Skykit Digital Signage and Workplace Solutions

LEGAL

Skykit Master Cloud Services Agreement

THIS SKYKIT MASTER CLOUD SERVICES AGREEMENT (“AGREEMENT”) IS A BINDING AGREEMENT BETWEEN SKYKIT LLC, A MINNESOTA LIMITED LIABILITY COMPANY DOING BUSINESS AT  241 N 5TH AVE #800, MINNEAPOLIS, MN 55401, (“SKYKIT”) AND THE CUSTOMER NAMED ON THE APPLICABLE ORDER (“CUSTOMER”).

THIS SKYKIT AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S ACCESS, LICENSE AND USE OF CERTAIN SERVICES, SKYKIT SOFTWARE, SKYKIT CONTENT AND DOCUMENTATION AND PURCHASE OR USE OF SKYKIT HARDWARE.  BY (1) EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, (2) ELECTRONICALLY ACCEPTING THIS AGREEMENT, OR (3) USING A FREE TRIAL OF THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND SKYKIT’S PRIVACY POLICY (https://www.skykit.com/privacy-policy/). 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 AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM CUSTOMER SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SKYKIT SOFTWARE, SERVICES, SKYKIT CONTENT OR DOCUMENTATION.  SKYKIT’S COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES, EXCEPT WITH SKYKIT’S PRIOR WRITTEN CONSENT.

  1. Definitions
    1. Authorized Users” means Customer’s employees and contractors (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder. 
    2. Confidential Information means the Skykit IP and any and all source code, inventions, know-how, and ideas, trade secrets, updates, any non-public information regarding the business of a party (where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information is, by its nature, intended to be maintained as generally confidential).  For purposes of this Agreement, Confidential Information does not include any information which:  (a) is publicly known at the time of its disclosure; (b) is published or otherwise made known to the public without breach of this Agreement; (c) was generated independently by a party before its receipt from the other party; or (d) is obtained by a party from an unrelated third party not under a duty of confidentiality. The Skykit IP is the Confidential Information of Skykit.  Customer Content is the Confidential Information of Customer, subject to the license rights set forth in Section 7(a).  Confidential Information expressly excludes Excluded Content.  
    3. Customer Content” means the information, data or other content, in any form or medium, that is submitted, posted, inputted or otherwise transmitted by or on behalf of Customer, by an Authorized User or by a provider of Third-Party Content, for the purpose of using the Services or facilitating Customer’s use of the Services.  Customer Content does not include customer account or transactional information.  
    4. Documentation” means Skykit’s user manuals, guides or other documents made available to Customer by Skykit relating to the Skykit Hardware, Services, Skykit Content or Skykit Software.
    5. Fees” means the Subscription fees and any other fees payable by Customer to Skykit for the Services, Skykit Content, Skykit Software, Skykit Hardware or other hardware, devices or services, as stated in an applicable Order.
    6. Force Majeure Event means an act of God, weather conditions, natural disasters, pandemics, dangerous or environmental goods incidents, public enemies, including but not limited to, hackers, quarantine, riots, strikes, work stoppages or slowdowns, or other labor disputes or disturbances, civil commotions or hazards incident to a state of war or terroristic threat or action, local or national disruptions in ground or air transportation networks or systems, passage of law or any action taken by a governmental or public authority or other events beyond Skykit’s reasonable control that prevent Skykit from performing its obligations under this Agreement.
    7. Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
    8. Order” means proposal, statement of work, order form or similar document between Customer and Skykit or Reseller that is accepted by the parties and that describes the goods and services to be provided and the fees to be charged.  The Order may include the Services purchased, Initial Subscription Term, number of Subscriptions purchased, Fees, the version or plan of the Services purchased, support terms or plan, payment terms, Hardware, other services to be provided and other fees to be charged.
    9. Reseller means an entity authorized to sell the Services and Skykit Hardware to Customer and is responsible for managing the end-to-end sales process with Customer. 
    10. Services” means the Skykit software-as-a-service offerings named in the applicable Order, which may include Skykit’s proprietary digital content management and signage services, workplace experience services, and/or device management services or any application running on the Skykit Platform.  Services may include Skykit Content if set forth on the Order
    11. Skykit Content” means the digital content Skykit provides to Customer as part of the Services upon payment of the Fees.  The Skykit Content varies based on the Subscription version or plan selected by Customer, as described on the Order. 
