Skyllful Terms of Service

1.1."Access Protocols" means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any Authorized Users to access the Skyllful Service.

1.2."Authorized User" means any individual who is an employee of Subscriber, or such other person or entity as may be authorized by an Order Form, to access the Skyllful Service pursuant to Subscriber's rights under this Agreement. Subscriber shall not allow any third parties to access the Skyllful Service until those third parties have entered into signed, written agreements requiring them to protect Confidential Information with at least the same degree of care as this Agreement imposes upon Skyllful and Subscriber. See Section 8, CONFIDENTIALITY.

1.3."Documentation" means the technical materials made available by Skyllful to Subscriber in electronic form that describe the features, functionality or operation of the Skyllful System.

1.4."Error" means a reproducible failure of the Skyllful Service to substantially conform to the Documentation.

1.5."Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

1.6."License Term" means the term of Subscriber's access and use of the Skyllful Services as set forth in an Order Form or as otherwise agreed to by Subscriber and Skyllful in writing.

1.7."Order Form" means a document, either physical or electronic, signed by both Parties identifying the Skyllful Services to be made available to Subscriber pursuant to this Agreement.

1.8."Skyllful Service" means the on-line service delivered by Skyllful to Subscriber using the Skyllful System as described in the Order Form.

1.9."Skyllful System" means the technology, including hardware and software, used by Skyllful to deliver the Skyllful Service to Subscriber.

1.10."Subscriber Content" means any content, materials, works, audio, video, or information that Subscriber uploads, is generated by, or otherwise uses in connection with the Skyllful Service.

1.11."Usage Data" means any data or information that is collected or produced by Skyllful, the Skyllful Service, or the Skyllful System in connection with the Subscriber's use of the Skyllful Services (excluding Subscriber Content).

2.1.Subscription to the Skyllful Service. Subject to the terms and conditions of this Agreement, Skyllful hereby grants to Subscriber, during the term of this Agreement, a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Skyllful Service by the number of Authorized Users set forth in the Order Form and in accordance with the limitations set forth in the Order Form.

2.2.Access. Subject to Subscriber's payment of the fees set forth in the Order Form, Skyllful will provide Subscriber with access to the Skyllful Service during the term of this Agreement. On or as soon as reasonably practicable after the Effective Date, Skyllful shall provide to Subscriber the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Subscriber and its Authorized Users to access the Skyllful Service in accordance with the Access Protocols. Subscriber shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Skyllful Service, and notify Skyllful promptly of any such unauthorized use known to Subscriber.

2.3.Authorized Users. Subscriber may permit any Authorized Users to access and use the features and functions of the Skyllful Service as contemplated by this Agreement. If a Subscriber wishes to add additional Authorized Users, Subscriber may request additional Authorized Users at any time by executing a new Order Form detailing the number of additional Authorized Users. Upon written acceptance by Skyllful of the Order Form, Skyllful shall make the Skyllful Services available to the additional Authorized Users.

2.4.Limitations. Subscriber will not permit any Authorized User or other third party to: Subscriber acknowledges and agrees that any use of the Skyllful Service contrary to or in violation of this Section 2.4 or this Agreement constitutes unauthorized and improper use of the Skyllful Service.

2.5.Support. Subject to the terms of this Agreement, Skyllful shall use commercially reasonable efforts to provide Skyllful's standard support services.

2.6.Consent to Use of Data. To the extent Skyllful accesses Subscriber Content in connection with providing support or professional services, such access shall be limited to the minimum necessary to fulfill the applicable service request. Skyllful may collect and use Usage Data for its internal business purposes, and, except as provided herein, Skyllful shall not disclose Usage Data to any third party. Skyllful may collect, analyze and use Usage Data in de-identified and aggregated form for any legal business purpose, including for (a) generating aggregated information related to Subscriber's use of the Skyllful Services; (b) analyzing previous and current market conditions; (c) conducting internal research and development; and (d) benchmarking. For the avoidance of doubt, Skyllful may distribute or publicly display such de-identified and aggregated Usage Data to other users of the Skyllful Services, or the marketplace in general. Skyllful shall not disclose Usage Data in a form that identifies Subscriber.

