These Terms and Conditions (“Terms, and together with the any Statements of Work, and Documentation, collectively, the “Agreement”) is between Skyword, Inc. (“Skyword”), and the entity which has accepted the Agreement through a document which references this agreement (“Client”). Capitalized terms not defined elsewhere in the Agreement shall have the meaning given to them in Section 1 (Definitions) below. The Agreement sets forth the terms and conditions that govern orders placed under the Agreement.
1. Definitions.
“Accelerator360 Service” means, collectively, Skyword’s Accelerator360 online business application suite (and any optionally procured modules) that is procured by Client from Skyword in the SOW and any subsequent SOW from time to time, including associated offline components, but excluding Skyword360 Service, Third Party Applications, Support Services and Additional Services.
“Additional Services” means any services, other than the Accelerator360 Service, to be provided by Skyword to Client under a Statement of Work.
“Confidential Information” means all non-public, confidential, or proprietary information of a party hereto, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to CLIENTs, pricing, and marketing disclosed by one party to the other, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by the receiving party without the prior written consent of the disclosing party.
“Client Data” means all electronic data or information submitted to and stored in the Services by Users. “Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Services.
“Deliverables” means all materials set forth in an SOW and delivered to Client.
“Documentation” means, collectively, our Privacy Policy, the User Guides, and any other Skyword documents that are referenced in, or incorporated into, Client’s SOW.
“Help Documentation” means the online English language help center documentation describing the Services features, which may be updated from time to time.
“Intellectual Property Rights” means copyrights, patents, trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, and derivative works thereof.
“Open-Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
“Privacy Policy” means Skyword’s privacy policy located at https://www.skyword.com/privacy-policy/, as amended.
“Services” means the applicable Accelerator360 Service, Skyword360 Service, Support Services, and Additional Services.
“Skyword360 Service” means, collectively, Skyword’s Skyword360 online business application suite (and any optionally procured modules) that is procured by Client from Skyword in the SOW and any subsequent SOW from time to time, including associated offline components, but excluding Accelerator360 Service, Third Party Applications, Support Services and Additional Services.
“Statement of Work” or “SOW” means a separate statement of work between Skyword and Client that details the Additional Services or Support Services to be delivered by Skyword.
“Support Services” means the supplemental, technical support services to be provided to Client pursuant to the terms hereof. Support Services may be subject to additional Fees (as defined below).
“Third Party Applications” means applications, integrations, services, or implementation, customization and other consulting services related thereto, or Open-Source Software, provided by a party other than Skyword, as further described in the section below entitled “Third Party Applications” that interoperate with the Services.
“User Guides” mean the online English language user guides for the Services, accessible via the Services.
“Users” means individuals who are authorized by Client to use the Services pursuant to the Agreement or as otherwise defined, restricted or limited in an SOW or amendment to the Agreement. Users may include but are not limited to Client’s and Client’s affiliates’ employees, consultants, contractors and agents.
2. Use of Services and Acquiring Services.
2.1 Use of Services. Subject to the terms and conditions of the Agreement, Client shall have a limited, non-exclusive, non-transferrable, worldwide, right for its Users to access and use the Services, solely for the internal business operations of Client. Client may allow its Users to use the Services for this purpose, and Client is responsible for their compliance with the Agreement. The terms of the Agreement shall also apply to updates and upgrades subsequently provided by Skyword to Client for the Services.
2.2 Acquisition of Services. The Services shall be ordered by Client pursuant to an SOW. Each SOW shall include at a minimum a listing of the Services being ordered and the associated Fees. Except as otherwise provided on the SOW or the Agreement, once placed, each SOW is non-cancellable and all sums paid are non-refundable. If Client’s use of the Services exceeds the quantity of Services ordered, then Client promptly must purchase and pay Fees for the excess quantity.
Any one of Client’s majority owned subsidiaries may also order Services under the Agreement by entering into an SOW, signed by such subsidiary and Skyword, and agreeing to be bound by the terms of the Agreement and such SOW. For the purposes of such SOW, “Client” as used in such SOW and the Agreement, shall be deemed to refer to the majority owned subsidiary executing such SOW.
2.3 Change Orders.
2.3.1 If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing, including email. Skyword shall, within a reasonable time after such request, provide a written estimate to Client of:
(a) the likely time required to implement the change;
(b) any necessary variations to the Fees and other charges for the Services arising from the change;
(c) the likely effect of the change on the Services; and
(d) any other impact the change might have on the performance of the Agreement.