    12. Skykit Hardware” means Skykit’s proprietary digital media player listed on the applicable Order.
    13. Skykit IP” means the Services, Skykit Software, Skykit Content, Documentation, Skykit Hardware and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Skykit IP does not include Customer Content.
    14. Skykit Softwaremeans any tools, objects, programs (both in executable code and source code form and the business processes identified in the documentation surrounding such code), firmware, algorithms, processes, methodologies, instructions, comments, design documentation, scripts, manuals, user guides and other materials related to use of the above, and all modifications, enhancements and derivative works of the foregoing, all as either developed by Skykit or licensed from a third party at any time prior to or during the term of this Agreement, that are useful or necessary in the creation, maintenance, execution, or use of the Services.
    15. Subscriptions” means the number of subscription(s) purchased by Customer pursuant to an Order which entitles Customer to access and use certain Skykit IP.  Subscriptions may be limited by number of displays or other licensing metric set forth in the Order.
    16. Support Services Policy” means Skykit’s policy for providing support in relation to the Services, as more fully described in the Documentation, on the Skykit website or as may be provided to Customer from time to time. The Support Services Policy may vary based on the plan or version of the Services purchased, as described on the Order.
    17. Third-Party Content” or “Third-Party Services” means the digital content, software, services or applications that Customer acquires from third parties and not from Skykit for use with the Services, some of which may be required in order to use the Service.
    18. Virus” means a device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
  2. Access and Use of Services
    1. Provision of Access. Subject to Customer’s purchase of a Subscription to the Services, timely payment of all Fees, and Customer’s compliance with all other terms and conditions of this Agreement, Skykit hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Services and the Skykit Content during the Subscription Term solely by Authorized Users and solely for Customer’s business operations.  This license is limited to the version or plan of the Services specifically named in the Order.  If no version or plan is named in an Order, Customer acknowledges that it is purchasing Subscriptions to the Standard Plan as described at skykit.com/pricing.
    2. License to Skykit Software and Documentation.  Only to the extent necessary to use and access Customer’s Subscriptions to the Services and subject to Customer’s compliance with all other terms and conditions of this Agreement, Skykit grants Customer a non-exclusive, non-transferable, non-sublicensable, limited license to download, install and use the Skykit Software and Documentation during the Subscription Term solely by Authorized Users and solely for Customer’s business operations. 
    3. Subscription Compliance. Customer shall at no time exceed the number of displays or other metrics that measure consumption of the agreed on subscription, or other Subscriptions purchased by Customer under an applicable Order.  If Customer exceeds its usage of the Services, Customer shall pay to Skykit additional fees for such excess use as determined by Skykit.  Skykit may audit Customer’s compliance under this Agreement at any time.  Customer agrees to fully cooperate with such audit and immediately remedy any noncompliance.  
    4. Acceptable Use Policy.  Customer agrees to comply, and shall require its Authorized Users to comply, with Skykit’s Acceptable Use Policy (“AUP”), available at https://skykit.com/aup as may be amended by Skykit from time to time.  In addition, Customer shall not use the Services to access, store, distribute or transmit any Viruses or any digital content or application that violates the AUP. 
    5. Use Restrictions. Customer shall not, except to the extent expressly permitted under this Agreement:  (A) attempt to copy, modify, translate, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Skykit IP; (B) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Skykit IP; (C) use any of the Skykit IP to provide services to third parties; (D) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make any of the Skykit IP available to any third party; (E) attempt to obtain, or assist third parties in obtaining, unauthorized access to any of the Skykit IP; (F) remove any proprietary notices from the Skykit IP; or (G) use the Skykit IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law.
    6. Responsibility for Use.  Customer is responsible and liable for all uses of Customer’s Subscriptions. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and omissions of its Authorized Users. Customer shall use all commercially reasonable efforts to prevent, and is solely responsible for, any unauthorized access to, or use of, the Skykit IP.  In the event of any such unauthorized access or use, Customer shall promptly notify Skykit and remain responsible for any unauthorized access or use of the Skykit IP using Customer’s credentials.
    7. Reservation of Rights.  Skykit reserves all rights not expressly granted to Customer in this Agreement.  Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Skykit IP.
