SKYLLFUL TERMS OF SERVICE
This Terms of Service (this “Agreement”) sets forth the relationship between Skyllful Inc., (“Skyllful”) and the company or individual identified below (“Subscriber”) (each of Skyllful and Subscriber, a “Party” and collectively, the “Parties”) and governs Subscriber’s use of the Skyllful Services (defined below). This Agreement constitutes the terms under which Skyllful offers Subscriber to access and use the Skyllful Services and, therefore, will become effective as of the date set forth in the Order Form as defined below (the “Effective Date”).
Any capitalized terms in this Agreement will have the meanings attributed to them below, in other schedules, or as set forth in the Order Form.
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.
2. SKYLLFUL SERVICE
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: (a) use the Skyllful Service to harvest, collect, gather or assemble information or data regarding other Skyllful subscribers without their consent; (b) access or copy any data or information of other Skyllful subscribers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Skyllful Service or the data contained therein; (d) harass or interfere with another Skyllful subscriber’s use and enjoyment of the Skyllful Service; (e) reverse engineer, disassemble or decompile any component of the Skyllful System; (f) interfere in any manner with the operation of the Skyllful Service, or the Skyllful System or the hardware and network used to operate the Skyllful Service; (g) sublicense any of Subscriber’s rights under this Agreement, or otherwise use the Skyllful Service for the benefit of a third party or to operate a service bureau; (h) modify, copy or make derivative works based on any part of the Skyllful System; or (i) otherwise use the Skyllful Service in any manner that exceeds the scope of use permitted under this Agreement. 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. Skyllful may collect and use stored information such as anonymized meta data gathered as part of its support services but may only use this information to improve its products and services. Skyllful shall not disclose any of this information in a form that personally identifies Subscriber or its clients.
3. OWNERSHIP OF THE SKYLLFUL TECHNOLOGY
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. FEES AND EXPENSES; PAYMENTS
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. Skyllful shall be entitled to (in addition to any other rights or remedies Skyllful may have) discontinue the Skyllful Service and suspend all Authorized Users’ and Subscriber’s access to the Skyllful Service if any fees are overdue until such amounts are paid in full.
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.
4.3. Interest. Any amounts not paid when due shall bear interest at the rate of one-and one-half percent (1.5%) per month, or the maximum legal rate if less.
5. SUBSCRIBER CONTENT AND RESPONSIBILITIES
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 Personally Identifiable 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 the 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 shall not enter any Personally Identifiable Information (“PII”) into the Skyllful Service. Skyllful accepts no responsibility for PII that Subscriber enters into the Skyllful Service.
6. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
6.1. Mutual Representations and Warranties. Each of Subscriber and Skyllful represent and warrant to the other that:
a) it is a business duly incorporated, validly existing, and in good standing under the laws of its state of incorporation or filing;
b) it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;
c) this Agreement, when executed and delivered, shall be a valid and binding obligation of it enforceable in accordance with its terms;
d) the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms;
e) it shall comply with all applicable federal, state, local, international, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement.
6.2. By Skyllful. Skyllful represents and warrants that:
a) Skyllful will provide the Skyllful Service in a professional manner consistent with general industry standards and that the Skyllful Service will perform substantially in accordance with the Documentation.
b) Skyllful will use its reasonable endeavors to ensure that no computer viruses, Trojan Horses, worms, spyware, malware, or other similar items (collectively, “Malicious Code”) are introduced into Subscriber’s computer and network environment while providing the Skyllful Service, except for any Malicious Code contained in Subscriber-uploaded attachments or otherwise originating from Subscriber; and
c) the Skyllful Service shall not infringe upon or misappropriate any Intellectual Property Right of any third party.
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.
6.4. Disclaimer of Warranties. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE ONLY FOR THE BENEFIT OF SUBSCRIBER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY SKYLLFUL SERVICES, SKYLLFUL SYSTEMS OR DOCUMENTATION ARE PROVIDED “AS IS,” AND SKYLLFUL MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE ANY SKYLLFUL SERVICE, SKYLLFUL SYSTEM OR DOCUMENTATION (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO SUBSCRIBER BY SKYLLFUL. SKYLLFUL DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SKYLLFUL SERVICE AND SKYLLFUL SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
7. LIMITATION OF LIABILITY
7.1. Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER SKYLLFUL NOR ITS SUPPLIERS SHALL BE LIABLE TO SUBSCRIBER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH SKYLLFUL’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SKYLLFUL SERVICE, SKYLLFUL SYSTEM OR DOCUMENTATION OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SKYLLFUL HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
7.2. Amount of Damages. THE MAXIMUM LIABILITY OF SKYLLFUL ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO SKYLLFUL DURING THE SIX (6) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL SKYLLFUL’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE SKYLLFUL’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SKYLLFUL OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.
