License to Use API Materials and SkySlope Services. Subject to the terms and conditions of this Agreement, SkySlope grants solely to Licensee a non-exclusive, worldwide, non-transferable, limited license to use the API Materials and SkySlope Services (as identified on the Services Order Form) only as necessary to develop, test, and integrate only the Licensee Application identified on the Services Order Form with the SkySlope Services via the application program interface of the API Materials as specified by SkySlope (the “License”). No right to sub-license or sub-let is granted under this Agreement. The term “API Materials” means the application programming interface (API) identified in the Services Order Form along with all software developer kits, documentation, API Credentials (as defined below), and any software, materials or data that SkySlope makes available to Licensee, in its sole discretion. Licensee’s use of the SkySlope Services under the License is limited to use by Licensee, its employees, agents and contractors (collectively, “Users”). Licensee shall ensure and guarantee that each User complies with all of the terms and conditions of this Agreement, including the warranties and restrictions set forth in Sections 2, 3, 7, 9, 11, 15, 16, 22, 23 and 32. Licensee shall be responsible and jointly and severally liable for the acts and omissions of all Users and their compliance with this Agreement. SkySlope has no liability for or relating to any disputes between Licensee and any Users. Licensee shall take all steps necessary to protect all User logins and passwords, to safeguard the security and integrity of the SkySlope Services and API Materials, and to protect against unauthorized access and use. Licensee shall immediately notify SkySlope of any violation of the foregoing. Any access to the SkySlope Services using Licensee’s user logins and passwords shall be deemed access by Licensee. All use of the SkySlope Services must comply with the user policies established by SkySlope from time to time.
API Credentials. To use the API Materials, SkySlope will provide Licensee with certain credentials to permit access, such as a developer key token (the “API Credentials”). Licensee will only use the API Credentials, and the License only grants the right to use the API Credentials, for the Licensee Application. SkySlope may contact Licensee from time to time about Licensee’s use of the API Materials and/or the API Credentials, and Licensee agrees to be responsive to inquiries from SkySlope. Licensee is responsible for the confidentiality of the API Credentials and may not share them with any other developer or third party. Licensee shall take all steps necessary to protect all API Credentials, to safeguard the security and integrity of the API Materials and the SkySlope Services, and to protect against unauthorized access and use. Licensee shall keep its registration, site, application and service information accurate, complete, and current. Licensee is responsible and liable for all use that occurs under the API Credentials, including any activities by Licensee or its employees, contractors or agents. Licensee will contact SkySlope immediately if it has reason to believe there has been an unauthorized use of or access to the API Credentials. All use of the API Materials and if applicable, the SkySlope Services, must comply with the user policies established by SkySlope from time to time.
Restrictions on Use. Licensee and its Users shall not: (a) access or use the API Materials or SkySlope Services in violation of any state, federal or local laws, rules or regulations; (b) access or use the API Materials or SkySlope Services in any manner that: (i) compromises, breaks or circumvents any of SkySlope’s technical processes or security measures associated with the SkySlope Services, the API Credentials, or the API Materials; (ii) poses a security vulnerability to Users, Customers, Customer Data, SkySlope Data or to the SkySlope Services, or (iii) tests the vulnerability of the SkySlope Services or SkySlope’s systems, equipment or networks; (c) access the API Materials or SkySlope Services in order to replicate or compete with the SkySlope Services or the API Materials; (d) attempt to translate, reverse engineer, decompile, disassemble, circumvent the security and restrictions, or otherwise attempt to discover the source code, object code, trade secrets, or know-how, or underlying structure, ideas, or algorithms of the SkySlope Services or the API Materials; (e) attempt to use the API Materials or SkySlope Services in a manner that exceeds rate or reasonable usage limits, or constitutes excessive or abusive usage; (f) reproduce, duplicate, disseminate, copy, modify, translate the API Materials or SkySlope Services; (g) sell, rent, lease, loan, distribute, pledge, assign, or otherwise transfer or encumber rights to the API Materials or SkySlope Services, or otherwise disclose the API Materials or SkySlope Services to any third party or use the same for the purpose of commercial timesharing, service bureau or other rental or sharing agreements with or for the benefit of any third party or customer; (h) access or use the API Materials or SkySlope Services for any purpose other than as expressly authorized by the License, including to conduct electronic, individual or bulk transfers, migrations, downloads