2.3.2 Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing, including by emailed confirmation or other indication of assent to the Change Order.
2.3.3 Notwithstanding Sections 2.3.1 and 2.3.2, Skyword may, from time to time, change the Services without the consent of Client, provided that such changes do not materially affect the nature or scope of the Services or the Fees or any performance dates set forth in the SOW.
2.3.4 Skyword may charge for the time it spends assessing and documenting a change request from Client on a time and materials basis in accordance with the SOW.
3. Restrictions.
3.1 General Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other the Services (including images, text, page layout, or form) of Skyword; (c) you shall not use any metatags or other “hidden text” using Skyword’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, decrypt, disassemble, decompile, extract, reverse compile or reverse engineer any part of the Services or otherwise attempt to discover the source code, non-literal aspects, or other underlying components (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of the Services, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except to the extent that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services, (i) knowingly or intentionally store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Services, or use any robot, spider, scraper, harvesting, or any other automated means to access the Services; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of users, API calls, or endpoints that directly access or use the Services (sometimes referred to as ‘virtualization’, ‘multiplexing’ or ‘pooling’); (k) forge or manipulate identifiers in order to disguise the origin of any Client Data; (l) take any action that imposes or may impose (as determined in Skyword’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Services, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; (m) use the Services in connection with any stress test, penetration test, or vulnerability scanning, or otherwise publish or disclose (without Skyword’s prior express written approval) any of the results of such activities or other performance data of the Services; (n) use the Services to circumvent the security of another person’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; or (o) use the Services to violate any applicable law, including, without limitation, global or local privacy and data protection laws. Any future release, update, or other addition to the Services shall be subject to the Agreement. Skyword, its suppliers, and service providers reserve all rights not granted in the Agreement. Any unauthorized use of the Services or Skyword’s Intellectual Property Rights therein terminates the licenses granted by Skyword pursuant to the Agreement.
3.2 HIPAA. Client agrees that: (i) Skyword is not acting on Client’s behalf as a Business Associate or subcontractor; (ii) the Services may not be used to store, maintain, process or transmit protected health information (“PHI”) and (iii) the Services will not be used in any manner that would require Skyword or the Service to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”). In the preceding sentence, the terms “business associate,” “subcontractor,” “protected health information” or “PHI” shall have the meanings described in HIPAA.
4. Term, Fee, Payment & Taxes.
4.1 Term. The initial term of the Agreement shall be for the period specified in an applicable SOW to which the Agreement accompanies (the “Initial Term”). If Client has not entered into an SOW with Skyword regarding renewal of Client’s access and use of the Services prior to the expiration of the Initial Term or then-current Term of such Services, then the Term for such Services shall be automatically renewed for a period of one (1) year (the “Renewal Term”, together with the Initial Term, the “Term”) unless either party provides written notice of non-renewal to the other at least thirty (30) days before expiration of the applicable Term.
4.2 Fees and Payment. All fees under the Agreement (collectively, “Fees”) are due and payable within thirty (30) days from the invoice date unless otherwise specified in the applicable SOW. All Fees are non-refundable, except as otherwise explicitly stated in the applicable SOW or the Agreement.
4.3 Additional Fees. The Fees and the term of use for additional capacity of the applicable Accelerator360 Service metric and other items procured during an existing subscription term will co-terminate with and be prorated through the end date of the subscription term for the applicable Accelerator360 Service. Pricing for subsequent renewal SOW shall be set at then current Skyword pricing, unless otherwise agreed to by the parties.
4.4 Late Payments. In the event payments are not received by Skyword thirty (30) days after becoming due, Skyword may charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, accruing daily from the date such payment was due until the date paid. Interest charged in this section shall be in addition to and not in lieu of other remedies under the Agreement or applicable law.
4.5 Taxes. Skyword Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (“Taxes”). Client is responsible for paying all Taxes, excluding only Taxes based on Skyword’s net income. If Skyword has the legal obligation to pay or collect Taxes for which Client is responsible under this Section, the appropriate amount shall be invoiced to and paid by Client unless Client provides Skyword with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Intellectual Property.
