CLOUD SERVICES AGREEMENT
LAST UPDATED: January 10, 2017
Client must register for a Skycatch account in order to use the Cloud Services. Certain terms, including the Subscription Term and fees related to Client’s subscription are selected and agreed to by Client upon activation of Client’s account (the “Subscription Plan”) and are incorporated into this Agreement.
- Cloud Services
2.1 Generally. Subject to the terms and conditions of this Agreement, Client is permitted to use the functions and features of the Cloud Services made available to Client by Skycatch under Client’s subscription to the Cloud Services pursuant to the Subscription Plan, on a limited, revocable, non-exclusive, non-transferable, and non-sublicensable basis, solely for Client’s own personal use or in support of Client’s internal business operations (collectively “Internal Purposes”) and not to provide services to any third party in support of such third party’s business, provided that Client may use the Cloud Service to collect and upload Raw Data on behalf of a customer of Client. The rights granted in this Section 2.1 may be exercised solely by a single user whom Client has authorized to use the Cloud Services under Client’s account (“Authorized User”).
2.2 Cloud Service Restrictions. Except to the extent (if any) that Client receives prior written permission from Skycatch, Client may not: (i) reverse engineer or decompile the Cloud Services (or any portion thereof), provided that to the extent the foregoing prohibitions are expressly prohibited by applicable statutory law, Skycatch will retain the maximum protection available against reverse engineering or decompiling under applicable law, and further provided that Client will obtain Skycatch’s written consent prior to attempting to reverse engineer or decompile the Cloud Services (if permissible under applicable law to require consent); (ii) modify, create derivative works from, display, mirror, publish, distribute, transmit, transfer, license, sublicense, sell, market, or lease any portion of the Cloud Services or any Skycatch Content (as each is defined below); (iii) use any or all of the Cloud Services or Skycatch Content for third-party training, commercial time-sharing or service bureau use; (iv) use the Cloud Services, Skycatch Content or Processed Data for any illegal or unauthorized purpose, including without limitation any purpose in violation of any Laws (as defined below) in Skycatch’s or Client’s jurisdiction or any other applicable jurisdiction; (v) interrupt or attempt to interrupt operation of the Cloud Services in any way; (vi) remove or obscure any trademark symbols, copyright notices, or other intellectual property rights notices in the Cloud Services or Skycatch Content; (vii) provide or transmit to Skycatch or the Services any Data that contains any personally identifiable information or any other data that is subject to regulation under any data protection legislation applicable to the processing or use of such data, including, without limitation, data that is governed by the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), or the Children’s Online Privacy and Protection Act (COPPA); (viii) interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Cloud Services or attempt to do so; (ix) take any action that imposes, or may impose, as determined in Skycatch’s sole discretion, an unreasonable or disproportionately large load on its infrastructure; (x) upload invalid data, viruses, worms, or other software agents or malware through the Cloud Services; (xi) bypass the measures used to prevent or restrict access to the Cloud Services, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Cloud Services or the Skycatch Content; (xii) use the Cloud Services in, or in connection with, hazardous environments requiring fail-safe performance, such as the operation of nuclear facilities; aircraft navigation, communication, or control systems; direct life support machines; weapons systems; or other uses in which failure of the Cloud Services could lead directly to death, personal injury, or severe physical or environmental damage; or (xiii) publish or disclose any benchmark tests of the Cloud Services.
- Professional Services
Skycatch has no obligation to provide any professional services, including training, under this Agreement. Any professional services to be provided to Client by Skycatch will be subject to the execution of a separate written agreement between the parties governing such professional services.
- Proprietary Rights
4.1 Definitions. As used in this Agreement,
- (a) “Identifiable Data” means Raw Data and Processed Data that identifies Client or any individual.
- (b) “Intellectual Property Rights” means all patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other proprietary or intellectual property rights.