or extractions of Customer Data, SkySlope Data or any other data, records, files or information from the Services; (i) remove or otherwise alter any proprietary notices or labels from the API Materials or the SkySlope Services or any portion thereof; (j) use the API Materials or SkySlope Services for web scraping, web harvesting, or web data extraction, for advertising, solicitation or promotional purposes; (k) use the API Materials or the SkySlope Services if Licensee is a competitor of SkySlope, except with SkySlope’s prior written consent, (l) design, build or develop any product or service that competes against the API Materials or SkySlope Services or that provides the same or similar services or functionality as the API Materials or SkySlope Services; (m) violate the security of any computer network, or crack, hack or circumvent any passwords or security encryption codes, (n) run any mail-list, listserv, any form of auto-responder or “spam” on the API Materials or the SkySlope Services, or any processes that run or are activated while Licensee and/or the applicable User is not logged into the API Materials and/or the SkySlope Services, or that otherwise interferes with the proper working of the API Materials and the SkySlope Services (including, without limitation, by placing an unreasonable load on the API Materials’ and/or the SkySlope Services’ infrastructure), (o) through the use of manual, automated or any other means, engage in any action that “crawls,” “scrapes,” or “spiders” any page, data or portion of or relating to the API Materials or the SkySlope Services, (p) perform, monitor, analyze or disclose the API Materials’ or the SkySlope Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes, or (q) use the API Materials or the SkySlope Services to create any other product or service other than as permitted by the License. Licensee will engage in activities under the License and use the API Materials only in compliance with: (i) the Services Order Form; (ii) the License granted hereunder; and (iii) in accordance with all applicable state, federal and local laws, rules and regulations.
Updates. During the Term of this Agreement, SkySlope may maintain, correct and modify, and may upgrade and update the API Materials and/or the SkySlope Services (collectively, “Updates”); provided, however, that the nature, substance, content, timing, manner and release of Updates, if any, shall be in the sole and absolute discretion of SkySlope. Updates may also reflect changes in, among other things, laws, regulations, rules, technology, industry practices and patterns of system use. Updates may also include additional features, functionality or services that may be subject to additional fees and charges.
SkySlope Data. Licensee’s use of the API Materials or SkySlope Services may include access to information, data (other than Customer Data (as hereinafter defined)), materials and content stored, generated, input, output or otherwise provided or available in connection with the API Materials or the SkySlope Services (collectively, the “SkySlope Data”). The SkySlope Data is included within the definition of the SkySlope Services and is owned by SkySlope. Licensee shall not collect, use, store, aggregate or transfer any SkySlope Data or Customer Data in any manner except as expressly permitted in this Agreement by the License. Licensee agrees not to transfer, license, market, sell, lease, or disclose any SkySlope Data or Customer Data to any third parties, except as expressly permitted by this Agreement, or the owner of Customer Data, and in full compliance with all applicable laws and the Data Privacy Standards.
Customer Data and Third Party Resources. SkySlope’s customers of the SkySlope Services and such customers’ users (each, a “Customer”) shall own all data, text, images, audio, video, photographs, and other content and material that is uploaded by such Customer to the SkySlope Services (collectively, the “Customer Data”). The term “Customer Data” does not include the SkySlope Services, SkySlope Data, API Materials, Third Party Resources, the SkySlope Intellectual Property, or any other SkySlope products or services, or any derivative works thereof. Any Customer may disclose or transfer, or instruct SkySlope to disclose or transfer, Customer Data to Licensee, and upon such disclosure or transfer SkySlope is no longer responsible for the security or confidentiality of such content and applications outside of SkySlope. Licensee will not transfer or disclose any Customer Data to any third parties, expressly permitted by this Agreement, pursuant to an agreement between Licensee and the applicable Customer, and in full compliance with all applicable laws. The term “Third Party Resources” means all software, hardware, network, applications, data, data feeds, information, application programming interfaces (APIs), text, images, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of SkySlope may be accessible or used through, within, or in conjunction with the SkySlope Services. Third Party Resources are not included with and are not a part of the SkySlope Services or API Materials. Licensee will be responsible for, at its expense, establishing, purchasing and maintaining any and all Third Party Resources. SkySlope shall have no responsibility for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Customer