5.1 Ownership of Client Data. As between Skyword and Client, all title and Intellectual Property Rights in and to the Client Data is owned exclusively by Client. Client acknowledges and agrees that in connection with the provision of the Services, Skyword may store and maintain Client Data for a period of time consistent with Skyword’s standard business processes for the Services. Following expiration or termination of the Agreement or a Client account, if applicable, Skyword may deactivate the applicable Client account(s) and delete any data therein. Client grants Skyword the right to host, use, process, display and transmit Client Data to provide the Services pursuant to and in accordance with the Agreement and the applicable SOW. Client has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Client Data, and for obtaining all rights related to Client Data required by Skyword to perform the Services.
5.2 Skyword Intellectual Property Rights. All rights, title and interest in and to the Services (including without limitation all Intellectual Property Rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Services provided or developed by Skyword) and anything developed or delivered by or on behalf of Skyword under the Agreement are owned exclusively by Skyword or its licensors, except for Deliverables once Client has paid for such Deliverables as provided in the Agreement and applicable SOW. Except as provided in the Agreement, the rights granted to Client do not convey any rights in the Services, express or implied, or ownership in the Services or any Intellectual Property Rights thereto. Client grants Skyword a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other Feedback (as defined below) or information provided by Client or any Users related to the operation or functionality of the Services. Any rights in the Services or Skyword’s Intellectual Property Right not expressly granted herein by Skyword are reserved by Skyword. Client agrees not to display or use the Marks in any manner without Skyword’s express prior written permission. The trademarks, logos and service marks (“Marks”) of Third Party Application providers are the property of such third parties. Client is not permitted to use these Marks without the prior written consent of such third party which may own the Mark. From time to time, Client may provide Skyword with comments, questions, enhancement requests, suggestions, ideas, descriptions of processes, or other information relating to our Services and Deliverables (collectively, “Feedback”). The Client acknowledges and agrees that Skyword may freely use any Feedback in any manner without any obligation, royalty, or other restriction.
5.3 Deliverables. Subject to Section 5.4, all Intellectual Property Rights to the Deliverables shall be owned by the Client upon full and final payment therefor. Skyword may use de minimis portions thereof solely for the purpose of internal marketing of its products and services, and any use that identifies Client shall be subject to Client’s reasonable, written approval. Client further grants Skyword a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual license to use Client Data solely to the extent necessary to enable Skyword to deliver the Services.
5.4 Third Party Intellectual Property Rights. In the event that Skyword includes third-party Intellectual Property from a third-party provider in a Deliverable, Client’s use shall be subject to the terms and conditions, as may be updated from time to time, set forth in such third-party provider’s terms and conditions. By way of example and not limitation, such terms may provide limitation on uses of such third-party Intellectual Property outside the specific Deliverable provided Skyword may update the list of third-party Intellectual Property providers, below, on the dashboard for the Services:
(a) Shutterstock – https://www.shutterstock.com/Terms
(b) https://openai.com/enterprise-privacy/
(c) https://openai.com/policies/business-terms/
(d) https://www.anthropic.com/legal/commercial-terms
(e) https://ai.google.dev/gemini-api/terms
In addition, to the extent that any Deliverable is an audio or video performance and contains the voice or likeness of a third-party (e.g., in video Content), Client may not use the voice or likeness of such third-party to as source or training material using any current or future technology, including without limitation creation of a digital twin of such third-party, without prior written consent of such third-party.
5.5 Aggregated Data. Notwithstanding anything else in the Agreement or otherwise, Skyword may monitor Client’s use of the Services and use data and information related to such use, Client Data in an aggregate and anonymous manner, including to improve and compile statistical and performance information related to the provision and operation of the Services (“Aggregated Data”). As between Skyword and Client, all right, title and interest in the Aggregated Data and all Intellectual Property Rights therein, belong to and are retained solely by Skyword. Client acknowledges that Skyword will be compiling Aggregated Data based on Client Data, and information input by other CLIENTs into the Services and Client agrees that Skyword may (a) make such Aggregated Data publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Client or its Confidential Information.
6. Accounts; Security.
6.1 Accuracy of Client’s Contact Information. Client shall provide accurate, current and complete information on Client’s legal business name, address, email address and phone number, and maintain and promptly update this information if it should change through the Services or as provided in Section 15.3.
6.2 Users: Passwords, Access and Notification. Client shall authorize access to and assign unique passwords and usernames to its Users. Client will be responsible for the confidentiality and use of User’s passwords and usernames. Client will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Client Data, and all other data of any kind contained within emails or otherwise entered electronically through the Accelerator360 Service or under Client’s account. Skyword will act as though any Electronic Communications it receives under Client’s passwords, Username, and/or account number will have been sent by Client. Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Accelerator360 Service and shall promptly notify Skyword of any unauthorized access or use of the Accelerator360 Service and any loss or theft or unauthorized use of any User’s password or name and/or Accelerator360 Service account numbers.
