1. Applicability
(a) These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by Skyword, Inc. (“Service Provider”) to the entity signing the appropriate Order Form or other document agreed upon between the parties (“Customer”).
(b) The accompanying order form (the “Order Form”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Form, these Terms shall govern unless the Order Form expressly states that the terms and conditions of the Order Form shall control over a specific section hereof.
(c) These Terms prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
2. Services
(a) Service Provider shall provide the services to Customer as described in the Order Form (the “Services”) in accordance with these Terms.
3. Performance Dates
(a) Service Provider shall use reasonable efforts to meet any performance dates specified in the Order Form, and any such dates shall be estimates only.
4. Customer’s Obligations
Customer shall:
(a) cooperate with Service Provider in all matters relating to the Services and provide such access to Customer’s staff as necessary, and as may reasonably be requested by Service Provider, to perform the Services;
(b) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for the Service Provider to perform Services in accordance with the requirements of this Agreement;
(c) provide such Customer materials or information as Service Provider may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and
(d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start; and
(e) warrant, represent, and guarantee that any Intellectual Property provided by Customer, or otherwise requested by Customer to be used in the Services, is properly licensed or owned by Customer.
5. Customer’s Acts or Omissions
If the Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Change Orders
(a) 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. Service Provider shall, within a reasonable time after such request, provide a written estimate to Customer of:
(i) the likely time required to implement the change;
(ii) any necessary variations to the fees and other charges for the Services arising from the change;
(iii) the likely effect of the change on the Services; and
(iv) any other impact the change might have on the performance of this Agreement.
(b) 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 in accordance with Section 26.
(c) Notwithstanding Section 6(a) and Section 6(b), Service Provider may, from time to time, change the Services without the consent of Customer, 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 Order Form.
(d) Service Provider may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Order Form.
7. Fees and Expenses; Payment Terms; Interest on Late Payments
(a) In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Form.
(b) Unless otherwise set forth in an applicable Order Form, Customer shall pay all invoiced amounts due to Service Provider within thirty (30) days from the date of Service Provider’s invoice. Customer shall make all payments hereunder in US dollars by ACH or wire transfer as set forth in the Order Form.
(c) In the event payments are not received by Service Provider thirty (30) days after becoming due, Service Provider may:
(i) 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; and
(ii) suspend performance for all Services until payment of all overdue amounts due has been made in full.
(d) Notwithstanding anything to the contrary, Customer agrees to pay Service Provider’s reasonable attorney fees, costs, and expenses incurred in enforcing any provision of this Agreement – including, but not limited to, Customer’s obligation to pay fees.
8. Taxes
(a) Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
9. Intellectual Property
(a) With the exceptions set forth in Section 9(b), below, all intellectual property rights, including 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 (collectively, “Intellectual Property Rights”) in and to all materials set forth in an Order Form and delivered to Customer (“Deliverables”) under this Agreement shall be owned by the Customer upon full and final payment therefor. Service Provider may use de minimis portions thereof solely for the purpose of internal marketing of its products and services, and any use that identifies Customer shall be subject to Customer’s reasonable, written approval. Customer further grants Service Provider a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual license to use Customer’s intellectual property solely to the extent necessary to enable Service Provider to deliver the Services. From time to time, Customer may provide Service Provider with comments, questions, enhancement requests, suggestions, ideas, descriptions of processes, or other information relating to our Services and Deliverables (collectively, “Feedback”). The customer acknowledges and agrees that Service Provider may freely use any Feedback in any manner without any obligation, royalty, or other restriction.
(b) In the event that Service Provider includes third-party Intellectual Property from a third-party provider in a Deliverable, Customer’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. Note that currently, our large language model provider, OpenAI, does not store any input for longer than thirty (30) days, and any input provided is not used to further train any database or system. Service Provider may update the list of third-party Intellectual Property providers, below, via Notice on Service Provider’s platform dashboard (“Skyword360”):
(i) Shutterstock – https://www.shutterstock.com/terms
(ii) OpenAI – https://openai.com/policies/terms-of-use
10. Confidential Information
(a) 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 customers, pricing, and marketing (collectively, “Confidential Information”), 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. Confidential Information does not include information that is:
(i) in the public domain;
(ii) known to Customer at the time of disclosure; or
(iii) rightfully obtained by Customer on a non-confidential basis from a third party.
(b) Each party agrees to use the Confidential Information only to provide or make use of the Services and Deliverables as applicable to each.
(c) A party shall be entitled to injunctive relief, without the necessity of posting a bond or other surety, for any violation of this Section.
11. Representation and Warranty
(a) Service Provider represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
(b) The Service Provider shall not be liable for a breach of the warranty set forth in Section 11(a) unless Customer gives written notice of the defective Services, reasonably described, to the Service Provider within thirty (30) days of the time when Customer discovers or ought to have discovered that the Services were defective.
(c) Subject to Section 11(b), Service Provider shall, in its sole discretion, either:
(i) repair or re-perform such Services (or the defective part); or
(ii) credit or refund the price of such Services at the pro rata contract rate.
(d) THE REMEDIES SET FORTH IN SECTIONS 11(c) AND 15(c) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES AND OBLIGATIONS SET FORTH IN SECTIONS 11(a) AND 15(c).