Data or Third Party Resources, including any viruses, Trojan horses, worms or other harmful programming routines. All ownership and intellectual property rights in and to Third Party Resources and the use thereof is governed by separate third party terms between Licensee and the third party. SkySlope does not control and is not responsible for any Third Party Resources. ANY THIRD PARTY RESOURCES ACCESSIBLE OR AVAILABLE ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. LICENSEE ACKNOWLEDGES AND AGREES THAT SKYSLOPE IS NOT RESPONSIBLE FOR, AND HAS NO OBLIGATION TO CONTROL, MONITOR, OR CORRECT THIRD PARTY RESOURCES. SKYSLOPE DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY RESOURCES. Licensee acknowledges and agree that: (i) the nature, type, quality and availability of Third Party Resources may change at any time during the Term; and (ii) features of the SkySlope Services and API Materials that interoperate with Third Party Resources depend on the continuing availability of such Third Party Resources. SkySlope may need to update, change or modify the SkySlope Services under this Agreement as a result of a change in, or unavailability of, any Third Party Resources. If any third party ceases to make its Third Party Resources available on reasonable terms for the SkySlope Services or API Materials, as determined by SkySlope in its sole discretion, SkySlope may cease providing access to the affected Third Party Resources without any liability to Licensee. Any changes to Third Party Resources, including their unavailability, during the Term does not affect Licensee’s obligations under this Agreement or any Services Order Form, and Licensee will not be entitled to any refund, credit or other compensation due to any such changes. Licensee acknowledges and agrees that: (x) SkySlope is not an agent of any third-party providing or selling Third Party Resources; (y) any agreements relating to Third Party Resources are solely between Licensee and the applicable third-party; and (z) SkySlope has no liability for or relating to any Third Party Resources, Customer Data or disputes between Licensee and any Third Party Resources or between Licensee and any User or Customer, and SkySlope does not control, endorse or accept responsibility for any third parties. Licensee irrevocably waives, releases and discharges SkySlope from any claims arising out of or relating to Third Party Resources and their use. Licensee shall indemnify, defend and hold SkySlope harmless from and against all claims, liabilities, damages, judgments, actions, and causes of action arising out of or relating to all and any claims, liabilities, judgments, actions, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or related to (a) Licensee’s receipt and/or use of Customer Data or Third Party Resources, (b) the Licensee Application or any User’s or Customer’s use of the Licensee Application or any Third Party Resources, and/or (c) any software, programs, applications or application programming interfaces created or used by Licensee under the License.
Confidentiality, Non-Use and Non-Disclosure. Licensee will treat and hold all confidential, commercially sensitive, proprietary, and/or non-public information (“Confidential Information”) received from SkySlope in strict confidence and will not use or disclose to anyone any of the information except in connection with Licensee’s performance under this Agreement. The term “Confidential Information” shall include the terms and conditions of this Agreement, the API Materials, the API Credentials, PII (as defined below), SkySlope Data, Customer Data, SkySlope Intellectual Property, the SkySlope Services and their features, functionality, work-flow, algorithms, screen displays and methods, Updates and all documentation relating thereto, and Third Party Resources and any data provided or generated in connection with their use. Upon termination, cancellation or expiration of this Agreement, or at any time upon SkySlope’s request, for any reason whatsoever, Licensee shall return to SkySlope or at SkySlope’s instruction, purge or destroy, any or all Confidential Information, SkySlope Data, Customer Data, records or any other data or information retrieved by or from the SkySlope Services or Users. Licensee shall certify its compliance in a writing certified by an officer of Licensee.
Security. SkySlope utilizes commercially reasonable and appropriate administrative, technical, and physical procedures to protect Customer Data, SkySlope Data and Confidential Information used in connection with the SkySlope Services from unauthorized access and accidental loss or modification. However, SkySlope cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such information for improper purposes. Licensee acknowledges that if Licensee provides any information or data to SkySlope, Licensee does so at its own risk. SkySlope may provide, suggest or mandate security procedures and controls intended to reduce the risk to Licensee of fraud or security breaches (“Security Controls”). These Security Controls may include processes or applications that are developed by SkySlope or by third parties. Licensee agrees to review all Security Controls provided, and protect against unauthorized transactions and, if necessary, use other procedures and controls not provided by SkySlope.