- (c) “Processed Data” means output from the Cloud Services that results from the analysis, processing, modification, stitching, aggregation and other transformation of Raw Data by or for Skycatch, including the conversion of 2-dimensional images to 3-dimensional renderings of Raw Data.
- (d) “Raw Data” means the images and other data collected or received from Client, or from a third party on Client’s behalf, in connection with the Cloud Services prior to analysis and other processing of such images and other data, and includes images and data (a) captured by Skycatch drones such as images of sites, facilities, and/or projects, and (b) otherwise received from Client.
- (e) “Skycatch Content” means all content, data or information made available through or contained within the Cloud Services, including, without limitation, text, documents, charts, logos, buttons, icons, “look and feel” and screenshots, audio and video recordings, graphics, photographs, still and moving images, sound, illustrations, information, and software, including the organization and arrangement of all such content within the Cloud Services, and all derivative works of any such content. Skycatch Content excludes, (x) Raw Data, (y) Processed Data and (z) any Content provided by an External Service (as defined below).
4.2 Rights to Data. Subject to the licenses granted to Skycatch in Sections 4.3 and 4.4 below, Client exclusively owns all right, title, and interest in and to all Raw Data and Processed Data, including all Intellectual Property Rights therein; provided, however, that Skycatch is not responsible for the content of any Raw Data and Skycatch may at any time and without prior notice remove, edit or block any Raw Data that Skycatch determines, in its sole discretion, to be in violation of this Agreement or the Skycatch Terms of Service.
4.3 Use of Data. Client hereby grants to Skycatch a non-exclusive, irrevocable, fully paid and royalty-free, transferable, sublicensable, worldwide license to collect, use, copy, reproduce, process, adapt, modify, publish, transmit, display, distribute and create derivative works of the Raw Data and the Processed Data, and any part thereof, other than Identifiable Data, (a) to the extent necessary or useful for Skycatch to perform the Cloud Services under this Agreement, and (b) in order to create, use, publish and distribute aggregate data, analyses and reports that do not identify Client or any individual. Skycatch will not publish Raw Data or Processed Data without Client’s consent except as described in (a) and (b) above.
4.4 Use of Identifiable Data. Client hereby grants to Skycatch a non-exclusive, irrevocable, fully paid and royalty-free, transferable, sublicensable, worldwide license to collect, use, copy, reproduce, process, adapt, modify, display, and create derivative works of all Identifiable Data (whether Raw Data or Processed Data) for the purpose of internally developing, maintaining, supporting, and improving Skycatch’s technology, products, and services and to create, use, publish and distribute aggregate data, analyses and reports that do not identify Client or any individual. Except as provided herein, Skycatch may disclose Identifiable Data only as Skycatch believes to be necessary or appropriate: (a) to comply with applicable legal requirements, including legal process and law enforcement requests; (b) to protect Skycatch’s rights, property, and operations, including to enforce Skycatch’s agreements, policies, and terms and conditions, and to protect the rights, property and operations of Skycatch’s affiliates, business partners, customers, or others; (c) to protect the personal safety of any individual; and/or (d) to third parties in the event of a sale or transfer of all or a part of Skycatch’s business, assets, or stock.
4.5 Third Parties. The authorizations granted to Skycatch under this Agreement, including under this Section 4, will extend to service providers and other contractors exercising such rights and licenses on Skycatch’s behalf, and Skycatch may share Raw Data, Processed Data, and Identifiable Data with such third parties who provide services on Skycatch’s behalf, subject to the restrictions applicable to Skycatch herein.