3.1.Skyllful Technology. Subscriber acknowledges that Skyllful retains all right, title and interest in and to the Skyllful System, Documentation and all software and all Skyllful proprietary information and technology used by Skyllful or provided to Subscriber in connection with the Skyllful Service (the "Skyllful Technology"), and that the Skyllful Technology is protected by Intellectual Property Rights owned by or licensed to Skyllful. Other than as expressly set forth in this Agreement, no license or other rights in the Skyllful Technology are granted to Subscriber. Subscriber hereby grants to Skyllful a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Skyllful Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Authorized Users, relating to the Skyllful Service. Skyllful shall not identify Subscriber as the source of any such feedback.

3.2.Subscriber Content. The Subscriber Content hosted by Skyllful as part of Skyllful Service, and all worldwide Intellectual Property Rights therein, is the exclusive property of Subscriber. Subscriber hereby grants to Skyllful a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Subscriber Content as necessary for purposes of providing the Skyllful Service to Subscriber and (b) to use the Subscriber trademarks, service marks, and logos as required to provide the Skyllful Service to Subscriber. All rights in and to the Subscriber Content not expressly granted to Skyllful in this Agreement are reserved by Subscriber.

4.1.Fees. In consideration for the access rights granted to Subscriber and the services performed by Skyllful under this Agreement, Subscriber will pay to Skyllful the fees set forth in the Order Form. All fees are due and payable to Skyllful per the payment terms in the Order Form. Subscriber shall pay all undisputed amounts when due. Any amounts not paid when due shall be considered overdue. If any undisputed invoice remains unpaid more than fifteen (15) days after the applicable due date, Skyllful may, upon at least five (5) days prior written notice to Subscriber, suspend Subscriber's and its Authorized Users' access to the Skyllful Service until such overdue amounts are paid in full. Suspension of the Skyllful Service shall not relieve Subscriber of its obligation to pay all amounts due under this Agreement. Payment terms stated in an Order Form shall govern and shall not be modified by any purchase order, procurement portal, supplier onboarding system, or other document issued by Subscriber unless expressly agreed in a written amendment signed by authorized representatives of both Parties. Any additional or inconsistent terms contained in a purchase order are rejected and shall be null and void.

4.2.Taxes. The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on Skyllful's income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of access to the Skyllful Service to Subscriber. Subscriber will make all payments of fees to Skyllful free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Skyllful will be Subscriber's sole responsibility, and Subscriber, if requested, will provide Skyllful with official receipts issued by the appropriate taxing authority, or such other evidence as the Skyllful may reasonably request, to establish that such taxes have been paid. Subscriber shall indemnify and defend Skyllful in connection with any proceedings brought by any taxing authorities in connection with this Agreement.

5.1.Backup. Skyllful is not obligated to backup any Subscriber Content, and Subscriber is solely responsible for creating backup copies of any Subscriber Content at Subscriber's sole cost and expense.

5.2.Subscriber Responsibility for Data and Security; Use of Sensitive Personal Information Prohibited. Subscriber and its Authorized Users shall have access to the Subscriber Content and shall be responsible for all changes to and/or deletions of Subscriber Content and the security of all passwords and other Access Protocols required in order to access the Skyllful Service. Subscriber shall have the ability to export Subscriber Content out of the Skyllful Service and is encouraged to make its own back-ups of the Subscriber Data. Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Content. Subscriber acknowledges that the ordinary operation of the Skyllful Service requires Subscriber to provide limited personal information necessary to provision and administer user accounts ("Operational PII"), which may include name, work email address, employee identification number, supervisor, job title, or location, as applicable to the Subscriber's deployment configuration. Skyllful shall handle all Operational PII in accordance with applicable law and shall use Operational PII solely for the purpose of providing the Skyllful Service to Subscriber. Subscriber shall not enter into the Skyllful Service any sensitive personal information, including without limitation Social Security numbers, government-issued identification numbers, financial account information, payment card information, health or medical information, or biometric data (collectively, "Sensitive PII"). Skyllful accepts no responsibility for Sensitive PII that Subscriber enters into the Skyllful Service in violation of this Section.