  3. Third Party Services.  Customer acknowledges that access to and use of the Services may require the use of certain Third-Party Services, such as Google G Suite and Microsoft 365.  Skykit may also require the use of certain Third-Party Authentication Services to access the Skykit platform. Customer is required to obtain licenses or access rights from these third parties for some of the functionality of Services to operate. Customer agrees to accept and comply with the terms and conditions applicable to these Third-Party Services.  Skykit does not provide any warranties for any Third-Party Services and is not liable for the operation, performance, or content of any Third-Party Service.  Failure of Customer to follow any Third-Party Content or Third-Party Service providers’ policies, terms and conditions constitutes a material breach of this Agreement. Customer is solely liable for all damages caused by such breach.  In the event of such breach, Skykit may immediately suspend its performance of Services, and such suspension shall not constitute a breach of the Agreement. In the event that any Third-Party Services are discontinued or sunset, Skykit will use its best efforts to assist Customer to transition to alternatives for such Third-Party Services.
  4. Service Levels.  Skykit will use commercially reasonable efforts to make the Services available to Customer on a 24×7, 365 days per year basis.  Skykit shall have no liability to Customer if the Services are unavailable for any of the following reasons:  (A) scheduled or emergency downtime; (B) Skykit’s compliance with laws, regulations or requirements of state or federal governments; (C) acts or omissions of any person or party other than Skykit; (D) degradation, disruption or failure of communication systems, information systems, mechanical systems or utilities, due to events beyond Skykit’s control; (E) any downtime caused by circumstances beyond Skykit’s reasonable control, including but not limited to a Force Majeure Event; (F) Customer’s use of the Services in violation of applicable laws or regulations or any of the terms and conditions of this Agreement, the AUP, or any other terms and conditions applicable to Third-Party Content or Third-Party Services; (G) the Subscription Term has expired; or (H) Customer has downgraded its version or plan and no longer has a Subscription to prior functionality.  
  5. Suspension of the Services.  Skykit reserves the right to suspend Customer’s access to and use of the Services and Skykit Content, with or without prior notice, if: (A) Skykit acts in good faith upon the instructions or directives of a court of competent jurisdiction or law enforcement or in response to a disaster declaration; (B) Skykit properly notified Customer of a material breach of this Agreement or has reasonably determined that Customer is in material breach of this Agreement but has not yet had the reasonable opportunity to notify Customer of such breach; (C) Skykit reasonably determines that Customer has violated the AUP or is using the Skykit IP for fraudulent or illegal activities; (D) there is a threat or attack on any of the Skykit IP or Customer’s or any Authorized User’s use of the Skykit IP disrupts or poses a security risk to the Skykit IP or to any other customer or vendor of Skykit; (E) Customer fails to pay any Fees when due, as set forth below in Section 11(d); or (F) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.  Skykit will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a suspension under this Section 5.
  6. Support.  Skykit will, as part of the Services, provide Customer with support services in accordance with Skykit’s then-current Support Services Policy, which Skykit may amend from time to time.  The Support Services Policy may vary based on the version or plan of the Service purchased, as described on the Order.
  7. Customer Content
    1. Ownership and Display of Customer Content.  Customer’s display of any Customer Content through the Services is at Customer’s own risk.  Customer retains all Intellectual Property Rights in and to Customer Content.  Customer represents and warrants that it has all of the rights, licenses, consents, permissions and releases necessary to use, reproduce, publish, display publicly, perform publicly or distribute or otherwise use the Customer Content and to grant to Skykit all of the license rights granted herein.  For purposes of providing the Services to Customer, Customer grants to Skykit (and its successors, assigns, affiliates and third-party service providers) a world-wide, non-exclusive, irrevocable, royalty-free, fully-paid, sublicensable, and transferable license to use, reproduce, modify, distribute, publish, publicly display, publicly perform and otherwise exploit such Customer Content on and in connection with the Services, all according to Skykit distribution settings selected by Customer.  In addition, Skykit shall be permitted to use and disclose (only to those with a need-to-know and under confidentiality obligations substantially similar to those set forth in Section 12) the Customer Content to provide, monitor, analyze, and improve the Services, including creating aggregated, anonymized analyses and reports of usage patterns, and to enforce the terms and conditions of this Agreement.