4.6 Client’s Representations and Warranties. Client represents and warrants to Skycatch that Client (i) has obtained all required licenses, permits, authorizations, or other regulatory approvals for Client to access and use the Cloud Services and for Skycatch to use, disclose and otherwise process the Raw Data on Client’s behalf as set forth herein, (ii) has obtained all rights, licenses and consents required to grant Skycatch the rights and licenses set forth in this Agreement, including rights to use and disclose Identifiable Data as provided under this Agreement, and (iii) is not now and has not previously been the subject of any enforcement proceeding regarding violation of any regulation by the Federal Aviation Administration or other aviation law or regulation. Client shall comply at all times with all applicable local, state, national, and international laws and regulations related to the operation of unmanned aerial vehicles or Client’s use of the Cloud Services in Client’s territory of operation, including all applicable laws related to privacy. Client will defend, indemnify, and hold harmless Skycatch and its employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers, from and against all claims, actions, demands, losses, liabilities, damages, costs, and expenses (including attorneys’ fees) arising from or relating to any breach or alleged breach of this Section 4.7.
4.7 Reservation of Rights. Other than rights expressly granted to Client in this Agreement, Skycatch retains all of its right, title and interest in and to the Cloud Services and all Skycatch Content, including all Intellectual Property Rights therein. Except as expressly provided in this Agreement, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights. Use of any Skycatch Content or other materials obtained through the Cloud Services for any purpose not expressly permitted by this Agreement is strictly prohibited.
- Confidential Information
Client may obtain confidential and/or proprietary information of Skycatch and/or its licensors through Client’s use of the Cloud Services or otherwise in connection with this Agreement, including, without limitation, Skycatch Content, pricing and other terms or conditions of this Agreement, marketing and sales information relating to the Cloud Services and any other information, technology, ideas or algorithms derived from the Cloud Services or the use thereof (“Confidential Information”). Client will (a) not use any Confidential Information, except to the extent expressly permitted in this Agreement, and (b) not disclose any Confidential Information to any third party, except in connection with Client’s performance of this Agreement and only on a need-to-know basis to its employees, agents and Contractors who have agreed in writing to treat the Confidential Information under terms at least as restrictive as those in this Agreement. Client agrees to take the necessary precautions to maintain the confidentiality of the Confidential Information by using at least the same degree of care as it employs with respect to its own confidential information of a similar nature, but in no case less than reasonable care. The foregoing confidentiality restrictions will not apply to Confidential Information to the extent that Client can demonstrate that: (i) such information is generally available for use and disclosure by the public without any charge or license and without a breach of an obligation of confidentiality to Skycatch or its licensors; (ii) such information was in the possession of Client without an obligation of confidentiality prior to its disclosure by Skycatch (or through the Cloud Services); or (iii) Client rightfully obtained such information from a third party without restriction as to use or disclosure or the breach of an obligation of confidentiality to Skycatch. If Client is required by a court or government agency to disclose Confidential Information, it will provide advance notice to Skycatch before making the disclosure.
- Client’s Account
Client may use the Cloud Services only in compliance with the terms and conditions of this Agreement and all (i) local, state, national, and international laws, statutes, rules, regulations applicable to Client, Client’s products or services, or any data collected or otherwise processed by Client; (ii) judicial, governmental, or administrative order, judgement, decree or ruling or enforceable requirements of any industry self-regulatory body; and (iii) enforceable regulatory and binding guidance and written or authoritative interpretation of any of the foregoing by a regulatory body (collectively, “Laws”). Client is solely responsible for the activity that occurs on Client’s account (including the activities of the Authorized User), and Client must keep Client’s account password secure. Client agrees to not solicit another user's password, or otherwise act in a way that interferes with other users' use of the Cloud Services. Skycatch encourages Client to use "strong" passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with Client’s account. Skycatch cannot guarantee that unauthorized third parties will never be able to defeat Skycatch’s security measures for improper purposes. Client must notify Skycatch immediately of any breach of security or unauthorized use of Client’s account. Skycatch will not be liable for any losses caused by any unauthorized use of Client’s account.