7. Availability; Support Services; Monitoring; Security.
7.1 Availability. Subject to the terms and conditions of the Agreement, Skyword will use commercially reasonable efforts to make the Accelerator360 Service available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Skyword will use commercially reasonable efforts to provide at least 72 hours advance notice) and weekly maintenance times, or (b) any unavailability caused by circumstances enumerated under Section 15.5.6.
7.2 General Support. As part of the Services, Skyword will provide Client with Help Documentation and other online resources to assist Client in its use of the Services. Skyword also offers optional “for fee” Support Services and Additional Services pursuant to a duly executed Statement of Work. Client may open a support ticket by emailing support@skyword.com.
7.3 Service Monitoring and Analyses.
(a) Monitoring. Skyword continuously monitors the Services to facilitate Skyword’s operation of the Services; to help resolve Client service requests; to detect and address threats to the functionality, security, integrity, and availability of the Services as well as any content, data, or applications in the Services; and to detect and address illegal acts or violations of usage. Skyword monitoring tools do not collect or store any Client Data residing in the Services, except as needed for such purposes. Skyword does not monitor, and does not address issues with, non-Skyword software provided by Client or any of Client’s Users that is stored in, or run on or through, the Services. Information collected by Skyword monitoring tools (excluding Client Data) may also be used to assist in managing Skyword’s product and service portfolio, to help Skyword address deficiencies in its product and service offerings, and for license management purposes.
(b) Service Analysis. Skyword may (i) compile statistical and other information related to the performance, operation and use of the Services, and (ii) use data from the Services in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses (i) and (ii) are collectively referred to as “Service Analyses”). Skyword may make Service Analyses publicly available; however, Service Analyses will not incorporate Client Data, personal information or Confidential Information in a form that could serve to identify Client or any individual. Skyword retains all Intellectual Property Rights in Service Analyses.
7.4 Security. Skyword shall maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Client Data.
7.5 Transmission of Data. Client understands that the technical processing and transmission of Client’s Electronic Communications is fundamentally necessary to use of the Services. Client is responsible for securing DSL, cable or another high speed Internet connection and up-to-date “browser” software in order to utilize the Services. Client expressly consents to Skyword’s interception and storage of Electronic Communications and/or Client Data as needed to provide the Services hereunder, and Client acknowledges and understands that Client’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Skyword. Client further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Without limiting Skyword’s applicable obligations under the Sections 7.4 (Security) and 9 (Confidentiality), Skyword is not responsible for any Electronic Communications and/or Client Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Skyword, including, but not limited to, the Internet and Client’s local network.
8. Suspension/Termination.
8.1 Suspension for Delinquent Account. Skyword reserves the right to suspend Client’s access to and/or use of the Services if any payment is ten (10) days past due. Client agrees that Skyword shall not be liable to Client or other third party for any suspension pursuant to this Section.
8.2 Suspension for Ongoing Harm. Skyword may suspend Client’s or Users’ access to, or use of, the Services if Skyword believes that (a) there is a significant threat to the functionality, security, integrity, or availability of the Services or any content, data, or applications in the Services; (b) Client or Users are accessing or using the Services to commit an illegal act; or (c) there is a violation of Section 3.1 (Acceptable Use; Restrictions). When reasonably practicable and lawfully permitted, Skyword will provide Client with advance notice of any such suspension. Skyword will use reasonable efforts to re-establish the Services promptly after Skyword determines that the issue causing the suspension has been resolved. During any suspension period, Skyword will make Client Data (as it existed on the suspension date) available to Client. Any suspension under this Section shall not excuse Client from Client’s obligation to make payments under the Agreement.
8.3 Termination for Cause. If either Client or Skyword breaches a material term of the Agreement or any SOW and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate (a) in the case of breach of any SOW, the applicable SOW under which the breach occurred; or (b) in the case of breach of the Agreement, the Agreement and all SOWs that have been placed under the Agreement. If Skyword terminates any orders as specified in the preceding sentence, Client must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services under such SOWs plus related Taxes and expenses. Except for nonpayment of Fees, the nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. Client agrees that if it is in default under the Agreement, Client may not use those Services ordered.