    2. Excluded Content.  Customer agrees that neither Customer nor any of its Authorized Users will provide any of the following (in any format) to Skykit or upload any of the following (in any format) in using the Services: any personal health information; biometric information; social security numbers; government identification numbers; credit report information, debit or credit or payment card information; bank or other financial account information or other financial or credit data; any information defined as “sensitive” data under applicable privacy and data protection laws; or any other information or data subject to privacy or data protection laws that Customer or the Authorized User is not legally permitted to provide, or has not obtained valid consent to provide, to Skykit or to upload in using the Services (collectively, “Excluded Content”).  Notwithstanding anything to the contrary in this Agreement, Skykit shall have no obligation or liability under this Agreement or otherwise with respect to Excluded Content.
  8. Customer Obligations
    1. Customer must comply with all applicable laws and regulations relating to its activities as contemplated by this Agreement, including but not limited to all applicable privacy and data protection laws and regulations and any applicable export control laws and regulations.
    2. Customer shall: (A) provide Skykit with all necessary cooperation in relation to this Agreement and all necessary access to such information as may be required by Skykit in order to render the Services, including but not limited to Customer Content, security access information and configuration services; (B) ensure that its network and systems comply with the relevant specifications provided by Skykit from time to time, including but not limited to the prerequisites listed on support.skykit.com, which are required for the Services and Skykit Software to function properly; (C) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Internet and any cloud platform solution used by Customer, and for resolving all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the Internet; (D) be responsible for the physical and network security of its own devices and any devices that may be supplied by Skykit; (E) be responsible for logical access rights to the Customer Content, Skykit Content and to Customer’s own devices and any devices that may be supplied by Skykit; and (F) not install, store or configure any additional data, software or services on any device supplied by Skykit.
    3. Customer is fully responsible for ensuring that the Services are properly set up, installed and operational on the Customer’s hardware and devices, regardless of whether the Customer obtained such hardware or device from Skykit, a Reseller or on its own.  Customer will obtain, set up, install and maintain all hardware and devices in accordance with the requirements set forth at support.skykit.com
  9. Skykit Content; Third Party Content Providers
    1. The Skykit Content presented on or through the Services is made available solely for general informational purposes.  Skykit does not warrant the accuracy, completeness, or usefulness of this information.  Any reliance that Customer or any other person places on such information is strictly at their own risk.  Skykit disclaims all liability and responsibility arising from any reliance placed on such materials by Customer or by anyone who may be informed by the Skykit Content.
    2. Skykit has agreements in place with various third parties to provide Skykit Content to Customer through the Services.  All statements and/or opinions expressed in these materials, and all articles, headlines, weather reports, news and other content are solely the opinions and the responsibility of the person or entity providing those materials.  Such content does not necessarily reflect the opinion of Skykit.  Skykit is not responsible, or liable to Customer or any third party, for the content or accuracy of any materials provided by any third parties.
    3. Customer acknowledges that the Services may enable or assist it to access the digital content and applications of, correspond with, and purchase products and services from, third parties via third-party websites or otherwise and that Customer does so solely at its own risk.  Skykit makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any Third-Party Content provider and their content, websites, or any transactions completed, and any contract entered into by Customer, with any Third-Party Content provider by whatever means.  Any contract entered into and any transaction completed with a Third-Party Content provider via any third-party website or otherwise is between Customer and the relevant Third-Party Content provider and not Skykit.  
  10. Skykit Hardware Shipment and Delivery. Skykit or Skykit’s Authorized Distribution Partners will ship the Skykit Hardware FOB (UCC 2002) from Skykit’s or its Authorized Distributor’s distribution or manufacturing facility. Title to the Skykit Hardware and risk of loss will pass to Customer upon Skykit’s delivery of the Skykit Hardware to the carrier. All delivery dates are estimates only and are not binding.
  11. Proprietary Rights.  Customer acknowledges that Skykit and/or its licensors own all Intellectual Property Rights in the Skykit IP, including but not limited to all updates and/or upgrades thereto and other derivative works thereof and all Intellectual Property Rights incorporated into or related to the foregoing.  All rights not expressly licensed by Skykit under this Agreement are reserved by Skykit. 