6.1.Mutual Representations and Warranties. Each of Subscriber and Skyllful represent and warrant to the other that:

6.2.By Skyllful. Skyllful represents and warrants that:

6.3.By Subscriber. Subscriber represents and warrants that any Subscriber Content shall not (a) infringe, misappropriate or violate any Intellectual Property Rights, publicity/privacy rights, law or regulation; (b) be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (d) otherwise violate the rights of a third party.

7.3.Basis of the Bargain. The Parties agree that the limitations of liability set forth in this Section 7 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the fees to access and use the Skyllful Service have been set by Skyllful in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.

8.1.Confidential Information. During the term of this Agreement, each Party (the "Disclosing Party") may provide the other Party (the "Receiving Party") with certain information regarding the Disclosing Party's business, technology, products, or services or other confidential or proprietary information (collectively, "Confidential Information"). The Disclosing Party will mark all Confidential Information in tangible form as "confidential" or "proprietary" or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Skyllful Service, Skyllful System or Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Skyllful.

8.1A.Use of Artificial Intelligence.

8.2.Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Subscriber) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Skyllful). In addition, the Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party's request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.

8.3.Exceptions. The confidentiality obligations set forth in this Section 8 will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

9.1.By Skyllful. Skyllful will defend at its expense any suit brought against Subscriber, and will pay any settlement Skyllful makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Skyllful Service or Skyllful System infringes, misappropriates or violates any U.S. Intellectual Property Rights. If any portion of the Skyllful Service or Skyllful System becomes, or in Skyllful's opinion is likely to become, the subject of a claim of infringement, Skyllful may, at Skyllful's option: (a) procure for Subscriber the right to continue using the Skyllful Service or Skyllful System; (b) modify the Skyllful Service or Skyllful System so that it becomes non-infringing; or (c) terminate this Agreement and refund any fees actually paid by Subscriber to Skyllful for the remainder of the term then in-effect, and upon such termination, Subscriber will immediately cease all use of the Skyllful Service, Skyllful System, and Documentation. Notwithstanding the foregoing, Skyllful shall have no obligation under this Section 9.1 or otherwise with respect to any infringement claim based upon (w) any use of the Skyllful Service or Skyllful System not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Skyllful Service or Skyllful System in combination with other products, equipment, software or data not supplied by Skyllful; or (y) any modification of the Skyllful Service or Skyllful System by any person other than Skyllful or its authorized agents. This Section 9.1 states the sole and exclusive remedy of Subscriber and the entire liability of Skyllful, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.

9.2.By Subscriber. Subscriber will defend at its expense any suit brought against Skyllful, and will pay any settlement Subscriber makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to Subscriber's breach or alleged breach of this Agreement or any Subscriber representations or warranties herein.

9.3.Procedure. The indemnifying Party's obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified Party shall promptly notify the indemnifying Party in writing of any threatened or actual claim or suit; (b) the indemnifying Party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified Party shall cooperate with the indemnifying Party to facilitate the settlement or defense of any claim or suit.

10.1.Term. This Agreement commences on the Effective Date and remains in effect for the License Term set forth in the Order Form. This Agreement shall be automatically renewed for consecutive one (1) year terms unless either party provides written notice to the other of its intention not to renew at least sixty (60) days prior to the expiration of the then-current term. The notice period set forth in the applicable Order Form shall govern in lieu of the foregoing to the extent of any conflict.

10.2.Termination. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.

10.3.Effect of Termination. Upon termination or expiration of this Agreement: (a) all rights and obligations of both Parties, including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, each Party shall comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth in Section 8; and (c) within ten (10) days after the effective date of termination, Skyllful shall discontinue all use of Subscriber Content and destroy all copies of Subscriber Content in its possession. Sections 1, 2.4, 3, 6, 7, 8, 9, 10.3, 10.4 will survive expiration or termination of this Agreement for any reason.

