Skkynet Master Subscription Agreement

IMPORTANT – READ CAREFULLY: BY TYPING “I AGREE”, CLICKING THE “ACCEPT” BUTTON AND/OR OTHERWISE ACCEPTING THIS MASTER SUBSCRIPTION AGREEMENT THROUGH A PURCHASING DOCUMENT THAT INCORPORATES OR REFERENCES THIS AGREEMENT, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROVIDED THAT IF A CUSTOMER HAS AN AFFILIATE THAT WISHES TO USE THE SERVICE, EACH AFFILIATE SHALL ENTER INTO THIS AGREEMENT SEPARATELY. “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO EACH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “REJECT” BUTTON AND MAY NOT USE THE SERVICES. ANNEX 1 FURTHER DESCRIBES THE DEFINITIONS USED IN THIS AGREEMENT.

THIS AGREEMENT GOVERNS YOUR USE AND/OR ACQUISITION OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR SKKYNET SERVICES, THIS AGREEMENT ALSO GOVERNS THAT FREE TRIAL.

You may not access the Services if you are SKKYNET’s direct competitor, except with SKKYNET’s prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on August 31, 2015. It is effective between you and SKKYNET as of the date of you accepting this Agreement.

TABLE OF CONTENTS

  1. EVALUATION OF SERVICES
  2. PROPRIETARY RIGHTS; RIGHTS OF USE
  3. SKKYNET’s RESPONSIBILITIES
  4. USE OF SERVICES AND CONTENT
  5. NON-SKKYNET PROVIDERS
  6. FEES, PAYMENT AND TAXES
  7. INDEMNIFICATION
  8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
  9. TERMINATION
  10. CONFIDENTIALITY
  11. PRIVACY
  12. LIMITATION OF LIABILITY
  13. NOTICES, GOVERNING LAW AND JURISDICTION
  14. MISCELLANEOUS

ANNEX 1

1. EVALUATION OF SERVICES

If SKKYNET offers you an evaluation trial in a Purchasing Document and should you register on SKKYNET’s website for the evaluation trial, SKKYNET will make one or more Services available to you on a trial basis until the earlier of (a) the end of the trial period for which you registered to use the applicable Service(s), or (b) the start date of any Service subscriptions ordered by you for such Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.

DURING THE EVALUATION TRIAL, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. SKKYNET disclaims any warranty or liability obligations to you of any kind.

Please review the Software Documentation during the trial period so that you become familiar with the features and functions of the Services before you make your purchase.

2. PROPRIETARY RIGHTS; RIGHTS OF USE

  1. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SKKYNET and its licensors reserve all of its right, title and interest in and to the Services and Content, including all of its related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. You retain all ownership and intellectual property rights in and to your data. SKKYNET or its licensors retain all ownership and intellectual property rights to the Services and SKKYNET software. You agree, on behalf of yourself and your Users, not to take any action inconsistent with SKKYNET’s rights.
  2. License by SKKYNET. Upon SKKYNET’s acceptance of your order and for the duration of the Services term defined in the Purchasing Document, you have the non-exclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for your internal business operations and subject to the terms of the Agreement. You may allow your Users to use the Services for this purpose and you are responsible for your Users’ compliance with the Agreement. You acknowledge that SKKYNET has no delivery obligation and will not ship copies of the SKKYNET software to you as part of the Services. You agree that you do not acquire under the Agreement any license to use the SKKYNET software specified in the Purchasing Document in excess of the scope and/or duration of the Services. Upon the end of the Agreement or the Services thereunder, your right to access or use the SKKYNET software specified in the Purchasing Document and the Services shall terminate.
  3. License by You to Host Your Data and Applications. You grant to SKKYNET and its Affiliates a worldwide, limited- term license to host, copy, transmit and display your data, and any Non-SKKYNET Applications and program code created by or for you using a Service, as necessary for SKKYNET to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, SKKYNET acquires no right, title or interest from you or your licensors under this Agreement in or to your data or any Non-SKKYNET Application or program code.