  12. Fees and Payments.
    1. Customer shall pay to Skykit (or, if applicable, Reseller) all Fees and expenses set forth on the Order for Services or other services, deliverables, or expenses in accordance with this Section 11 and the payment terms in the Order.  Unless otherwise set forth on the Order or otherwise agreed to in writing with a Reseller, Customer shall pay all Fees for Subscriptions in advance of the Subscription Term; all other Fees shall be due and payable within ten (10) days after Customer’s receipt of an invoice. 
    2. Customer may purchase additional Subscriptions from time to time during any Subscription Term in excess of the number set out on the initial or current Order.  If Customer purchases additional Subscriptions part way through the Initial Subscription Term or any Renewal Period, such Fees may be prorated for the remainder of the applicable period, unless otherwise set forth on an Order.
    3. All amounts and Fees shall be payable in U.S. Dollars, are non-cancellable and nonrefundable and are exclusive of value added tax, sales tax or any other tax, which shall be added to Skykit’s (or, if applicable, Reseller’s) invoice(s) at the appropriate rate.  Skykit and Reseller shall be entitled to increase the Fees during each Renewal Period upon thirty (30) days’ prior notice to Customer.
    4. If Skykit (or, if applicable, Reseller) has not received payment when due, including for any subsequent Renewal Period by the end of the Initial Subscription Term or any Renewal Period, and without prejudice to any other rights and remedies of Skykit and Reseller, Skykit may disable Customer’s password, account and access to all or part of the Services without liability to Customer, and Skykit shall be under no obligation to provide any or all of the Services while the amounts concerned remain unpaid.  If Customer disputes the amount of an invoice in good faith, Customer shall notify Skykit (or, if applicable, Reseller) in writing within ten (10) business days of receipt of such disputed invoice by providing a report setting out the disputed amounts, and the parties shall cooperate to establish the correct Fees within twenty (20) days of such notification.  Skykit or Reseller shall then issue a corrected invoice for the resolved amount, and Customer shall pay the amount of the invoice within thirty (30) days after receipt of such corrected invoice.
  13. Confidentiality
  1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information except as necessary or appropriate in the performance of this Agreement.  Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.  
  2. Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section 12 and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief from any court of competent jurisdiction, in addition to whatever remedies it might have under this Agreement.  The requirement to arbitrate disputes between the parties set forth does not apply to disputes arising under this Section.
  1. Warranty and Disclaimer; Return Policy
    1. Service Warranty.  Skykit warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement and that the Service will be performed substantially in accordance with the Documentation and with reasonable skill and care. 
    2. Skykit Hardware Limited Warranty. Skykit Hardware purchased and sold by Skykit (or approved distributors/resellers) are warranted against defects in materials and workmanship for a warranty period identified per product (see individual Product Limited Warranties posted on Skykit’s website for warranty periods) from the date of purchase (“Warranty Period”) within the United States (for customers outside of the United States, contact Skykit to learn more about your warranty). This warranty does not cover damage due to an act of God, accident, misuse, abuse, negligence or modification of the Skykit Hardware, connection to improper voltage supply,  attempted repair by anyone other than Skykit, or normal depletion of consumable parts (such as batteries). Additional warranty details may be provided to Customer at the time of purchase or posted on Skykit’s website. 
    3. Hardware Returns. If the Skykit Hardware is not working properly and Skykit Support is unable to help troubleshoot the problem, please contact Skykit Support to request a return merchandise authorization (RMA). Once an RMA request is received, Skykit will evaluate the RMA request and approve or deny the request if the Skykit Hardware do not meet any of the warranty exclusions outlined in specified Product’s Limited Warranty policy. For an approved RMA, the Product will be repaired or replaced at no charge. Unless stated otherwise, shipping charges are paid by the customer. Additional details regarding the RMA process can be found on Skykit’s website. THE FOREGOING SETS FORTH SKYKIT’S SOLE OBLIGATION AND CUSTOMER’S EXCLUSIVE REMEDY IN THE EVENT OF ANY BREACH OF THIS LIMITED WARRANTY. To the extent Skykit provides any non-proprietary hardware or devices under an applicable Order, any warranty for such hardware or device, if any, will be stated in the applicable Order or shipped with the hardware or device. 