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.
8.2. 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. TERM AND TERMINATION
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 thirty (30) days prior to the expiration of the then-current term.
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 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, and 13 will survive expiration or termination of this Agreement for any reason.
10.4. Content Retention. Upon termination of the Skyllful Service it is Subscriber’s sole responsibility to back up and retain any Subscriber Content used with the Skyllful Service. After ten (10) days of the termination date Skyllful shall have no obligation to maintain or provide any of Subscriber Content and shall thereafter, unless legally prohibited, delete all of Subscriber Content on the Skyllful System.
11. AVAILABILITY; MODIFICATIONS TO THE SERVICES
11.1. Availability. The availability and functionality of the Skyllful Service depends on various factors, such as software, hardware, cloud service provider, and networks. Skyllful does not warrant or guarantee that the Skyllful Service will be available at all times without disruption.
11.2. Modification of the Services. Skyllful reserves the right to modify the Skyllful Service to correct, enhance, improve, make any other changes to, or suspend, stop, or discontinue functionality or features without notice, at any time and at its sole discretion. Subscriber agrees that Skyllful shall not be liable to Subscriber or to any third party for any modification, suspension, or discontinuance of the Skyllful Service.
12. COPYRIGHT POLICY
Skyllful reserves the right to terminate a Subscriber’s access to and use of the Skyllful Services for any Subscriber who repeatedly infringes third party copyright rights. Without limiting the foregoing, if Subscriber or any Party believes that a copyrighted work has been copied and posted via the Skyllful Service in a way that constitutes copyright infringement, Subscriber or such third party shall provide Skyllful with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location in connection with the Skyllful Service of the copyrighted work that Subscriber claims has been infringed; (c) a written statement by Subscriber or third party that it has a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) the name and contact information, such as telephone number or e-mail address, of Subscriber or third party; and (e) a statement by Subscriber or third party that the above information in Subscriber’s or third party’s notice is accurate and, under penalty of perjury, that Subscriber or third party is the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Skyllful’s Copyright Agent for notice of claims of copyright infringement is as follows:
Attn: Legal Department
1801 Wewatta Street
Denver, CO 80202
13.1. Governing Law; Binding Arbitration; and Class Action Waiver.
a) This Agreement shall be governed by and construed and enforced in accordance with the laws of the state of Colorado, without regard to conflict of laws principles.
b) THE PARTIES AGREE THAT ALL CLAIMS ARISING IN CONNECTION WITH OR UNDER THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
c) Any arbitration shall be conducted by the American Arbitration Association (“AAA”) under its then-applicable Commercial Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, the Parties agree that such hearing shall be conducted in Denver, Colorado. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
d) SUBSCRIBER HEREBY WAIVES, WITH RESPECT TO ANY DISPUTE RELATED TO THIS AGREEMENT: (i) THE RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE OR AS A CLASS MEMBER; AND (ii) THE RIGHT TO JOIN OR CONSOLIDATE CLAIMS WITH CLAIMS OF ANY OTHER PERSON.
e) IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, EACH PARTY HEREBY WAIVES ANY RIGHT TO A JURY TRIAL AND AGREES THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN DENVER, COLORADO. SUBSCRIBER HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
f) Notwithstanding anything in this Agreement to the contrary, Subscriber and Skyllful may seek injunctive relief and any other equitable remedies from a court of competent jurisdiction to protect its Intellectual Property Rights and Confidential Information, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth herein. Subscriber acknowledges that the Skyllful Service, Skyllful System and Documentation contain valuable trade secrets and proprietary information of Skyllful, that any actual or threatened breach of Sections 3 and 8, or any other breach by Subscriber of its obligations with respect to Intellectual Property Rights of Skyllful will constitute immediate, irreparable harm to Skyllful for which monetary damages would be an inadequate remedy. In such case, Skyllful will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any software, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials.
13.2. Export. Subscriber agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Skyllful, or any products utilizing such data, in violation of the United States export laws or regulations.
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 Parties’ rights and remedies under this Agreement are cumulative. If any legal action is brought to enforce this Agreement, the prevailing Party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
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.
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, 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 to the other Party at the address listed on the first page of this Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each Party may change its address for receipt of notice by giving notice of such change 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.
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.
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