3. SKKYNET’S RESPONSIBILITIES

  1. Provision of Services. SKKYNET will (i) make the Services and Content available to you pursuant to this Agreement and the applicable Purchasing Document, (ii) provide standard support for the Services to you as specified in the Purchasing Document, and (iii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (A) planned downtime (of which SKKYNET shall give at least 8 hours electronic notice and which SKKYNET shall schedule to the extent practicable during the weekend hours), (B) unplanned downtime due to deployment of critical security patches (of which SKKYNET shall not give advance notice), and (C) any unavailability caused by circumstances beyond SKKYNET’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving SKKYNET employees), Internet service provider failure or delay, Non-SKKYNET Application, or denial of service attack. SKKYNET Services are provided through Internet-based applications and periodic disconnections are expected. Accordingly, SKKYNET SERVICES SHOULD NOT BE USED FOR MISSION-CRITICAL APPLICATIONS. Contact us with any questions on whether SKKYNET Services are suitable for your particular usage scenario.
  2. Protection of your Data. SKKYNET will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data, as described in the Software Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of your data by SKKYNET personnel except (i) to provide the Services and prevent or address service or technical problems, (ii) as compelled by applicable law, or (iii) as you expressly permit in writing.
  3. Beta Services. From time to time, SKKYNET may invite you to try Beta Services at no charge. You may accept or decline any such trial in your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. SKKYNET may discontinue Beta Services at any time in its sole discretion and may never make them generally available. SKKYNET will have no liability for any harm or damage arising out of or in connection with a Beta Service.

4. USE OF SERVICES AND CONTENT

Your rights under the Agreement are conditioned on the following:

  1. Subscriptions. Unless otherwise provided in the applicable Purchasing Document, (i) Services are purchased as subscriptions, (ii) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (iii) any added subscriptions will terminate on the same date as the underlying subscriptions.
  2. Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in a Purchasing Document. Unless otherwise specified, (i) a quantity in a Purchasing Document refers to Users and/or usage limits, and the Service may not be accessed by more than that number of Users or used beyond those limits, provided that if a Customer has an Affiliate that wishes to use the Services, each Affiliate shall enter into this Agreement separately. SKKYNET assigns one Services account per Customer legal entity with limits of usage set for each account, (ii) a User’s password may not be shared with any other individual, and shall be changed no less than every six (6) months, and (iii) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service. If you exceed a contractual usage limit, SKKYNET may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding SKKYNET’s efforts, you are unable or unwilling to abide by a contractual usage limit, you will execute a Purchasing Document for additional quantities of the applicable Services promptly upon SKKYNET’s request, and/or pay any invoice for excess usage in accordance with the invoicing and payment terms of this Agreement.
  3. Your Responsibilities. You will (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of your data and the means by which You acquired your data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify SKKYNET promptly of any such unauthorized access or use, (iv) use Services and Content only in accordance with the Software Documentation and applicable laws and government regulations, and (v) comply with terms of service of Non- SKKYNET Applications with which you use Services or Content.
  4. Usage Restrictions. You will not (i) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than you or Users, (ii) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (iii) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) use a Service to store or transmit Malicious Code, (v) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (vi) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (vii) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or User interface thereof, (viii) copy Content except as permitted herein or in a Purchasing Document or the Software Documentation, (ix) frame or mirror any part of any Service or Content, other than framing on your own intranets or otherwise for your own internal business purposes or as permitted in the Software Documentation, (x) access any Service or Content in order to build a competitive product or service, or (xi) reverse engineer any Service (to the extent such restriction is permitted by law).
  5. Removal of Content and Non-SKKYNET Applications. If SKKYNET is required by a licensor to remove Content, or receive information that Content may violate applicable law or third-party rights, SKKYNET may so notify you and in such event you will promptly remove such Content. If SKKYNET receives information that a Non-SKKYNET Application hosted on a Service by you may violate applicable law or third-party rights, SKKYNET may so notify you and in such event you will promptly disable such Non-SKKYNET Application or modify the Non-SKKYNET Application to resolve the potential violation. If you do not take required action in accordance with the above, SKKYNET may disable the applicable Content, Service and/or Non-SKKYNET Application until the potential violation is resolved.
  6. Access to Services. You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.