    4. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SKYKIT SOFTWARE, SERVICES, SKYKIT CONTENT, DOCUMENTATION, SKYKIT HARDWARE AND ANY HARDWARE OR DEVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND.  SKYKIT DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY WARRANTY OR CONDITION ARISING BY USAGE OR TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.  SKYKIT MAKES NO WARRANTY THAT: (A) THE SERVICES, SKYKIT CONTENT, OR SKYKIT HARDWARE WILL MEET CUSTOMER’S REQUIREMENTS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) CUSTOMER CONTENT WILL BE HOSTED AND/OR TRANSMITTED WITHOUT INTERRUPTION OR CESSATION; (D) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SKYKIT SOFTWARE OR THE SERVICES WILL BE CORRECTED; OR (E) THE SKYKIT CONTENT WILL BE ACCURATE, RELIABLE, COMPLETE, USEFUL, ERROR-FREE, OR UNINTERRUPTED.  SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. NO ADVICE, REPRESENTATION, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SKYKIT, RESELLER OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
  2. Indemnity. 
    1. Customer shall defend, indemnify and hold harmless Skykit, Reseller, their affiliated entities, and their respective officers, directors, employees, agents and subcontractors against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) (collectively, “Claims”) arising out of or in connection with (i) Customer’s use of the Skykit Software, Services, Skykit Content, Skykit Hardware, Documentation and any Third-Party Services or Third-Party Content; (ii) the Customer Content and any Excluded Content, including that the Customer Content infringes a third party’s Intellectual Property Right or violates any other rights; or (iii) Customer’s breach of its covenants or obligations under this Agreement or any agreement with a Third-Party Content or Third-Party Service provider, provided that: (A) Customer is given prompt notice of any such Claim; (B) Skykit provides reasonable cooperation to Customer in the defense and settlement of such Claim, at Customer’s sole cost and expense; and (C) Customer is given sole authority to defend or settle the Claim, provided that no settlement or compromise that imposes any liability or obligation on a Skykit indemnitee will be made without Skykit’s prior written consent. 
    2. Subject to Section 14(d), Skykit shall defend Customer, its officers, directors and employees against any Claims arising from or relating to allegations that Customer’s use of the Skykit Software, Services, or Documentation in accordance with this Agreement infringes a U.S. Intellectual Property Right effective as of the effective date of this Agreement, and shall indemnify Customer for any amounts awarded against Customer in judgment or settlement of such Claims, including reasonable attorneys’ fees, provided that: (A) Skykit is given prompt notice of any such Claim; (B) Customer provides reasonable cooperation to Skykit in the defense and settlement of such Claim, at Skykit’s sole cost and expense; and (C) Skykit is given sole authority to defend or settle the Claim.
    3. In the defense or settlement of any claim, Skykit may procure the right for Customer to continue using the Skykit Software, Services or Documentation, replace or modify the Skykit Software, Service or Documentation so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two (2) business days’ notice to Customer without any additional liability or obligation to pay liquidated damages or other additional costs to Customer. The foregoing states Customer’s sole and exclusive rights and remedies, and Skykit’s, its affiliated entities, and their respective employees, agents and subcontractors entire obligations and liability, for infringement of any Intellectual Property Rights.
    4. In no event shall Skykit, Reseller, their affiliated entities, or their respective officers, directors, employees, agents and subcontractors be liable to Customer to the extent that the alleged infringement is based on: (A) modification of the Skykit Software, Services, or Documentation by anyone other than Skykit; (B) Customer’s use of the Skykit Software, Services, or Documentation in a manner contrary to the instructions given to Customer by Skykit; (C) Customer’s use of the Skykit Software, Services, or Documentation after notice of the alleged or actual infringement from Skykit or any third party; (D) Customer’s display of content or applications that violate any federal or state law, statute or statutory provision; or (E) any combination, operation or use of the Skykit Software, Services, or Documentation with systems, software or other resources not provided by Skykit.
  3. LIMITATION OF LIABILITY. NEITHER SKYKIT, ANY SKYKIT AFFILIATE NOR RESELLER SHALL BE LIABLE WHETHER IN TORT (INCLUDING NEGLIGENCE OR BREACH OF A STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SKYKIT’S, SKYKIT’S AFFILIATES’ AND RESELLER’S MAXIMUM AGGREGATE LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM OR LIABILITY FIRST AROSE.