9. Confidentiality.
9.1 Non-Disclosure. Each party acknowledges that in the course of the performance of the Agreement, it may obtain the Confidential Information of the other party. The receiving party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the disclosing party’s Confidential Information received by it. The receiving party shall not use the Confidential Information of the disclosing party other than as necessary to fulfill the receiving party’s obligations or to exercise the receiving party’s rights under the Agreement. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, contractors or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The receiving party shall not disclose Confidential Information of the disclosing party to any person or entity other than its officers, employees, contractors and agents who need access to such Confidential Information in order to effect the intent of the Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in the Agreement.
9.2 Exceptions to Confidential Information. The obligations set forth in Section 10.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which: (a) was known by the receiving party prior to receipt from the disclosing party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) was developed by the receiving party without use of the disclosing party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of the Agreement or any obligation of confidentiality by the receiving party. Nothing in the Agreement shall prevent the receiving party from disclosing Confidential Information to the extent the receiving party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the receiving party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the disclosing party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the disclosing party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
9.3 Injunctive Relief. The parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the disclosing party and that, in the event of such breach, the receiving party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
10. Warranties, Disclaimers and Exclusive Remedies.
10.1 Each party represents that it has validly entered into the Agreement and that it has the power and authority to do so. Skyword warrants that during the Term, Skyword will perform (i) the Services using commercially reasonable care and skill in all material respects as described in the Documentation, and (ii) any Additional Services and Support Services in a professional manner consistent with industry standards (the warranties described by the foregoing clauses (i) and (ii), collectively, the “Services Warranty”). If the Services provided to Client were not performed as warranted, Client must promptly provide Skyword with a written notice that describes the deficiency in the Services (including, as applicable, the service request number notifying Skyword of the deficiency in the Services). For Additional Services, Client must notify Skyword of any warranty deficiencies within 60 days from performance of the deficient Additional Services.
10.2 EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT OR A SPECIFIC SOW, SKYWORD DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE, OR THAT ANY CONTENT WILL BE SECURE OR NOT LOST OR ALTERED. SKYWORD IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CLIENT DATA OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES.
10.3 CLIENT ACCEPTS AND AGREES THAT SKYWORD MAKES NO REPRESENTATION OR WARRANTY THAT ANY DELIVERABLE CREATED UNDER AN AI SYSTEM PORTION OF THE SERVICES WILL BE ELIGIBLE FOR REGISTRATION OR PROTECTION UNDER LAWS APPLICABLE TO INTELLECTUAL PROPERTY RIGHTS. “AI SYSTEM” MEANS ANY ARTIFICIAL INTELLIGENCE, MACHINE LEARNING, NATURAL LANGUAGE PROCESSING, OR OTHER REINFORCED OR SIMILAR LEARNING PLATFORMS, APPLICATIONS, PROGRAMS, SOFTWARE OR SYSTEMS, INCLUDING BUT NOT LIMITED TO, LARGE LANGUAGE MODELS, SYSTEMS OR ENGINES.
10.4 FOR ANY BREACH OF THE SERVICES WARRANTY, CLIENT’S EXCLUSIVE REMEDY AND SKYWORD’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF SKYWORD CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CLIENT MAY END THE DEFICIENT SERVICES AND SKYWORD WILL REFUND TO CLIENT THE FEES FOR THE TERMINATED SERVICES THAT CLIENT PRE-PAID TO SKYWORD FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
10.5 TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.6 From time to time Skyword may invite Client to try, at no charge, Skyword products or services that are not generally available to Skyword CLIENTs (“Assessment Services”). Client may accept or decline any such trial in its sole discretion. Any Assessment Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Assessment Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms that shall be provided by Skyword to Client prior to or concurrent with Skyword’s invitation to the applicable Assessment Services. Assessment Services are not considered “Services” hereunder. Skyword has the right to discontinue Assessment Services at any time in its sole discretion and may never make them generally available.
11. Limitations of Liability.
11.1 No Consequential Damages. EXCEPT FOR A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9 AND ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, NEITHER PARTY NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF SUCH PARTY OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICES. SKYWORD WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
11.2 Limits on Liability. EXCEPT FOR SKYWORD CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9 AND ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SKYWORD AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CLIENT’S SOW, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID UNDER CLIENT’S SOW FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
12. Indemnification.
12.1 Client Indemnification. Client agrees to indemnify and hold Skyword, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Skyword Party” and collectively, the “Skyword Parties”) harmless from any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees relating to or arising out of Client Data). This provision does not require you to indemnify any of the Skyword Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation, or concealment, suppression, or omission of any material fact in connection with the Services. Client agrees that the provisions in this section will survive any termination of your account, the Agreement, and/or your access to Skyword Properties.