7.1 Billing Policies. Access to or use of the Cloud Services is subject to the payment of all fees and other charges set forth in this Agreement and/or the applicable Subscription Plan (“Fees”), and Client agrees to pay all Fees in accordance with the terms and conditions set forth in this Agreement and the applicable Subscription Plan. Paid Subscription Plans will require Client to provide valid payment account information. Skycatch may add new Cloud Services for additional fees and charges at any time. Skycatch may amend fees and charges for existing Cloud Services, at any time in its sole discretion, and such amended Fees shall go into effect immediately following the then-current Subscription Term.
7.2 No Refund. In no event will Client will be entitled to any refund of Fees.
7.3 Payments; Taxes. All information that Client provides in connection with a purchase or transaction or other monetary transaction interaction with Skycatch and/or the Cloud Services must be accurate, complete, and current. Client shall pay all Fees and any sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by Skycatch by any authority in connection with or arising from the Cloud Services and/or this Agreement, excluding taxes based upon Skycatch’s net income but inclusive of any applicable foreign withholding taxes. Client shall pay each invoice issued by Skycatch by the due date and in the currency specified by Skycatch in the applicable Subscription Plan. 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 rate allowed by law, whichever is less.
By submitting any comments, suggestions, feedback, or ideas about the Cloud Services to Skycatch, including, without limitation, about how to improve the Cloud Services or other Skycatch products or services ("Feedback"), Client agrees that Client’s disclosure is gratuitous, unsolicited and without restriction and will not place Skycatch under any fiduciary or other obligation, and that Skycatch is free to use, disclose (on a non-confidential basis) and otherwise exploit the Feedback without any restrictions or compensation to Client. Client further acknowledges that, by acceptance of Client’s submission of Feedback, Skycatch does not waive any rights to use similar or related ideas previously known to Skycatch, or developed by its employees, or obtained from sources other than Client.
Client acknowledges and agrees that certain Skycatch products and services may be made available to select Skycatch customers on a beta or trial basis. Client acknowledges and agrees that such beta products and services may contain bugs, defects, and errors, and that such products and services are not expected to function fully when made available to Client.
- Third-Party Services
Certain functions and features of the Cloud Services may connect to services on the Internet that are owned or operated by third parties ("External Services"). Skycatch has no control over and is not responsible for External Services or for the operational activities, privacy practices, data collection practices, security or content of any External Services, and External Services may be subject to additional or different third-party terms and conditions and policies (collectively, “Third-Party Terms”). Client agrees to comply with all Third-Party Terms applicable to External Services. Access to any External Services by Client during use of the Cloud Services is at Client’s own risk.
- Data Security and Security Breach
11.1 Skycatch will implement and maintain commercially reasonable administrative, physical, and technical safeguards reasonably designed to prevent any unauthorized use, access, processing, destruction, loss, alteration or disclosure of Client’s confidential account information, Raw Data and Identifiable Data (“Secure Content”). Skycatch makes no representations that its information security program is designed to safeguard sensitive personal information of any kind, including personal information that is subject to regulation under applicable data privacy laws, including, but not limited to the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), or the Children’s Online Privacy and Protection Act (COPPA). Client is solely responsible for compliance with Laws applicable to such sensitive personal information.
1211.2 Skycatch will use commercially reasonable efforts to notify Client following discovery of a breach or compromise of the security, confidentiality, or integrity of Secure Content. Notwithstanding the foregoing, Client will be solely responsible for all costs associated with such a breach or compromise, including but not limited to the cost, timing and content of providing notice to any affected persons or other parties as may be required under applicable data breach notification laws.
During the term of this Agreement and for one year thereafter, Skycatch may, at its expense and during Client’s regular business hours, enter upon Client’s premises to audit Client’s compliance with the terms and conditions of this Agreement. If any such audit reveals any noncompliance by Client with such terms and conditions, Client will, in addition to any other remedies available to Skycatch under this Agreement, applicable Law, or otherwise, reimburse Skycatch for the full cost of such audit. If use not authorized by this Agreement is found or reasonably alleged by Skycatch, then: (a) Client agrees to immediately cease such use immediately upon receipt of Skycatch’s written notification; and (b) Skycatch may terminate this Agreement effective immediately and without liability.