5. NON-SKKYNET PROVIDERS

  1. Acquisition of Non-SKKYNET products and services. SKKYNET or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services. Any acquisition by you of such Non-SKKYNET products and services, and any exchange of data between you and any Non-SKKYNET provider, is solely between you and the applicable Non-SKKYNET provider. SKKYNET does not warrant or support Non-SKKYNET Applications or other Non-SKKYNET products or services, whether or not they are designated by SKKYNET as “certified” or otherwise, except as specified in a Purchasing Document.
  2. Non-SKKYNET Applications and your data. If you install or enable a Non-SKKYNET Application for use with a Service, you grant SKKYNET permission to allow the provider of that Non-SKKYNET Application to access your data as required for the interoperation of that Non-SKKYNET Application with the Service. SKKYNET is not responsible for any disclosure, modification or deletion of your data resulting from access by a Non-SKKYNET Application.
  3. Integration with Non-SKKYNET Applications. The Services may contain features designed to interoperate with Non-SKKYNET Applications. To use such features, you may be required to obtain access to Non-SKKYNET Applications from their providers, and may be required to grant SKKYNET access to your account(s) on the Non-SKKYNET Applications. If the provider of a Non-SKKYNET Application ceases to make the Non-SKKYNET Application available for interoperation with the corresponding Service features on reasonable terms, SKKYNET may cease providing those Service features without entitling you to any refund, credit, or other compensation.

6. FEES, PAYMENT AND TAXES

  1. Fees. You agree to pay for all Services ordered as set forth in the applicable Purchasing Document. Except as otherwise specified herein or in a Purchasing Document, i) fees are based on Services purchased, (ii) payment obligations are non-cancellable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term. You will reimburse SKKYNET for reasonable expenses related to providing any on-site portion of the Services. Fees for Services listed in a Purchasing Document are exclusive of Taxes and expenses.
  2. Taxes. SKKYNET’s fees do not include any Taxes. You are responsible for paying all Taxes associated with your purchases hereunder. If SKKYNET has the legal obligation to pay or collect Taxes for which you are responsible or SKKYNET makes the good-faith determination that it should collect and remit Taxes for which you are responsible, SKKYNET will invoice you and you will pay that amount unless you provide SKKYNET with a valid tax exemption certificate authorized by the appropriate taxing authority.
  3. Invoicing and Payment. You shall provide to SKKYNET valid, up-to-date and complete credit card details or approved purchase order information acceptable to SKKYNET and any other relevant valid, up-to-date and complete contact and billing details. If you provide credit card details to SKKYNET, you hereby authorise SKKYNET or its Affiliates to bill such credit card, or if you provide a purchase order, for SKKYNET or its Affiliates to invoice on the date(s) specified for the fees payable. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice and if overdue, shall accrue interest at the maximum rate permitted by applicable law. You agree that you have not relied on the future availability of any Services, Software or updates in entering into the payment obligations in the Purchasing Document; however, the preceding does not relieve SKKYNET of its obligation to deliver Services that you have ordered per the terms of the Agreement.
  4. Suspension of Service and Acceleration. If any amount owing by you under this or any other agreement for SKKYNET Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts you have authorized SKKYNET to charge to your credit card), SKKYNET may, without limiting its other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend SKKYNET’s Services to you until such amounts are paid in full. We will give you at least 10 days’ prior notice that your account is overdue, before suspending Services to you.
  5. Payment Processors. SKKYNET may in its discretion (i) use one or more payment processors for payment by credit card, debit card or other electronic payment means; (ii) these payment processors may be subject to change; (iii) share your payment and service usage information with the payment processor and affiliated bank(s) as may be reasonably necessary for payment transactions and/or resolution of disputes; (iv) charge an account set-up fee; (v) require you to accept the payment processors terms and conditions that you may be presented with upon providing your credit card information. Entry of your credit card information constitutes your agreement to any presented payment processors terms and conditions.

7. INDEMNIFICATION

You agree to indemnify, defend, and hold SKKYNET harmless from all claims, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to: (i) breach by you or Users under this Agreement; (ii) your data passing to or from you through the Services or SKKYNET’s network; (iii) Taxes arising from the Software and Services whether now in effect or imposed in the future (excluding Taxes based on SKKYNET’s income); (iv) failure by you to obtain all necessary consents related to your data; (v) claims by third parties arising from you or your Users use of the Software or Services; and (vi) reasonable costs and attorneys’ fees required for SKKYNET to respond to a subpoena, court order or other official government inquiry regarding your data or your or your Users use of the Software or Services.