Protected Information. Licensee represents, warrants, covenants and agrees that Licensee shall comply with all relevant and/or applicable state and federal data privacy standards and all United States, foreign and other applicable laws, rules and regulations governing data, banking and financial information, real estate, the purchase or sale of real estate, real estate transactions, agencies and brokers, privacy, personal data and personal information and PII including the U.S.-EU Safe Harbor Privacy Framework, the General Data Protection Regulation (GDPR) (EU) 2016/679, the Florida Information Protection Act of 2014, § 501.171, Florida Statutes, and any other applicable laws, rules, regulations and guidelines, and all other requirements reasonably requested by SkySlope (collectively, the “Data Privacy Standards”). The SkySlope Data, Customer Data, and Confidential Information may include information, data and materials subject to the Data Privacy Standards. Licensee represents, warrants, covenants and agrees that from the Effective Date of this Agreement and for so long as it maintains, possesses, acquires, discloses, uses, or has access to any PII, Licensee shall at all times maintain the PII in strict confidence and shall not disclose it to anyone or use it for any purposes except as expressly authorized in this Agreement and as permitted by applicable law and the Data Privacy Standards, and Licensee shall be in strict compliance with the Data Privacy Standards and that it shall notify SkySlope within twenty-four (24) hours if it is no longer in compliance with such Data Privacy Standards. SkySlope shall have the right, at any time, to require Licensee and its Users to remove, destroy or purge any information from its possession, custody or control that constitutes PII when required by any of the Data Privacy Standards. SkySlope shall have the right, but not the obligation, upon reasonable prior notice, to audit Licensee and its Users to confirm compliance with this Agreement and the Data Privacy Standards, which audit may include on-site inspections, requests for copies of documents and records, interviews with employees and representatives, proof of compliance, and written certifications executed under oath. The term “PII” means personal information, personally identifiable information, non-public information (NPI), any information about an individual, information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context, and any other information protected or regulated under applicable law and includes: (i) any information that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, or biometric records; (ii) credit card, debit card and other banking and payment information; (iii) any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information; (iv) any non-public personal information regarding any individual that is subject to applicable national, state, regional, and/or local laws and regulations governing the privacy, security, confidentiality and protection of non-public personal information; (v) is Personally Identifiable Information, as defined by state breach notification statutes; (vi) non-public information (NPI) as defined and/or used by applicable state, federal or local laws, rules or regulations; (vii) information appearing on applications for obtaining financial services (such as credit card or loan applications), or on account histories (such as bank or credit card histories), a person’s status (current or previous) with a banking, credit, lending or other financial organization, including names, addresses, telephone numbers, Social Security numbers, PINs, passwords, account numbers, salaries, medical information, and account balances; and (viii) any information or materials protected by applicable state, federal or local laws, rules or regulations or governing real estate or its purchase or sale, real estate brokers, agents, transactions or related documents.
Payment Terms. Licensee shall pay to SkySlope all fees set forth in this Agreement and each Services Order Form on or before the applicable due dates. Unless paid in full in advance for the then in-effect Term or as otherwise expressly set forth in the Services Order Form, Licensee is required to pre-authorize automatic monthly payments from Licensee’s credit card for all fees and amounts due or owing under this Agreement, and any withdrawal, termination or unavailability of such payment authorizations or card charges shall constitute a material breach of this Agreement. Any past due amounts owing under this Agreement or any Services Order Forms shall bear interest of one and one-half percent (1½ %) per month, or the highest rate permissible by law if less, from the due date. Licensee shall be solely responsible for and reimburse SkySlope for any taxes, including sales, use, property, excise, value added and gross receipts levied on this Agreement, the License and/or the API Materials, except taxes based on the net income of SkySlope. In the event of any failure to timely pay any fees or amounts due and if SkySlope has provided written notice of non-payment and such payment is not then made within five (5) business days, all remaining fees or amounts due for the remainder of the Term under this Agreement and each Services Order Form shall automatically and immediately be accelerated and become due and payable in full. Except as expressly set forth in this Agreement or a Services Order Form, all amounts are non-refundable and not subject to set-off. All monetary pricing and other amounts are in United States dollars.