10.4.Content Retention. Upon termination or expiration of this Agreement, Subscriber may request in writing that Skyllful delete Subscriber Content from the Skyllful System. Requests must be submitted to privacy@skyllful.com. Skyllful will use commercially reasonable efforts to complete such deletion within thirty (30) business days of receipt of a valid written request. Subscriber acknowledges that residual copies of Subscriber Content may remain in Skyllful's system backup archives for a limited additional period, after which they will be purged in the ordinary course of business. It is Subscriber's sole responsibility to export and retain any Subscriber Content it wishes to preserve. For a period of thirty (30) days following termination or expiration, Skyllful will provide Subscriber reasonable access to export Subscriber Content upon written request.

11.1.Availability. The availability and functionality of the Skyllful Service depends on various factors, such as software, cloud infrastructure and third-party hosting services, network connectivity, and other factors outside Skyllful's reasonable control. Skyllful does not warrant or guarantee that the Skyllful Service will be available at all times without disruption. Specific availability commitments and service level obligations, if any, shall be set forth in the applicable Order Form or Service Description and shall govern in lieu of this Section to the extent of any conflict.

11.2.Modification of the Services. Skyllful reserves the right to modify, enhance, or improve the Skyllful Service at any time and at its sole discretion. For routine updates, bug fixes, and minor enhancements, Skyllful may implement changes without prior notice. Skyllful shall not be liable to Subscriber or to any third party for any modification, enhancement, or improvement to the Skyllful Service. Specific availability commitments and service level obligations, if any, shall be set forth in the applicable Order Form or Service Description and shall govern in lieu of this Section to the extent of any conflict.

13.1.Governing Law; Binding Arbitration; and Class Action Waiver.

13.2.Export. Each Party agrees to comply with all applicable export control laws and regulations of the United States and any other applicable jurisdiction, including without limitation the Export Administration Regulations administered by the U.S. Department of Commerce and economic sanctions regulations administered by the U.S. Department of the Treasury's Office of Foreign Assets Control ("OFAC"). Neither Party shall export, re-export, or transfer, directly or indirectly, any products, services, software, or technology provided under this Agreement in violation of applicable export control or sanctions laws. Each Party represents and warrants that it is not named on any U.S. government restricted party list, including without limitation the Specially Designated Nationals list maintained by OFAC, and that it will promptly notify the other Party if this representation becomes inaccurate during the term of this Agreement.

13.3.Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

13.4.Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

13.5.Remedies. Except as otherwise provided herein, the rights and remedies of the Parties are cumulative and not alternative, and the exercise of any one right or remedy shall not preclude the exercise of any other right or remedy available at law, in equity, or under this Agreement.

13.6.No Assignment. Neither Party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other Party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either Party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other Party. The terms of this Agreement shall be binding upon the Parties and their respective successors and permitted assigns. No assignment shall relieve the assigning party of any obligations under this Agreement or any applicable Order Form that arose prior to the effective date of such assignment, including any payment obligations.

13.7.Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic or public health emergency, cyberattack or cybersecurity incident beyond the affected Party's reasonable control, government action or regulation, supply chain disruption, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.

13.8.Notices. Each Party must deliver all notices or other communications required or permitted under this Agreement in writing. Formal legal notices, including notices of breach, termination, or indemnification claims, must be delivered by overnight courier or certified or registered mail (postage prepaid and return receipt requested) to the address on the first page of this Agreement, and shall be effective upon receipt. Routine operational communications may be delivered by email to the address designated by each Party for such purposes and shall be deemed received upon confirmation of delivery. Each Party may update its notice address by written notice to the other Party.

13.9.Counterparts. This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument. Electronic signatures shall be deemed valid and binding to the same extent as original ink signatures, provided that such electronic signatures comply with the federal Electronic Signatures in Global and National Commerce Act (E-SIGN) and applicable state equivalents including the Uniform Electronic Transactions Act (UETA), as enacted in the relevant jurisdiction.

13.10.Entire Agreement. This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and Skyllful.