  1. Term and Termination; Downgrades; Effect of Termination
    1. Term and Renewal.  This Agreement shall commence on the date the initial Order is signed or the date this Agreement is electronically accepted by Customer (whichever is first) and continue for the initial subscription term set forth in the Order (“Initial Subscription Term”); thereafter, this Agreement shall automatically renew at the then-current price for Skykit for the same duration as the Initial Subscription Term (“Renewal Period”), unless: (A) for Subscription terms of one year or more, either party notifies the other party of termination, in writing, at least ninety (90) days before the end of the Initial Subscription Term or any Renewal Period, or (B) for monthly Subscriptions (if available), either party notifies the other party of termination, in writing, at least thirty (30) business days prior to the end of the Initial Subscription Term or any Renewal Period; or (C) Customer timely makes the Subscription termination online through Skykit’s website or through the Service (if either option are available); or (D) this Agreement is terminated in accordance with its provisions.  The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term.”
    2. Termination.  Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if: (A) the other party commits a material breach of this Agreement and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; (B) an order of a court of competent jurisdiction is made or a resolution is passed for the winding down of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-down order in relation to the other party; (C) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or (D) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way.
    3. Subscription Upgrade and Downgrade.  Customer may elect to upgrade or downgrade its version or plan of the Service by providing Skykit with written notice as follows: (A) for Subscription terms of one year or more, at least ninety (90) days before the end of the Initial Subscription Term or any Renewal Period, or (B) for monthly Subscriptions (if available), at least three (3) business days prior to the end of the Initial Subscription Term or any Renewal Period or (C) if available, through the process provided online through Skykit.  In the event Customer downgrades its version or plan, Customer acknowledges that features, functionality, reports and data previously available to Customer under the prior version or plan will no longer be available after the effective date of the downgrade.
    4. Effect of Termination. Upon termination of this Agreement for any reason, all access rights, usage rights and licenses granted under this Agreement by Skykit shall immediately terminate, and Customer shall cease using and destroy all copies of the Services, Skykit Software, Skykit Content and Documentation.  No expiration or termination shall affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.  Sections 1, 3, 7, 8(a), 9, 10, 11, 12, 13, 14, 15, 16(d), 17, 18, 19 and 21 shall survive any expiration or termination of this Agreement.
    5. Effect of a Downgrade. Customer is responsible for extracting or downloading any Customer Content, proof of play or other reports and any other Customer content or data stored in the Services prior to termination of this Agreement or downgrading of the Subscription version or plan.  Upon termination, Skykit shall have no obligation to maintain and is permitted to permanently erase all such Customer Content, proof of play reports and any other Customer content or data in Skykit’s possession or control.  Upon a downgrade, Skykit shall have no obligation to make available any previously available data or reports if access to such data or reports is not part of the downgraded version’s or plan’s functionality. 
  2. Governing Law; Arbitration; Jurisdiction.  This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of the State of Minnesota, regardless of choice of law principles of Minnesota or any other state.  The parties agree to exclusively use final, binding arbitration to resolve any claims arising under or related to this Agreement, regardless of the legal theories upon which such claims are based.  The parties irrevocably waive the right to resolve any claims arising under or related to this Agreement in any other forum or to demand trial by jury.  Any arbitration shall follow the American Arbitration Association Commercial Arbitration Rules and shall occur in Minneapolis, Minnesota.  Judgment of award rendered in any arbitration may be entered in any court having jurisdiction.
  3. Notices.  All notices between the parties regarding the Service must be in writing and will be deemed received three (3) business days beyond the date of deposit into the United States Postal Service, or upon written confirmation of receipt of an electronic communication.  The parties may act upon any directive, order or request in an electronic communication from and between their authorized representatives. All notices to Skykit shall be sent to Skykit, Attn: Legal, 241 N 5th Ave #800, Minneapolis, MN 55401 
  4. Assignment.  Customer shall not, without the prior written consent of Skykit, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.  Any purported assignment or delegation in violation of this Section will be null and void.  No assignment or delegation will relieve Customer of any of its obligations hereunder.  Skykit may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.  This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
  5. Force Majeure. In no event shall Skykit be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any Force Majeure Event. 
  6. Entire Agreement.  This Agreement, all Orders executed hereunder, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding, or agreement between them relating to the subject matter they cover.  Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether a party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

 

THIS AGREEMENT WAS LAST UPDATED ON OCTOBER 7, 2020.