Ownership of Intellectual Property. Licensee shall not contest or otherwise challenge: (a) SkySlope’s designation of its Confidential Information as trade secrets and commercially sensitive and confidential and proprietary information; or (b) SkySlope’s ownership of the Confidential Information, the SkySlope Marks (as defined below), the API Materials, the API Credentials, the SkySlope Services, SkySlope Data, Feedback (as defined below) and of all copyrights, patents, trade secrets, service marks, trademarks, proprietary rights, domain name registrations, and other intellectual property rights therein and arising therefrom (collectively, the “SkySlope Intellectual Property”). SkySlope is the owner of all SkySlope Intellectual Property and no title or ownership of the Confidential Information or SkySlope Intellectual Property is transferred to Licensee by way of this Agreement. Except for the limited rights granted to in the License, no other rights, whether express or implied, are granted to Licensee, and are reserved to and retained by SkySlope. In the event that Licensee provides to SkySlope any feedback, suggestions or comments (“Feedback”) regarding the API Materials or the SkySlope Services, or Licensee’s use thereof, Licensee agrees that SkySlope will be free to use, copy, modify, create derivative works, distribute, publicly display, publicly perform, grant sublicenses to, and otherwise exploit in any manner such Feedback, for any and all purposes, with no obligation of any kind to Licensee, and SkySlope shall be free to exploit and/or incorporate such Feedback in connection with the API Materials, SkySlope Services, Updates and/or SkySlope’s business. Licensee agrees that any Feedback shall be owned solely by SkySlope, shall be included as part of the SkySlope Intellectual Property. Licensee acknowledges and agrees that SkySlope may currently or in the future develop products and services or enter into agreements and licensees with third parties for services and products that may be similar to or compete with the Licensee Application or Licensee’s use of the API Materials. Nothing in this Agreement shall in any way restrict SkySlope from pursuing any business activities or from entering into any agreement with any other person or company.
Interruption of Use. Licensee acknowledges and agrees that the SkySlope Services, the API Materials and/or the API Credentials may be inaccessible or unavailable, in whole or in part, for various reasons including (“System Downtime”): (a) equipment, network, software and/or hardware malfunctions; (b) maintenance and repairs, and servicing, upgrading, and testing of the SkySlope Services, the API Materials and/or the API Credentials and their components; and (c) downtime caused by reasons beyond SkySlope’s reasonable control, including actual or threatened security concerns, Internet and connectivity failures and Force Majeure events. SkySlope shall not be liable for System Downtime and such instances shall not constitute a breach of this Agreement.
Term of Agreement. Unless earlier terminated in accordance with Section 14 below, the term of this Agreement shall be for the Initial Subscription Period set forth in the Services Order Form. The term of this Agreement will renew for one or more Renewal Terms in accordance with and as set forth in the Services Order Form. The term “Term” shall mean the Initial Subscription Period and any Renewal Terms thereafter.
Termination. SkySlope may terminate this Agreement at any time for any reason and return to Licensee the pre-paid portion of the fees under the applicable Services Order Form for the remaining and unused portion of the License for the then in-effect Term. Except as otherwise expressly set forth in this Agreement, either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of a failure to pay any fees or amounts due, which failure must be cured within five (5) business days after receipt of written notice from SkySlope. Either party may terminate this Agreement immediately and without notice if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors.
Effect of Termination. Upon termination, cancellation or expiration of this Agreement for any reason whatsoever: (a) the License granted to Licensee shall immediately, automatically, and without notice, be revoked; (b) Licensee shall immediately cease all access to and use of the API, the API Materials, the SkySlope Services and all Confidential Information; (c) Licensee shall return to SkySlope all Confidential Information in accordance with Section 7; (d) SkySlope shall have the right to terminate and deny Licensee access to and use of the API, the API Materials, the SkySlope Services, and the API Credentials immediately and without notice; and (e) Licensee shall pay all amounts due or owing under this Agreement, including those set forth in Section 10 above. The obligation set forth in Sections 6, 7, 9, 10, 11, 15, 16, 18, 20, 22 and 23 shall survive the termination, cancellation or expiration of this Agreement for any reason whatsoever, along with any other provisions which, by their nature, are intended to survive.
Representations and Warranties of Licensee. Licensee represents and warrants that: (a) Licensee will comply with all governmental authorities and all federal, state, local and foreign laws, rules and regulations applicable to this Agreement, the License and/or Licensee’s access to or use of the Customer Data, SkySlope Data, Confidential Information, the API Materials, the SkySlope Services, and API Credentials, including the Data Privacy Standards; (b) Licensee will not use the API Materials, the SkySlope Services or the API Credentials for any illegal purpose or in violation of any law or regulation; (c) the Licensee Application, Licensee’s data, and Licensee’s development and use of the API Materials shall not infringe, misappropriate or otherwise violate any patent, copyright, trade secret or other intellectual property right of any third party; and (d) Licensee shall not use the API Materials, the SkySlope Services or the API Credentials to transmit, receive, download, upload or solicit any materials, data, information or content: (i) which may violate any copyright, trade secret, trademark, service mark or any other intellectual property rights or rights of privacy or publicity of any person or entity; (ii) containing any destructive or interfering programs, applications, or instructions, or (iii) which may subject either party to civil or criminal liability. Licensee shall defend, indemnify and hold harmless SkySlope and its employees, officers, directors, managers, members, principals, agents, representatives, contractors, successors and assigns from and against any actual or threatened claims arising out of or relating to any actual or threatened (a) breach of this Agreement by Licensee or Licensee’s breach or default of this Agreement, including any of the representations and warranties set forth in this Section and in Section 9, and the obligations set forth in Section 3, (b) Licensee’s use of the SkySlope Services or API Materials, and (c) any claim by a User, Customer and/or Third Party Resource arising out of or relating to Licensee’s use of the API Materials or SkySlope Services, or any agreements or disputes between Licensee and any User, any Customer or Third Party Resource.