12.2 Skyword Indemnification. Skyword shall defend, indemnify, and hold you its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Client Party” and collectively, the “Clients Parties”, together with a Skyword Party and Skyword Parties, each an “Indemnitee” and collectively, the “Indemnitees”) harmless against any loss, liabilities, expenses, damage, or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings made or brought against you by a third party alleging that the Services, or use of the Services as contemplated hereunder, infringes a copyright, a U.S. patent issued as of the date of final execution of the Agreement, or a trademark of a third party or involves the misappropriation of any trade secret of a third party.
12.3 Process. As a condition of a party’s obligation to indemnify an Indemnitee, such Indemnitee shall:
(a) notify the indemnifying party promptly in writing, not later than five (5) days after the Indemnitee receives notice of the claim (or sooner if required by applicable law);
(b) give the indemnifying party sole control of the defense and any settlement negotiations; and
(c) give the indemnifying party the information, authority and assistance the indemnifying party reasonably needs to defend against or settle the claim.
12.4 Intellectual Property Infringement. If any Services or any Deliverable or any part thereof provided by Skyword is held or likely to be held to infringe the Intellectual Property Right of another, or Client’s use of the Services or Deliverable, or any part thereof, is enjoined or interfered with in any manner, Skyword shall, at its sole expense promptly: (a) procure for Client the right to continue using the Services or Deliverable free of any liability for infringement or violation; and (b) replace or modify the Services and Deliverable at Skyword’s sole expense with non-infringing Services and Deliverables or equivalent or better functionality which is satisfactory to Client. Any such replacement, substitute, or modified products shall conform to the applicable SOW. If neither of the foregoing alternatives is reasonably and promptly available, Skyword shall, upon request from Client promptly remove the Deliverable or terminate the Services and promptly refund Client all Fees under the applicable SOW.
12.5 Exclusions. Skyword shall not be required to indemnify you in the event of: (i) modification of the Services by you or any party acting for you in conflict with their obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification; (ii) use of the Services in combination with any other product or service not provided by Skyword to the extent that the infringement or misappropriation would not have occurred but for such use; or (iii) use of the Services in a manner not otherwise contemplated by the Agreement to the extent that the infringement or misappropriation would not have occurred but for such use.
12.6 Sole Remedy. This Section 12 provides the parties’ exclusive remedy for any infringement claims or damages.
13. Third-Party Applications. Skyword or third-party providers may offer Third Party Applications. Except as expressly set forth in the SOW, Skyword does not warrant any such Third Party Applications, regardless of whether or not such Third Party Applications are provided by a third party that is a member of an Skyword partner program or otherwise designated by Skyword as “Built For Skyword,” “certified,” “approved” or “recommended.” Any procurement by Client of such Third Party Applications or services is solely between Client and the applicable third party provider. Client may not use Third Party Applications to enter and/or submit transactions to be processed and/or stored in the Services, unless Client has procured the applicable subscription to the Services for such use and access.
Skyword is not responsible for any aspect of such Third Party Applications that Client may procure or connect to through the Services, or any interoperation, descriptions, promises, or other information related to the foregoing. If Client installs or enables Third Party Applications for use with the Services, Client agrees that Skyword may enable such third party providers to access Client Data for the interoperation of such Third Party Applications with the Services, and any exchange of data or other interaction between Client and a third party provider is solely between Client and such third party provider pursuant to a separate privacy policy or other terms governing Client’s access to or use of the Third Party Applications. Skyword shall not be responsible for any disclosure, modification or deletion of Client Data resulting from any such access by Third Party Applications or third-party providers. No procurement of such Third Party Applications is required to use the Services. If Client was referred to Skyword by a member of one of Skyword’s partner programs, Client hereby authorizes Skyword to provide such member or its successor entity with access to Client’s business information related to the procurement and use of the Services pursuant to the Agreement, including but not limited to User names and email addresses, support cases and billing/payment information.
14. Updates. During the Term, Skyword may update the Services, the Documentation to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of Third Party Applications. Skyword updates to the Services, the Documentation will not materially reduce the level of performance, functionality, security or availability of the Services during the term of Client’s SOW.
