Skysize Platform Terms of Service

1.1 Services Use. During the Term, Skysize will provide the Services in accordance with the Agreement, including the SLAs, and Customer may use the Services, and integrate the Services into any Customer Application that has material value independent of the Services, in accordance with the Agreement.

1.2 Accounts. Customer must have an Account to use the Services and is responsible for the information it provides to create the Account, the security of its passwords for the Account, and for any use of its Account. Skysize has no obligation to provide multiple accounts to Customer.

1.3 Modifications.

(a) To the Services. Skysize may make commercially reasonable updates to the Services from time to time. Skysize will inform Customer if Skysize makes a material change to the Services that has a material impact on Customer's use of the Services provided that Customer has subscribed with Skysize to be informed about such change.

(b) To the Agreement. Services may make changes to this Agreement (including the URL Terms) and pricing from time to time. Unless otherwise noted by Services, material changes to the Agreement will become effective 30 days after they are posted, except to the extent the changes apply to new functionality or the Cloud Data Processing Addendum, or are required by applicable law, in which case they will be effective immediately. Services will provide at least 90 days' advance notice for materially adverse changes to any SLAs by (i) sending an email to the Notification Email Address; (ii) posting a notice to the applicable SLA webpage. If Customer does not agree to the revised Agreement, Customer may stop using the Services. Customer may also terminate this Agreement for convenience under Section 8.4 (Termination for Convenience). Customer's continued use of the Services after such material change will constitute Customer's consent to such changes. Services will post any modification to this Agreement to https://www.skysize.io/terms/.

(c) To the Cloud Data Processing Addendum. Skysize may only change the Cloud Data Processing Addendum where such change is required to comply with applicable law, is expressly permitted by the Cloud Data Processing Addendum, or:

(i) is commercially reasonable;

(ii) does not result in a material reduction of the security of the Services;

(iii) does not expand the scope of or remove any restrictions on Skysize's processing of "Customer Personal Data," as described in the "Scope of Processing" Section of the Cloud Data Processing Addendum; and

(iv) does not otherwise have a material adverse impact on Customer's rights under the Cloud Data Processing Addendum.

If Skysize makes a material change to the Cloud Data Processing Addendum that has a material impact on Customer's use of the Services, Skysize will inform Customer of the change in accordance with Section 1.3(b).

(d) Discontinuation of Services. Skysize will notify Customer at least 12 months before discontinuing any Service (or associated material functionality) unless Skysize replaces such discontinued Service or functionality with a materially similar Service or functionality. Nothing in this Section 1.3(d) (Discontinuation of Services) limits Skysize's ability to make changes required to comply with applicable law, address a material security risk, or avoid a substantial economic or material technical burden. This Section 1.3(d) (Discontinuation of Services) does not apply to pre-general availability Services, offerings, or functionality.

1.4 Software. If Skysize makes Software available to Customer, including third-party software, Customer's use of any Software is subject to the applicable provisions in the Service Specific Terms.

2.1 Online Billing. At the end of the applicable Fee Accrual Period or as otherwise stated by Skysize in the Admin Console, Skysize will issue an electronic bill to Customer for all charges based on Customer's use of the Services during the applicable Fee Accrual Period (including, if applicable, the relevant Fees for TSS). If Skysize reasonably determines based on evidence available to Skysize that Customer is at risk of non-payment or that Customer’s Account is potentially fraudulent, then Skysize may invoice Customer more frequently. Customer will pay all Fees in the currency stated in the invoice. If Customer elects to pay by credit card, debit card, or other non-invoiced form of payment, Skysize will charge (and Customer will pay) all Fees immediately at the end of the Fee Accrual Period. If Customer elects to pay by invoice (and Skysize agrees), all Fees are due as stated in the invoice. Unless required by law, Customer's obligation to pay all Fees is non-cancellable. Skysize's measurement of Customer's use of the Services is final. Skysize has no obligation to provide multiple bills. Payments made via wire transfer must include the bank information provided by Skysize.