8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

  1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
  2. Warranties and Disclaimers. SKKYNET DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR FREE OR UNINTERRUPTED, OR THAT SKKYNET WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT SKKYNET DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SKKYNET IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OR FOR ANY MALICIOUS ACCESS TO SKKYNET’S SERVICES, OR FOR ACCIDENTAL DISCLOSURE OF DATA OR CONTENT DUE TO AN ERROR IN THE SKKYNET SERVICES. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. EACH PARTY DISCLAIMS ALL LIABILITYAND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

9. TERMINATION

  1. Term of Agreement. This Agreement commences on the date you first accept it and continues until all subscriptions hereunder have expired or have been terminated.
  2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Purchasing Document. Except as otherwise specified in an Purchasing Document, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
  3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
  4. Refund or Payment upon Termination. If this Agreement is terminated by you in accordance with Section 9c) (Termination), SKKYNET will refund you any prepaid fees covering the remainder of the term of all Purchasing Documents after the effective date of termination. If this Agreement is terminated by SKKYNET in accordance with Section 9c), you will pay any unpaid fees covering the remainder of the term of all Purchasing Documents. In no event will termination relieve you of your obligation to pay any fees payable to SKKYNET for the period prior to the effective date of termination.
  5. Your Data Portability and Deletion. You may export or download your data at any time while you are using the Service. Should you wish to retain your data after termination of the Service, it is your responsibility to export or download your data prior to termination of your Service. After the effective date of termination or expiration of this Agreement, SKKYNET will have no obligation to maintain or provide your data, and will delete or destroy all copies of your data in SKKYNET systems or otherwise in its possession or control as provided in the Software Documentation, unless legally prohibited.

10. CONFIDENTIALITY

  1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes your data; your Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Purchasing Documents (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
  2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Purchasing Document to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this.
  3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

11. PRIVACY

In performing the Services, SKKYNET will comply with applicable privacy laws and any SKKYNET privacy policies in place, which may be found at skkynet.com/legal/, and are incorporated herein by reference. SKKYNET privacy policies are subject to change without notice. SKKYNET reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide. You agree to provide any notices and obtain any consents related to your use of the Services and SKKYNET’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data.

12. LIMITATION OF LIABILITY

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. SKKYNET’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO SKKYNET FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST SKKYNET SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.

13. NOTICES, GOVERNING LAW AND JURISDICTION

  1. General. Who you are contracting with under this Agreement, who you should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts have jurisdiction over any such lawsuit, depend on where you are domiciled. Notwithstanding the foregoing, the Parties may seek injunctive relief in any court of competent jurisdiction.
  2. If You are domiciled in:

    You are contracting with:

    Notices should be addressed to:

    The governing law is:

    The courts having exclusive jurisdiction are:

    The United States of America

    Skkynet, Inc. (USA)

    101 Grovers Mill Road, Suite 200, Lawrenceville, NJ, 08648, USA*

    The laws of Nevada, USA

    Nevada District Courts

    Domiciled outside of the United States of America

    Skkynet Corp. (Canada)

    2233 Argentia Road, Suite 306, Mississauga, ON, L5N 2X7, Canada

    The laws of Ontario, Canada

    Toronto, Ontario

    * with a copy to: Skkynet Cloud Systems, Inc., 2233 Argentia Road, Suite 306, Mississauga, Ontario, L5N 2X7, Canada.

  3. Notice. If you have a dispute with SKKYNET or if you wish to provide a notice under the Indemnification section of this Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to the addresses in the table above. SKKYNET may give notice applicable to SKKYNET’s Agreement by means of a general notice on the SKKYNET portal for the Services, and notices specific to you by electronic mail to your e-mail address on record in SKKYNET’s account information or by written communication sent by first class mail or pre-paid post to your address on record in SKKYNET’s account information.
  4. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law in the table above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
  5. No Agency. For the avoidance of doubt, the parties are entering into this Agreement as principal and not as agent for any other SKKYNET company. Subject to any permitted Assignment under Section 14, the obligations owed by SKKYNET under this Agreement shall be owed to you solely by SKKYNET and the obligations owed by you under this Agreement shall be owed solely to SKKYNET.