- Term and Termination
13.1 The term for each of the Cloud Services to which Client subscribes is set forth in the Subscription Plan (each a “Subscription Term”). The term of this Agreement shall continue until the last to expire of the Subscription Terms.
13.2 If a party commits a breach of its obligations under this Agreement and fails to cure that breach within thirty (30) days after receiving written notice thereof, the other party may terminate this Agreement immediately upon written notice to the party in breach; provided, however, that such cure period shall not be applicable to Client’s breach of any of the provisions of Sections 2, 4, 5, or 6.
13.3 Sections 2.2, 4, 5, 7, 8, 14, 15, 16, 18, 20, 21, and 22 will survive any termination or expiration of this Agreement. Upon termination or expiration of this Agreement, Client’s account, or Client’s subscription, Client will immediately cease all use of the Cloud Services, Client’s access to Data will immediately cease, and all amounts due to Skycatch under this Agreement for Cloud Services provided by Skycatch prior to the effective date of termination shall become immediately due and payable.
- No Warranty
THE CLOUD SERVICES, SKYCATCH CONTENT, AND PROCESSED DATA ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED. SKYCATCH MAKES NO WARRANTY THAT (A) THE CLOUD SERVICES WILL MEET CLIENT’S REQUIREMENTS, (B) THE CLOUD SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, INCLUDING ANY PROCESSED DATA, WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CLIENT THROUGH THE CLOUD SERVICES WILL MEET CLIENT’S EXPECTATIONS, OR (E) ANY ERRORS IN THE CLOUD SERVICES WILL BE CORRECTED. SKYCATCH DOES NOT MAKE ANY GUARANTEES AS TO THE ACCURACY OR RELIABILITY OF ANY DATA GENERATED BY THE CLOUD SERVICES FOR ANY PURPOSE, INCLUDING, WITHOUT LIMITATION, TEST FAILURE OR SUCCESS, ERRORS, SCREENSHOTS, DEVICE DATA, MARKET DATA, MEMORY USAGE OR APPLICATION EXECUTION TIMINGS. SKYCATCH MAKES NO REPRESENTATION THAT THE SKYCATCH CONTENT OR THE CLOUD SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN LOCATIONS IN ANY SPECIFIC GEOGRAPHY. IF CLIENT CHOOSES TO ACCESS THE CLOUD SERVICES, CLIENT DOES SO AT CLIENT’S OWN INITIATIVE AND RISK AND IS RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SKYCATCH ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR LOSS OF DATA OR CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM CLIENT’S ACCESS TO OR USE OF THE CLOUD SERVICES, INCLUDING ANY USE OF THE CLOUD SERVICES IN CONNECTION WITH UNMANNED AERIAL VEHICLES OR OTHER HARDWARE, WHETHER OR NOT MANUFACTURED OR PURCHASED FROM SKYCATCH; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF SKYCATCH’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, MALWARE OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE CLOUD SERVICES BY ANY THIRD PARTY; AND (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT PROVIDED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE CLOUD SERVICES.
- Limitation of Liability
15.1 LIABILITY CAP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SKYCATCH, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT OR RESULTING FROM CLIENT’S USE OF, OR INABILITY TO USE, THE CLOUD SERVICES (WHETHER IN ONE INSTANCE OR A SERIES OF INSTANCES) IN AN AMOUNT EXCEEDING THE FEES PAID BY CLIENT FOR THE CLOUD SERVICES THAT WERE THE SUBJECT OF SUCH CLAIM IN THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE APPLICABLE CAUSE OF ACTION, OR US$50.00 (IF CLIENT RECEIVED THE SERVICES FREE OF CHARGE).