2.2 Taxes.

(a) Customer is responsible for any Taxes, and will pay Skysize for the Services without any reduction for Taxes. If Skysize is obligated to collect or pay any Taxes, the Taxes will be invoiced to Customer and Customer will pay such Taxes to Skysize, unless Customer provides Skysize with a timely and valid tax exemption certificate in respect of those Taxes.

(b) Customer will provide Skysize with any applicable tax identification information that Skysize may require under applicable law to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Skysize for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Customer.

2.3 Payment Disputes & Refunds. Any payment disputes must be submitted in good faith before the payment due date. If Skysize, having reviewed the dispute in good faith, determines that certain billing inaccuracies are attributable to Skysize, Skysize will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If a disputed invoice has not yet been paid, Skysize will apply the credit memo amount to a disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. Refunds given by Skysize for billing inaccuracies under this Section will only be in the form of credit for the Services. Nothing in this Agreement obligates Skysize to extend credit to any party.

2.4 Delinquent Payments; Suspension. Late payments (which, for clarity, do not include amounts subject to a good faith payment dispute submitted before the payment due date), may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Skysize in collecting such delinquent amounts. Further, in the event of any late payment for the Services, Skysize may Suspend the Services.

2.5 No Purchase Order Number Required. Customer is obligated to pay all applicable Fees without any requirement for Skysize to provide a purchase order number on Skysize's invoice (or otherwise).

3.1 Compliance. Customer will (a) ensure that Customer and its End Users' use of the Services complies with the Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Services, and (c) promptly notify Skysize of any unauthorized use of, or access to, the Services, Account, or Customer's password of which Customer becomes aware. Skysize reserves the right to investigate any potential violation of the AUP by Customer, which may include reviewing Customer Applications, Customer Data, or Projects.

3.2 Privacy. Customer is responsible for any consents and notices required to permit (a) Customer's use and receipt of the Services and (b) Skysize's accessing, storing, and processing of data provided by Customer (including Customer Data, if applicable) under the Agreement.

3.3 Restrictions. Customer will not, and will not allow End Users to, (a) copy, modify, or create a derivative work of the Services; (b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the Services (except to the extent such restriction is expressly prohibited by applicable law); (c) sell, resell, sublicense, transfer, or distribute any or all of the Services; or (d) access or use the Services (i) for High Risk Activities; (ii) in violation of the AUP; (iii) in a manner intended to avoid incurring Fees (including creating multiple Customer Applications, Accounts, or Projects to simulate or act as a single Customer Application, Account, or Project (respectively)) or to circumvent Service-specific usage limits or quotas; (iv) to engage in cryptocurrency mining without Skysize's prior written approval; (v) to operate or enable any telecommunications service or in connection with any Customer Application that allows End Users to place calls or to receive calls from any public switched telephone network, unless otherwise described in the Service Specific Terms; (vi) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (vii) in a manner that breaches, or causes the breach of, Export Control Laws; or (viii) to transmit, store, or process health information subject to United States HIPAA regulations except as permitted by an executed HIPAA BAA.

3.4 Documentation. Skysize may provide Documentation for Customer's use of the Services.

3.5 Copyright. Skysize responds to notices of alleged copyright infringement and terminates the Accounts of repeat infringers in appropriate circumstances as required to maintain safe harbor for online service providers under the U.S. Digital Millennium Copyright Act.

3.6 Third-Party Content Enforcement. If Customer’s primary use of the Services is to host third-party content or facilitate the sale of goods or services between third parties on its platform, Customer will take the following steps to enforce compliance with the AUP: (a) publish policies defining what content is prohibited on its platform (e.g., illegal content); (b) maintain a publicly accessible method (e.g., webform or email alias) to receive notices of violation of that policy (in addition to a monitored communications channel for Skysize); and (c) promptly review and address any such notices, and remove content where appropriate.

4.1 AUP Violations. If Skysize becomes aware that Customer's or any End User's use of the Services violates the AUP, Skysize will notify Customer and request that Customer correct the violation. If Customer fails to correct the violation within 24 hours of Skysize's request, then Skysize may Suspend all or part of Customer's use of the Services until the violation is corrected.

