIFICATION) FOR WHICH THE AGGREGATE LIABILITY IS CAPPED AT THREE TIMES THE FEES PAID IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SKYCORE AND YOU.
11.1 Term of the Agreement. This Agreement will remain in effect until all Terms, including the initial term specified in an Order Form and any subsequent paid renewals of the Term have expired, unless terminated by a party sooner in accordance with this Agreement.
11.2 Term; Renewal. Upon expiration of the Initial Term, unless otherwise stated on the applicable Order Form, the Service will automatically renew for additional consecutive terms of one (1) month each, unless and until either party gives the other party notice of non-renewal at least three (3) days prior to the end of the then-current Term.
11.3 Pricing. The pricing under this Agreement is subject to change at the end of each monthly Term or with sixty (60) days’ notice to Customer under an annual Term. Should such pricing changes be unacceptable to the Customer within thirty (30) days of written notice thereof, Customer may terminate this Agreement subject to the provisions herein.
11.4 Termination. Either party may terminate this Agreement for any reason, or no reason provided that there is no Term or any subsequent renewal of the Initial Term then in effect. Either party may terminate this Agreement by written notice to the other party in the event that: (i) the other party materially breaches this Agreement and does not cure such breach within thirty (30) days after written notice thereof; or (ii) a party makes a general assignment for the benefit of creditors, is adjudicated as bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, wherein any of the above, the other party may terminate this Agreement immediately upon written notice to the other party. Upon termination, the rights and licenses granted to Customer hereunder will terminate immediately and the Customer will pay any Fees then due, including Fees remaining for the full Term.
Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service and Software. Termination of all Services also includes the deletion of your confidential information, files, and data associated with or inside your account, including your Data. Upon termination of any Service, your right to use such Service and Software will automatically terminate immediately. You understand that we will not have any liability whatsoever to you for any suspension or termination, including for the deletion of your Data.
11.5 Survival. The following Sections will survive termination or expiration of this Agreement: 1 (Definitions); 3.3 (Rights in Customer Data); 5.6 (Overdue Charges); 6 (Confidentiality); 7 (Ownership); 8.5 (Warranty Disclaimer); 9 (Indemnification); 10 (Limitation of Liability); 11.5 (Survival); and 12 (General).
12.1 Controlling Law. This Agreement and any disputes arising out of or related thereto will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Either party may seek injunctive or other emergency relief in any competent court.
12.2 Assignment. Customer may assign this Agreement in its entirety to a surviving person or entity under a merger or acquisition of Customer, upon written notice to Skycore. We may assign this Agreement to its parent or affiliate or a surviving person under a merger or acquisition of Skycore or the assets of the business to which this Agreement relates, upon written notice to Customer. Except as provided in this Section 12.2, Customer may not assign, voluntarily, by operation of law or otherwise, any rights or obligations under this Agreement without our prior written consent.
12.3 Severability. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12.4 Notices. Any notice under this Agreement must be given in writing. Either party may provide notice to the other via email to a designated contact address. Either party notices to the other will be deemed given upon the first business day after it sends the notice. The communications between you and we use electronic means. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
12.5 Language. English is the language of this Agreement, and all communications and proceedings must be conducted in English. If this Agreement is translated, then the English language version will control.
12.6 Force Majeure. Neither party will be responsible for any failure to perform or delay in performing any of its obligations under this Agreement where and to the extent that such failure or delay results directly or indirectly from an event beyond such party’s reasonable control.
12.7 Injunctive Relief. Each party acknowledges and agrees that a breach or threatened breach of any covenant contained in this Agreement may cause irreparable injury, that money damages may be an inadequate remedy, and that each party will be entitled to seek temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain the other party from such breach or threatened breach. Nothing in this Section will be construed as preventing a party from pursuing any and all remedies available to it, including the recovery of money damages.
12.8 Independent Contractors. The parties are independent contractors under this Agreement and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Nothing in this Agreement is intended to constitute a fiduciary relationship, agency, joint venture, partnership or trust between the parties. No party has the authority to bind the other party.
12.9 Export. Customer will not and will not allow any third-party to remove or export from the U.S. or allow the export or re-export of any part of the Service or any direct product thereof: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan or Syria (to the extent the U.S. government or any agency thereof restricts export or re-export to such countries); (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any U.S. or foreign agency or authority. The customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
12.10 Changes to the Agreement. We may modify this Agreement from time to time provided that If a modification materially impacts this Agreement, We will use reasonable efforts to notify you. If we modify this Agreement during the Customer’s then-current Term, the modified version will only be effective upon the Customer’s next renewal of a Term. If Customer objects to the updated Agreement, as Customer’s exclusive remedy, Customer may choose not to renew, including canceling any Term set to auto-renew.
12.11 Entire Agreement. This Agreement together with any Order Form constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order (other than the bill to, ship to, and pricing) or any other related documentation submitted by or on behalf of Customer to us will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. Any failure to enforce any provision of this Agreement will not constitute a waiver thereof or of any other provision.
Skycore LLC will respond to allegations of copyright violations in accordance with the Digital Millennium Copyright Act (DMCA). The DMCA provides a process for a copyright owner to give notification to an online service provider concerning alleged copyright infringement. When a valid DMCA notification is received, the service provider responds under this process by taking down the offending content. On taking down content under the DMCA, we will take reasonable steps to contact the owner of the removed content so that a counter-notification may be filed. On receiving a valid counter-notification, we generally restore the content in question, unless we receive notice that a legal action has been filed seeking a court order to restrain the allegedly infringing activity.
To File a Notification
A written notification must be made and signed. The notification must:
- Identify in detail the copyrighted work that you believe has been infringed upon in the site (i.e., describe the work that you own). You may attach supporting material to assist locating and identifying the content.
- Identify the item on the site that you claim is infringing on your copyright, and provide information reasonably sufficient to locate the item.
- Provide your name, phone number, physical address and email.
- Include the following statement: “The use of the copyrighted materials described above and contained on the service is not authorized by the copyright owner, its agent, or by protection of law.”
- Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
- Sign the paper
Please note: You may be liable for damages if you falsely claim that a piece of content is infringing your copyrights
To file a counter-notification
- List the content items that were removed by the site administrators, and the location at which the material appeared before it was removed. Please identify the object in sufficient detail so we know exactly which file it is.
- Provide your name, address, telephone number, email address.
- State that you consent to the jurisdiction of the US Federal District Court in the judicial district where you reside (or Boston, Massachusetts if your address is outside of the United States).
- State that you will accept service of process from the person who provided notification to us of the alleged infringement or an agent of such person.
- State the following: “I swear, under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
- Sign the paper.
DMCA Designated Copyright Agent
Send the written document to Skycore LLC:
Attn: Designated Copyright Agent
397 Moody Street, Suite 202
Waltham, MA 02453
Alternatively, scan the document and email it to firstname.lastname@example.org.