15.2 DISCLAIMER OF CONSEQUENTIAL AND OTHER LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SKYCATCH, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, CONTENT OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE CLOUD SERVICES OR ANY SKYCATCH CONTENT. UNDER NO CIRCUMSTANCES WILL SKYCATCH BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY ARISING OUT OF OR RELATING TO MALWARE, HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE CLOUD SERVICES OR CLIENT’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THIS SECTION 15 (LIMITATION OF LIABILITY) APPLIES WHETHER THE ALLEGED LIABILITY IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY OR BASIS, AND EVEN IF SKYCATCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
Upon request of Skycatch, Client agrees to defend (including responsibility for all court costs, costs of professionals and reasonable attorneys’ fees) and/or settle any and all claims, suits, actions or proceedings brought by a third party (including governmental entities) against Skycatch, its affiliates, licensors and suppliers, and each of their respective employees, contractors, agents, officers and directors arising from or relating to (a) any breach or alleged breach by Client or any Authorized User of this Agreement, (b) any representation by Client regarding the accuracy or reliability of any Data, Skycatch Content, or Processed Data, or (c) Client’s use of the Cloud Services, including any use of the Cloud Services in connection with unmanned aerial vehicles or other hardware, whether or not manufactured by or purchased from Skycatch (collectively “Claim(s)”), and will pay all damages, fines, penalties, and other liabilities finally awarded or settlement amounts entered into to the extent based upon such a Claim. Skycatch agrees to give Client: (i) prompt written notice of the Claim, (ii) information and cooperation in connection with the defense and/or settlement of the Claim (at Client’s expense) as reasonably required by Client, and (iii) full (and sole) authority to defend or settle the claim or suit, provided that Skycatch may participate with counsel of its own choosing at its own expense and further provided that any portion of any settlement or compromise which constitutes an admission or requires contribution from Skycatch will be subject to the prior written approval of Skycatch. Failure to so notify Client will not diminish indemnity obligations hereunder except to the extent such delay actually prejudices defense of such matter.
- Modifications to the Cloud Services
Client acknowledge that Skycatch may, without prior notice or liability to Client, change the Cloud Services; stop providing the Cloud Services or features of the Cloud Services, to Client or to users generally; or create usage limits for the Cloud Services. If Client does not agree to any of these changes, Client’s sole recourse will be to discontinue Client’s use of and access to the Cloud Services.
- Restricted Rights
If the Cloud Services being offered are licensed to the United States government or any agency thereof, the Cloud Services, including any related technical data or accompanying documentation, are "commercial items" as defined in 48 C.F.R. §2.101, and includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. The use, duplication, reproduction, release, modification, disclosure or transfer of the Services and any technical data or documentation relating thereto or derived therefrom, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-1, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable. The commercial items, commercial computer software and commercial computer software documentation are being licensed to U.S. Government end users (i) only as commercial items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. This is in lieu of, and supersedes, any other Federal Acquisition Regulation (“FAR”), the Defense FAR Supplement (“DFAR”), or other agency supplemental clause or provision that address Government rights in computer software or technical data. Any use, reproduction, release, performance, display or disclosure of the Services and/or any related technical data or accompanying documentation by or for the U.S. Government will be governed solely by the terms of this Agreement, to the extent permitted by law.
- Export Compliance
The Cloud Services and technical information of Skycatch provided under this Agreement may be subject to U.S. export and import control Laws and the trade Laws of other countries. Client agrees to comply with all export and import control Laws and to obtain any required licenses or classification to export, re-export or import the Cloud Services and any technical information provided by Skycatch. Client agrees not to export or re-export to entities on the current U.S. export exclusion lists or to any embargoed or terrorist countries as specified in the U.S. export Laws or control Laws of other countries. Client will not use the Cloud Services for prohibited nuclear, missile, or chemical biological weaponry end uses. Skycatch assumes no responsibility for Client’s failure to obtain any necessary export approvals or for Client’s violation of any export or import control Laws.