4.2 Other Suspension. Notwithstanding Section 4.1 (AUP Violations), Skysize may immediately Suspend all or part of Customer's use of the Services if (a) Skysize reasonably believes Suspension is needed to protect the Services, Skysize’s infrastructure supporting the Services, or any other customer of the Services (or their end users); (b) there is suspected unauthorized third-party access to the Services; (c) Skysize reasonably believes that immediate Suspension is required to comply with any applicable law; or (d) Customer is in breach of Section 3.3 (Restrictions) or the Service Specific Terms. Skysize will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer's request, Skysize will, unless prohibited by applicable law, notify Customer of the basis for the Suspension as soon as is reasonably possible.

5.1 Intellectual Property Rights. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer retains all Intellectual Property Rights in Customer Data and Customer Applications, and Skysize retains all Intellectual Property Rights in the Services and Software.

5.2 Protection of Customer Data. Skysize will only access, use, and otherwise process Customer Data in accordance with the Cloud Data Processing Addendum and will not access, use, or process Customer Data for any other purpose. Skysize has implemented and will maintain technical, organizational, and physical measures to protect Customer Data, as further described in the Cloud Data Processing Addendum.

5.3 Customer Feedback. At its option, Customer may provide feedback or suggestions about the Services to Skysize ("Feedback"). If Customer provides Feedback, then Skysize and its Affiliates may use that Feedback without restriction and without obligation to Customer.

6.1 By Customer. Customer is responsible for technical support of its Customer Applications and Projects.

6.2 By Skysize. Skysize will provide technical support for the Services in accordance with the Technical Support Services Guidelines.

7.1 Obligations. The recipient will only use the disclosing party's Confidential Information to exercise the recipient's rights and fulfill its obligations under the Agreement, and will use reasonable care to protect against the disclosure of the disclosing party's Confidential Information. The recipient may disclose Confidential Information only to its Affiliates, employees, agents, or professional advisors ("Delegates") who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that its Delegates use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement.

7.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient or its Affiliate may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient or its Affiliate uses commercially reasonable efforts to (a) promptly notify the other party before any such disclosure of its Confidential Information, and (b) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the recipient determines that complying with (a) and (b) could (i) result in a violation of Legal Process; (ii) obstruct a governmental investigation; or (iii) lead to death or serious physical harm to an individual.

8.1 Agreement Term. The term of this Agreement (the "Term") will begin on the Effective Date and continue until the Agreement is terminated as stated in this Section 8 (Term and Termination).

8.2 Termination for Breach. To the extent permitted by applicable law, either party may terminate this Agreement immediately on written notice if (a) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.

8.3 Termination for Inactivity. Skysize reserves the right to terminate the provision of the Services to a Project upon 30 days' advance notice if, for a period of 60 days (a) The Project has had no network activity and (b) such Project has not incurred any Fees for such Services.

8.4 Termination for Convenience. Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and, upon termination, must cease use of the applicable Services. Skysize may terminate this Agreement for its convenience at any time with 30 days' prior written notice to Customer.

8.5 Termination Due to Applicable Law; Violation of Laws. Skysize may terminate this Agreement immediately on written notice if Skysize reasonably believes that (a) continued provision of any Service used by Customer would violate applicable law(s) or (b) Customer has violated or caused Skysize to violate any Anti-Bribery Laws or Export Control Laws.

8.6 Effect of Termination. If the Agreement is terminated, then (a) all rights and access to the Services will terminate (including access to Customer Data, if applicable), unless otherwise described in this Agreement, and (b) all Fees owed by Customer to Skysize are immediately due upon Customer’s receipt of the final electronic bill or as stated in the final invoice.

Customer may state publicly that it is a Skysize customer and display Skysize Brand Features in accordance with the Trademark Guidelines. Skysize may use Customer's name and Brand Features in online or offline promotional materials of the Services. Each party may use the other party’s Brand Features only as permitted in the Agreement. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features.

Each party represents and warrants that (a) it has full power and authority to enter into the Agreement, and (b) it will comply with all laws applicable to its provision, receipt, or use of the Services, as applicable.