14. MISCELLANEOUS

  1. Third Parties. You understand that SKKYNET’s business partners, including any third party firms retained by you to provide Services under or in connection this Agreement, are independent of SKKYNET and are not SKKYNET’s agents. SKKYNET is not liable for nor bound by any acts of any such business partner.
  2. Entire Agreement and Order of Precedence. You agree that the Agreement (including the information which is incorporated into the Agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the Services ordered by you, and that the Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. However, it shall not supersede, but be read together with any other agreements in force between you and SKKYNET not directly dealing with the Services. If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Agreement. It is expressly agreed that the terms of the Agreement, including any SKKYNET Purchasing Document, shall supersede the terms in any purchase order or other non-SKKYNET document and no terms included in any such purchase order or other non-SKKYNET document shall apply to the Services ordered. The Agreement may not be modified and the rights and restrictions may not be altered or waived except in writing and agreement by both parties. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Purchasing Document, (2) this Agreement, and (3) the Software Documentation.
  3. Export. Export laws and regulations of Canada, the United States and/or any other relevant local export laws and regulations apply to the Services. You agree that such export control laws govern your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and you agree to comply with all such export laws and regulations. You agree that no data, information, software and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws. Each party represents that it is not named on any Canada or U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a Canada- or U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any Canada or U.S. export law or regulation.
  4. Force Majeure. Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed Services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services.
  5. Contractor. SKKYNET is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
  6. Consents. You shall obtain at your sole expense any rights and consents from third parties necessary for SKKYNET and its subcontractors to perform the Services under the Agreement.
  7. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Purchasing Documents), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, SKKYNET will refund to you any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
  8. Limitation of Actions. Except for actions for non-payment or breach of SKKYNET’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.
  9. Provisions that survive termination or expiration of the Agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
  10. You as Reference. You agree (i) that SKKYNET may identify you as a recipient of Services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief you profile for use by SKKYNET’s website, or Affiliates sites for promotional purposes without your written consent.

ANNEX 1

Definitions and Descriptions

Agreement” means this Master Subscription Agreement.

Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Beta Services” means SKKYNET’s Services that are not generally available to customers.

Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

Non-SKKYNET Applications” means an Internet- or web-based or offline software application or script that is provided by you or a third party and interoperates with a Service, including, for example, an application that is developed by or for you, is listed on a Marketplace, or is identified as such by SKKYNET.

Purchasing Document” refers to the mechanism or document entered into by the parties that specifies the price, the service and specific terms of use of the service for you. This may also incorporate any other document referenced or incorporated by the Purchasing Document. A Purchasing Document may be a sales order, click-through document specifying the terms of the order and the like. By entering into a Purchasing Document hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

Services” consists of the functionality performed by the SKKYNET software, as well as any other services provided by SKKYNET, as defined in the Purchasing Document. Services exclude your data and Non-SKKYNET Applications.

Software Documentation” refers to the program User manual as well as any other materials provided by SKKYNET as part of the Services.

SKKYNET software” or “Software” refers to the software products owned or licensed by SKKYNET to which SKKYNET grants you access as part of the Services, including Software Documentation, and any software updates provided as part of the Services.

Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever.

User” means an individual who is authorized by you to use a Service, for whom you have ordered the Service, and to whom you (or SKKYNET at your request) have supplied a user identification and password. Users may include, for example, your employees, consultants, contractors and agents, and third parties with which you transact business. A User does not include a legal entity.

you” or “your” refers to the individual or entity that has ordered service from Skkynet, Inc., 101 Grovers Mill Road, Suite 200, Lawrenceville, NJ, 08648, United States of America, or Skkynet Corp. 2233 Argentia Road, Suite 306, Mississauga, Ontario, L5N 2X7, Canada (“SKKYNET”) by executing the Purchasing Document that accompanies and incorporates this SKKYNET Agreement.

your data” or “Content” refers to the data or information provided by or for you or your Users, or collected and processed by or for you that uses, resides or forms part of the Services environment, but excludes Non-SKKYNET Applications.