Warranties. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS IS AN AGREEMENT FOR SERVICES AND NOT FOR THE SALE OF GOODS. SKYSLOPE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE AND ALL SERVICES PERFORMED OR PROVIDED UNDER THIS AGREEMENT (INCLUDING THE API MATERIALS AND SKYSLOPE SERVICES) ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” SKYSLOPE DISCLAIMS ANY AND ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES AS TO NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY AND FITNESS FOR ANY PARTICULAR PURPOSE, AS TO ANY RESULTS THAT MAY BE OBTAINED FROM USE OF THE API MATERIALS, THE SKYSLOPE SERVICES, THE API CREDENTIALS OR ANY OTHER SERVICES, AS WELL AS ANY AND ALL WARRANTIES ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. LICENSEE ACKNOWLEDGES THAT THE API MATERIALS, THE SKYSLOPE SERVICES, THE API CREDENTIALS AND ANY OTHER SERVICES MAY NOT BE ERROR FREE. SKYSLOPE MAKES NO WARRANTIES WITH RESPECT TO THE API MATERIALS, THE SKYSLOPE SERVICES OR ANY THIRD PARTY RESOURCES, CUSTOMER DATA OR ANY BUGS, ERRORS OR INCORRECT INFORMATION OR DATA THEY CREATE OR PROVIDE, EVEN IF INCORPORATED INTO OR A PART OF THE SERVICES. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE.
LIMITATION OF REMEDIES AND LIABILITY. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER SKYSLOPE NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, DELIVERY OR PERFORMANCE OF ANY OF THE SERVICES PROVIDED UNDER THIS AGREEMENT SHALL BE LIABLE TO LICENSEE OR ANY OF LICENSEE’S USERS, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNS FOR ANY LOST PROFITS, LOST SAVINGS, DATA LOSS, INJURY TO GOODWILL OR REPUTATION, LOSS OF ANTICIPATED BENEFITS, DISRUPTION OR INTERRUPTION TO ITS BUSINESS, LOST CUSTOMERS, OR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY BREACH OF THIS AGREEMENT, ANY API MATERIALS, THE SKYSLOPE SERVICES, API CREDENTIALS OR ANY OTHER SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE AGREES THAT SKYSLOPE’S TOTAL, AGGREGATE AND COMPLETE LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF RELATING TO THIS AGREEMENT, ANY BREACH OF THIS AGREEMENT, OR ANY OF THE API MATERIALS, THE SKYSLOPE SERVICES, THE API CREDENTIALS OR ANY OTHER SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE IN NO EVENT SHALL EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY LICENSEE TO SKYSLOPE UNDER THE APPLICABLE SERVICES ORDER FORM GIVING RISE TO THE LIABILITY DURING THE TWO (2) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT LICENSEE FIRST PROVIDES SKYSLOPE WITH WRITTEN NOTICE OF THE EVENT GIVING RISE TO THE LIABILITY, AND A REFUND OF ANY PRE-PAID PORTION OF THE FEES UNDER THE APPLICABLE SERVICES ORDER FORM FOR THE REMAINING AND UNUSED PORTION OF THE SERVICES FOR THE THEN IN-EFFECT TERM. ALL OF THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND EVEN IF SKYSLOPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO LICENSEE.