13.1 Skysize Indemnification Obligations. Skysize will defend Customer and its Affiliates using the Services under Customer’s Account and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that any Service or any Skysize Brand Feature, in each case used in accordance with the Agreement, infringes the third party's Intellectual Property Rights.

13.2 Customer Indemnification Obligations. Customer will defend Skysize and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from (a) any Customer Application, Project, Customer Data, or Customer Brand Features; or (b) Customer's or an End User's use of the Services in breach of the AUP or Section 3.3 (Restrictions).

13.3 Exclusions. Sections 13.1 (Skysize Indemnification Obligations) and 13.2 (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of the Agreement, (b) a combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement, or (c) in the case of Skysize or any of its Affiliates as the indemnifying party, any Services provided to Customer free of charge.

13.4 Conditions. Sections 13.1 (Skysize Indemnification Obligations) and 13.2 (Customer Indemnification Obligations) are conditioned on the following:

(a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 13.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 13.1 (Skysize Indemnification Obligations) or 13.2 (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.

(b) Any indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.

13.5 Remedies.

(a) If Skysize reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Skysize may, at its sole option and expense (i) procure the right for Customer to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative.

(b) If Skysize does not believe the remedies in Section 13.5(a) are commercially reasonable, then Skysize may Suspend or terminate Customer's use of the impacted Services.

13.6 Sole Rights and Obligations. Without affecting either party's termination rights and to the extent permitted by applicable law, this Section 13 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 13 (Indemnification).

14.1 Notices. Under the Agreement, notices to Customer must be sent to the Notification Email Address and notices to Skysize must be sent to [email protected]. Notice will be treated as received when the email is sent. Customer is responsible for keeping its Notification Email Address current throughout the Term.

14.2 Emails. The parties may use emails to satisfy written approval and consent requirements under the Agreement.

14.3 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of this Agreement, and (b) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.

14.4 Change of Control. If a party experiences a change of Control other than as part of an internal restructuring or reorganization (for example, through a stock purchase or sale, merger, or other form of corporate transaction), that party will give written notice to the other party within 30 days after the change of Control.

14.5 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.

14.6 Subcontracting. Skysize may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.

14.7 No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.

14.8 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

14.9 Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

14.10 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

14.11 Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.

14.12 U.S. Governing Law.

(a) For U.S. City, County, and State Government Entities. If Customer is a U.S. city, county, or state government entity, then the Agreement will be silent regarding governing law and venue.

(b) For U.S. Federal Government Entities. If Customer is a U.S. federal government entity, then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW, (I) THE LAWS OF THE STATE OF CALIFORNIA (EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW; AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.

(c) For All Other Entities. If Customer is any entity not identified in Section 14.12(a) (U.S. Governing Law for U.S. City, County, and State Government Entities) or (b) (U.S. Governing Law for Federal Government Entities), then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING THAT STATE'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.

14.13 Amendments. Except as stated in Section 1.4(b) (Modifications: To the Agreement) or (c) (Modifications: To the Cloud Data Processing Addendum), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.

14.14 Survival. The following Sections will survive expiration or termination of this Agreement: Section 2 (Payment Terms), Section 5 (Intellectual Property Rights; Protection of Customer Data; Feedback), Section 7 (Confidential Information), Section 8.6 (Effect of Termination), Section 11 (Disclaimer), Section 12 (Limitation of Liability), Section 13 (Indemnification), and Section 14 (Miscellaneous).

14.15 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in this Agreement. The URL Terms are incorporated by reference into the Agreement. After the Effective Date, Skysize may provide an updated URL in place of any URL in this Agreement.

14.16 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order (of decreasing precedence): the Cloud Data Processing Addendum, the remainder of the Agreement (excluding the URL Terms), and the URL Terms (excluding the Cloud Data Processing Addendum).

14.17 Headers. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.

14.18 Conflicting Languages. If this Agreement is translated into any language other than English, and there is a discrepancy between the English text and the translated text, the English text will govern unless expressly stated otherwise in the translation.

14.19 Definitions.