15. General Provisions.
15.1 Entire Agreement.
15.1.1 The Agreement incorporates Exhibits and SOWs, and the Agreement, together with such referenced items, constitute the entire understanding between Client and Skyword and are intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, RFP’s and/or agreements between the parties. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties. Client acknowledges that other click through agreements may apply if optional services or features are subsequently ordered or activated, which shall not amend or supersede the Agreement unless expressly stated. For clarity, such other click through agreements will only apply to such optional services or features.
15.1.2 Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Client in connection to the Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify, the Agreement, regardless of any failure of Skyword to object to such terms, provisions, or conditions. In the event of any inconsistencies between the terms of an SOW and the Agreement, the SOW shall take precedence; however, unless expressly stated otherwise in an SOW, the terms of a Data Processing Agreement, if any, shall take precedence over any inconsistent terms in an SOW.
15.1.3 The Agreement shall not be modified, or amended, except as expressly set forth herein, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed SOW or Statement of Work.
15.2 Governing Law and Jurisdiction. This Agreement is governed by the substantive and procedural laws of the Commonwealth of Massachusetts and you and Skyword agree to submit to the exclusive jurisdiction of, and venue in, the courts in Boston, Massachusetts in any dispute relating to the Agreement. Each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts in Boston, Massachusetts in any dispute arising out of or relating to the Agreement.
15.3 Notice. Any notice required under the Agreement shall be provided to the other party in writing. If Client has a legal dispute with Skyword or if Client wishes to provide a notice under Section 12, or if Client becomes subject to insolvency or other similar legal proceedings, Client will promptly send written notice to: Finance@skyword.com.
15.4 Export.
15.4.1 Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. Such export laws govern use of the Services (including technical data) and any Deliverables provided under the Agreement, and Client and Skyword each agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Client agrees that no data, information, software programs and/or materials resulting from the Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
15.4.2 Client acknowledges that the Services are designed with capabilities for Client and Users to access the Services without regard to geographic location and to transfer or otherwise move Client Data between the Services and other locations such as User workstations. Client is solely responsible for the authorization and management of User accounts across geographic locations, as well as export control and geographic transfer of Client Data.
15.5 Other General Provisions.
15.5.1 The Agreement shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign the Agreement without written consent of the other, except that Skyword may assign without consent to a related entity or the successor of all or substantially all of the assignor’s business or assets to which the Agreement relates. There are no third-party beneficiaries to the Agreement.
15.5.2 The Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
15.5.3 Skyword’s business partners and other third parties, including any third parties with which the Services have integrations or that are retained by Client to provide consulting services, implementation services or applications that interact with the Services, are independent of Skyword and are not Skyword’s agents. Skyword is not liable for, bound by, or responsible for any problems with the Services or Client Data arising due to any acts of any such business partner or third party, unless the business partner or third party is providing Services as Skyword’s subcontractor on an engagement ordered under the Agreement and, if so, then only to the same extent as Skyword would be responsible for our resources under the Agreement.
15.5.4 If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect. A waiver of any breach under the Agreement should not constitute a waiver of any other breach or future breach.
15.5.5 Notwithstanding anything to the contrary, Client agrees to pay Skyword’s reasonable attorney fees, costs, and expenses incurred in enforcing any provision of the Agreement – including, but not limited to, Client’s obligation to pay Fees.
15.5.6 Neither party shall be liable for loss, delay, nonperformance (including failure to meet the service level commitment but excluding payment obligations) to the extent resulting from any force majeure event, including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of third parties, failure of the Internet, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute (other than those involving Skyword employees), or shortage of materials, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible and any delivery date shall be extended accordingly.
15.5.7 Nothing in the Agreement shall be construed as precluding or limiting in any way the right of Skyword to provide consulting, development, or other services of any kind to any individual or entity (including without limitation performing services or developing materials which are similar to and/or competitive with the Additional Services and/or Deliverables hereunder).
15.5.8 The Section headings used in the Agreement are included for reference purposes only and shall not affect the meaning or interpretation of the Agreement in any way. Provisions that survive termination or expiration of the Agreement are those relating to limitation of liability, indemnification, payment and others which by their nature are intended to survive. The Agreement may be executed in counterparts and/or by facsimile or electronic signature and if so executed shall be equally binding as an original copy of the Agreement executed in ink by both parties.