Disablement. Notwithstanding any provision of this Agreement to the contrary, SkySlope shall have, among its other rights and remedies, the right to immediately temporarily or permanently disable, suspend or terminate Licensee’s access to and/or use of the API Materials, the SkySlope Services or the API Credentials, in whole or in part, with or without notice in the event that: (a) Licensee’s access or use of the API Materials, the SkySlope Services, or the API Credentials interrupts or interferes with the operation of the SkySlope Services in any manner or creates an actual or threatened security risk or exposes SkySlope, Licensee or any third party to civil or criminal liability; (b) Licensee’s breach or default on any obligation under this Agreement, including the obligation to pay fees or any amounts due hereunder; or (c) SkySlope has reason to believe there has been an unauthorized use or access to the API Credentials or the SkySlope Services. Whenever reasonably possible, SkySlope will provide prior notice of a suspension or disablement. In the event SkySlope reconnects any disabled and/or suspended API Materials, SkySlope Services and/or API Credentials, SkySlope may charge Licensee a reconnection fee.
Service Monitoring and Analyses. SkySlope monitors the SkySlope Services, all uses of the API Materials and the API Credentials to facilitate its operation of the SkySlope Services and other business purposes, internal and external; to help resolve service requests; to detect and address threats to the functionality, security, integrity, and availability of the SkySlope Services as well as any content, data, or applications in the SkySlope Services; and to detect and address illegal acts or violations of this Agreement or SkySlope’s policies. Information collected by SkySlope monitoring tools may also be used to assist in managing SkySlope’s product and service portfolio, to help SkySlope address deficiencies in its product and service offerings, and for license management purposes. SkySlope may: (a) compile statistical and other information related to the performance, operation and use of the SkySlope Services and information and data input, output and processed by the SkySlope Services and all transactions; and (b) use any and all such information and data collected from the SkySlope Services in aggregated form for commercial purposes, security and operations management, to create statistical analyses, for research and development purposes, and selling and disclosing to its clients and third parties specific and/or aggregated data, information and reports (clauses (a) and (b) are collectively referred to as “Service Analyses”). SkySlope may make Service Analyses publicly available; however, Service Analyses will not incorporate Licensee’s data (if any) or Confidential Information in a form that could serve to identify Licensee or any individual, and Service Analyses do not constitute personal data or Licensee’s data. SkySlope retains all intellectual property rights in Service Analyses.
Non-Solicitation. Licensee acknowledges and agrees that SkySlope’s employees, are critical to the servicing of SkySlope’s Customers and maintaining, supporting and providing the SkySlope Services and the API Materials and that, at SkySlope’s expense, they were provided specialized training. Licensee agrees that during the Term of this Agreement and continuing for a period of twelve (12) months following the termination, cancellation or expiration of this Agreement for any reason whatsoever, Licensee shall not directly or indirectly employ, hire, solicit or otherwise engage any SkySlope employee, whether as an employee, contractor, consultant or to perform any work or services or create or provide any deliverables for Licensee, either directly or through a third party or entity, whether or not relating to the SkySlope Services or the API Materials, or otherwise encourage or solicit any SkySlope employee to leave or separate their employment with SkySlope or to work for any other person or entity. In the event of any breach of this Section, Licensee agrees to pay SkySlope, as liquidated damages, an amount equal to one hundred percent (100%) of such SkySlope employee’s annual salary. However, such payment does not restrict the other party’s rights or remedies as they relate to the SkySlope employee.
Governing Law, Arbitration and Attorneys’ Fees. This Agreement shall be construed and the legal relations between the parties determined in accordance with the laws of the State of Delaware. The Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply to this Agreement or to orders placed under it. Any dispute, controversy or claim arising out of or relating to the SkySlope Services, the API Materials, the API Credentials, the Licensee Application, or this Agreement, or its negotiation, performance, execution or breach, shall be settled exclusively by arbitration in accordance with the Commercial Rules of the American Arbitration Association (“AAA”). The arbitration and all proceedings shall take place in Wilmington, New Castle County, Delaware before a single arbitrator selected by the parties in accordance with the AAA rules; however, the arbitrator shall have no less than ten (10) years’ experience in computer law and commercial matters. The decision of the arbitrator shall be final and binding and judgment upon the award rendered by the arbitrator shall be entered in any court having jurisdiction thereof. All proceedings, the decision and submissions made in connection with the arbitration shall be confidential. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provisions in this Section, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Wilmington, Delaware. In any dispute arising out of or relating to this Agreement, the prevailing party shall receive an award of its reasonable attorneys’ fees and costs in any proceeding, including on appeal and enforcement. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THE PARTIES AGREE THAT: (A) BY ENTERING INTO THIS AGREEMENT, LICENSEE AND SKYSLOPE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM OR CROSS-CLAIM BROUGHT BY SKYSLOPE OR LICENSEE, AND ARE ALSO WAIVING THE RIGHT TO PARTICIPATE IN OR BE REPRESENTED IN ANY CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Interpretation. The use in this Agreement of the word “including” will mean “including, without limitation.” The words “hereby,” “herein,” “hereinafter,” “hereof,” “hereto,” “hereunder,” and other words of similar import refer to this Agreement as a whole, as the same may be altered, amended, modified, repealed, restated and/or supplemented in accordance with the provisions contained in this Agreement, and not to any particular article, clause, paragraph section, subparagraph or subsection contained in this Agreement. All references to articles, clauses, paragraphs, sections, subparagraphs, and subsections will mean the articles, clauses, paragraphs, sections, subparagraphs and subsections contained in this Agreement, except as otherwise expressly provided in this Agreement. The title of and the article, section and paragraph headings contained in this Agreement are for convenience of reference only and will not affect or govern the interpretation of any of the provisions contained in this Agreement. The use in this Agreement of the singular form of a definition or term also will denote the plural forms of such definition or term, and vice-versa, as in each case the context may require. Where specific language is used to clarify by example a general statement contained in this Agreement, such specific language will not be deemed to limit, modify or restrict in any manner the construction of the general statement to which it relates. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation and construction of this Agreement and this Agreement shall be construed as having been jointly drafted by the parties.
Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this Agreement or the application of any provision to any party or circumstance shall be prohibited by or invalid under applicable law, such provision shall be reduced to such scope as is reasonable and enforceable if possible. Otherwise, such provision shall be severed from this Agreement and ineffective to the extent of such prohibition or invalidity without it invalidating the remainder of the provisions of this Agreement or the application of the provision to the other parties or other circumstances.
Waiver. The failure or delay of any party in exercising any of its rights hereunder, including any rights with respect to a breach or default by the other party, shall in no way operate as a waiver of such rights or prevent the assertion of such rights with respect to any later breach or default by the other party. No party shall be deemed to have waived any rights under this Agreement by any action or inaction unless an express waiver is set forth in writing. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.
Assignment and Binding Effect. This Agreement shall be binding upon the parties and each of their respective successors and assigns. This Agreement is personal to Licensee and may not be assigned or transferred by Licensee, in whole or in part, whether by agreement, merger, sale, change of ownership, equity or control, by operation of law or otherwise. There are no third party beneficiaries to this Agreement, whether express or intended.
Notice. All notices, requests, demands, or other hereunder shall be in writing and shall be deemed given only if delivered personally or sent via overnight delivery to the applicable party’s mailing address. Any legal notice sent by Licensee to SkySlope must also be emailed to email@example.com.
Force Majeure. Neither party shall be liable in damages, in breach or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by any act of God, flood, fire, storm, strike, lockout, war, riot, insurrection or any other cause beyond the reasonable control of the party whose performance is affected (a “Force Majeure”) to the extent the same directly prevents or delays the performance of such party’s obligations hereunder; provided that, no such condition shall excuse or justify any delay in a party’s performance of its payment obligations hereunder.
Relationship of the Parties. The relationship of the parties is that of independent contractors. Nothing herein will be construed as creating any agency relationship employment relationship, joint venture or partnership between the parties. Neither party is authorized to make any agreements, covenants, representations or warranties on behalf of the other.
Export. The SkySlope Services, the API Materials and the API Credentials will not be used in any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations (collectively the “Export Laws”). Licensee agrees to comply with all Export Laws and neither Licensee nor any of its Users or their employees or customers are citizens, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Cuba, and North Korea) and Licensee and its Users and their employees and customers are not otherwise prohibited under the Export Laws from performing or using the API Materials or engaging in any activities under this Agreement. Licensee acknowledges that the API Materials and SkySlope Services are designed with capabilities for Licensee and its Users and their employees to access and use them without regard to geographic location and to transfer or otherwise move information and data between them and other locations.
Trademarks and Press Releases. The rights granted in this Agreement do not include any general right to use SkySlope’s name or trademarks, service marks or logos (the “SkySlope Marks”). SkySlope may provide Licensee with limited permission to use the SkySlope Marks if agreed in advance and in writing between the parties. SkySlope may issue a press release(s) regarding the relationship hereunder. Licensee also agrees that SkySlope may use Licensee’s name and logo on SkySlope’s website and in SkySlope’s promotional materials as part of a general list of customers or individually as part of a case study or available integrations and connectivity.