12. Disclaimer of Warranties
(a) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(a), SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. NOTWITHWTANDING ANYTHING TO THE CONTRARY, SERVICE PROVIDER DOES NOT WARRANT THAT ITS PLAGIARISM CHECK PROCESS WILL REVEAL ALL INSTANCES OF PLGIARISM AND SERVICE PROVIDER SHALL NOT BE LIABLE THERFOR.
13. Limitation of Liability
(a) IN NO EVENT SHALL THE SERVICE PROVIDER BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL THE SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE SERVICE PROVIDER PURSUANT TO THE APPLICABLE ORDER FORM IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
14. Termination
(a) In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer if Customer:
(b) fails to pay any amount when due under this Agreement, and such failure continues for the (10) days after Customer’s receipt of written notice of nonpayment;
(c) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
(d) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
15. Indemnification
(a) Each party (as “Indemnitor”) will defend, indemnify, and hold harmless the other party and its directors, officers, and employees (each, an “Indemnitee” and, collectively, the “Indemnitees”), from and against all damages liabilities, costs, and fees, including reasonable attorneys’ fees and court costs, to the extent arising out of a claim, action, suit or proceeding brought by a third party (a “Claim”) against an Indemnitee to the extent such Claim arises out of the Indemnitor’s breach or alleged breach of any of its representations or warranties made herein (unless an exclusive remedy is provided in connection with such representation or warranty).
(b) The obligations of the Indemnitor set forth in this Section above are contingent upon the Indemnitee (i) promptly notifying the Indemnitor in writing of the Claim, except that any failure to provide this notice promptly only relieves the Indemnitor of its responsibility pursuant to this Section to the extent its defense is materially prejudiced by the delay; (ii) granting the Indemnitor sole control of the defense and/or settlement of the Claim, provided that (1) the Indemnitor may not agree to any settlement that admits fault by the Indemnitee or purports to bind the Indemnitee without the Indemnitee’s prior written consent, such consent not to be unreasonably withheld, delayed, or conditioned and (2) any settlement must include an unconditional release of the Indemnitee from any liability or claims that are the subject matter of such Claim; and (iii) providing the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the Claim.
(c) If Service Provider believes a Claim (or an adverse judgment in connection with a Claim) relating to the infringement of third-party Intellectual Property Rights is likely, then Service Provider may, at its option, (x) obtain a license from the third-party claimant that allows Customer to continue the use of the Deliverable, (y) modify the Deliverable so as to be non-infringing, or (z) if neither (x) nor (y) is available to Service Provider at commercially reasonable terms, provide a refund of the fees for the affected Deliverable.
16. Waiver
(a) No waiver by a party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the waiving party. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. Each party hereby specifically waives any right to engage in a class action matter or join with any other party in a class action suit.
17. Force Majeure
(a) No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within thirty (30) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party’s failure or delay remains uncured for sixty (60) consecutive days following written notice under this Section 17, either party may terminate this Agreement upon thirty (30) days written notice.
18. Assignment
(a) Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation violating this Section is null and void. No assignment or delegation relieves Customer of any obligations under this Agreement.
19. Relationship of the Parties
(a) The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other forms of joint enterprise, employment, or fiduciary relationship between the parties. Neither party shall have the authority to contract for or bind the other party in any manner whatsoever.
20. No Third-Party Beneficiaries
(a) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
21. Governing Law
(a) All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR THE DELIVERABLES.
22. Submission to Jurisdiction
(a) Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the state or federal courts of the United States of America with jurisdiction over Dover, Delaware, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
23. Notices
(a) All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Form or to such other address that the receiving party in writing may designate. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section.
(b) Service Provider may also provide Notice to Customer by means of a general notice on the Skyword360 platform dashboard. In the event that Customer has a dispute with Service Provider and wishes to provide a Notice under the Agreement, or if it becomes subject to insolvency or other similar legal proceedings, Customer shall promptly notify Service Provider’s Chief Financial Officer by written Notice to Skyword c/o WeWork at 33 Arch Street, Boston, MA 02110, with a copies via email to i) finance@skyword.com, and ii) to Service Provider’s counsel at team@foundrygc.com.
24. Severability
(a) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. In the event that any provision of this Agreement is held invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
25. Survival
(a) Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Indemnification, Limitation of Liability, Governing Law, Submission to Jurisdiction, and Survival.
26. Amendment and Modification
(a) This Agreement may only be amended or modified in writing, specifically stating that it amends this Agreement and is signed by an authorized representative of each party.
27. Limitation of Claims
(a) Customer agrees that, notwithstanding anything to the contrary, any claim or cause of action arising out of or related to the Deliverables, Services, or this Agreement must be filed within one (1) calendar year of the action that gave rise to such claim or action – or be forever barred.
28. Third-Party Vendors
(a) In order for the Services to operate as intended, Service Provider uses certain third-party vendors who may have applicable terms and conditions for the use of their products and/or services – as such terms and conditions may be updated from time to time. By using Service Providers Services and Deliverables, Customer agrees to be bound by the following terms and conditions. In the event of a conflict between a third-party’s terms and conditions and this Agreement, the terms of the third-party agreement shall control.
(b) Amazon Web Services – https://aws.amazon.com/service-terms/ ;
(c) Google Analytics- https://marketingplatform.google.com/about/analytics/terms/us/ ;
(d) OpenAI – https://openai.com/policies/terms-of-use ; and
(e) Shutterstock.com – https://www.shutterstock.com/terms .