- Applicable Law; Dispute Resolution
20.1 Choice of Law. This Agreement is and will be governed by and construed under the laws of the State of California, USA, without giving effect to conflicts of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
20.2 Dispute Resolution. If Client is an entity organized and existing under the laws of one of the fifty (50) United States or an individual residing in the United States, then Section 20.2(a) will be effective and Section 20.2(b) will have no force or effect. Otherwise, Section 20.2(b) will be effective and Section 20.2(a) will have no force or effect.
(a) Client is a US entity or resident. Any action arising out of or relating to this Agreement may be brought only before any federal or state court of competent jurisdiction located in San Francisco County, California, and Client consents to the exclusive jurisdiction and venue of such courts and waives any objections of improper venue or inconvenient forum. Notwithstanding the foregoing, Skycatch may initiate litigation in any court of competent jurisdiction seeking any remedy in equity, including the issuance of a preliminary, temporary or permanent injunction, or to specifically enforce its rights under this Agreement (including under Sections 4 and 5).
(b) Client is not US entity or resident. The parties hereby consent to resolve any dispute arising hereunder or related hereto by submission of such dispute to binding arbitration in accordance with the JAMS Arbitration Rules (the "Rules") of JAMS, Inc., by an arbitral tribunal composed of three arbitrators, who will be former judges with experience with the computer software industry. One arbitrator shall be nominated by the party initiating the request for arbitration, the second nominated by the other party, and the third, who shall act as the presiding arbitrator of the arbitral tribunal, nominated jointly by the other two arbitrators. Arbitration proceedings may be commenced by either party by providing written notice to the other party. All arbitration proceedings will be held in San Francisco, California, USA (provided that proceedings may be conducted by telephone conference call with the consent of the parties and the arbitrators) and will be conducted in the English language. All rulings by the arbitrator shall be final. The parties agree that the arbitrator will be empowered to grant injunctive or other equitable relief. The allocation of expenses of the arbitration, including reasonable attorneys’ fees, shall be determined by the arbitrator, or, in the absence of such determination, each party shall pay its own expenses. Notwithstanding the foregoing, (i) Skycatch may initiate litigation in any court of competent jurisdiction seeking any remedy in equity, including the issuance of a preliminary, temporary or permanent injunction, or to specifically enforce its rights under this Agreement; (ii) judgment on the arbitration award granted in any arbitration hereunder may be entered in, and the parties shall have the right to seek enforcement thereof by, any court of competent jurisdiction (and any additional expenses incurred in enforcing the arbitration award will be charged against the party that resists its enforcement); and (iii) Client hereby consents to the jurisdiction of any federal or state court located in the State of California, USA, and waive any objections of improper venue or inconvenient forum, in connection with clauses (i) or (ii) above.
- Publicity. Unless Client explicitly opts out by notifying Skycatch in writing, Client agrees to be identified as a customer of Skycatch and that Skycatch may, in its marketing materials and on its web sites, refer to Client by name, trade name and trademark.
This Agreement, and any rights granted hereunder, may not be transferred or assigned by Client, but may be assigned by Skycatch without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. Skycatch shall not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, or any other causes that are beyond the reasonable control of Skycatch. Skycatch may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to Client via email notice, written or hard copy notice, or through posting of such notice on Skycatch’s website, as determined by Skycatch in its sole discretion. Skycatch reserves the right to determine the form and means of providing notifications to its customers. Skycatch is not responsible for any automatic filtering Client or Client’s network provider may apply to email notifications Skycatch sends to the email address Client provides to Skycatch. In the event that any provision of this Agreement shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of this Agreement. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Skycatch’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. This Agreement, together with the applicable Subscription Plan, and all amendments constitutes the entire agreement between Client and Skycatch concerning the Cloud Services and governs Client’s use of the Cloud Services, superseding any prior agreements (including, but not limited to, any prior versions of this Agreement). Skycatch reserves the right to seek all remedies available by law and in equity for any violation of this Agreement.