1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this Agreement. “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.
1.2 “Customer Data” means all hardcopy or electronic data or information submitted by Customer to the Service.
1.3 “Order Form” means an ordering document executed by the parties that specifies the Service purchased by Customer under this Agreement. Each Order Form shall incorporate this Agreement by reference.
1.4 “Service” means the online, web-based application set forth in an Order Form issued by Customer and accepted by Skyhigh Networks in furtherance of this Agreement, and any functionally-related software application(s) that may be developed by or for Skyhigh Networks, and that is/are provided or otherwise made accessible by Skyhigh Networks, at its sole discretion, via https://www.skyhighnetworks.com (or other designated websites or IP addresses as communicated to Customer by Skyhigh Networks).
1.5 “Representative” means an individual (i) who is authorized by Customer to access and use the Service and who has been supplied an identification and password by Customer or at Customer’s direction; and (ii) who has responsibility to provide Customer Data and related information to Skyhigh Networks that will be processed by means of the Service. The term “Representative” may include Customer’s designated employees, consultants, representatives and agents.
1.6 “Subscription Term“ means the period identified in the Order Form during which Customer is authorized to use or access the Service pursuant to the terms set forth in this Agreement, unless earlier terminated as set forth in Section 10.
1.7 “Support Services” means the support services that will be provided by Skyhigh Networks in accordance with Exhibit A.
1.8 “User Guide” means all generally available documentation relating to the Service provided by Skyhigh Networks.
2.1 Provision of Service. Skyhigh Networks shall make the Service available to Customer pursuant to this Agreement and all Order Forms during the Subscription Term, solely for Customer’s own internal business purposes. Customer acknowledges and agrees that its desire to obtain access to and use of the Service is not contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Skyhigh Networks with respect to any future functionality or features or other modifications relating to the Service.
3. Mutual Rights and Responsibilities.
3.1 Skyhigh Networks’ Responsibilities. Skyhigh Networks shall: (i) not use or modify the Customer Data except as otherwise set forth in this Agreement; (ii) use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data; (iii) provide Support Services to Customer in accordance with Exhibit A; (iv) comply with all applicable laws in providing the Service; (v) process and store Customer Data for the most recent three (3) month period; and (vi) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) periodic maintenance which shall be performed on a weekend or during non-business hours defined as midnight to 6 am EST and by which Skyhigh Networks shall use commercially reasonable efforts to give at least 8 hours’ notice via the Service; (b) downtime caused by circumstances beyond Skyhigh Networks’ reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Skyhigh Networks’ possession or reasonable control, and denial of service attacks, or (c) Customer’s use of the Service other than in accordance with this Agreement.
3.2 Customer’s Responsibilities. Customer is and shall be responsible for all activities undertaken by its Representatives in connection with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service by its Representatives and other employees, consultants, representatives and agents, and shall notify Skyhigh Networks promptly of any such unauthorized access or use of the Service and/or the software underlying the Service; and (iii) comply with all applicable laws in accessing and using the Service and undertaking activities in furtherance of this Agreement.
3.3 Use Guidelines. Customer shall use the Service, the software underlying the Service, and Skyhigh Networks’ Confidential Information solely for its own internal business purposes during the Subscription Term and only in accordance with the terms and conditions set forth in this Agreement, and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted in Section 11.6), distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to Representatives; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store any infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights; (iv) upload to the Service or use the Service to send or store any virus, worm, time bomb, Trojan horse, or other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or any underlying computer networks (including both hardware and software components) and/or the computer programs or data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
3.4 Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Neither party may include the name and logo of the other party in lists of customers or vendors and indicate the specific release of the Service purchased by Customer without the other party’s prior written consent.
3.6 Data Security. Skyhigh Networks will at all times have in place, maintain and use appropriate technical, organizational and physical security measures (such as policies, standards, and practices) commensurate with the size and complexity of Skyhigh Networks’ business, the level of sensitivity of the Customer PII collected, handled and stored, and the nature of Skyhigh Networks’ activities under this Agreement (collectively, the “Security Measures”), to protect, keep secure, and prevent the unauthorized or unlawful processing, disclosure, loss, alteration or destruction of, or access or damage to, any Customer PII (a “Data Breach”). In the event of a Data Breach, Skyhigh Networks will: (i) immediately notify Customer; (ii) confer with Customer in good faith regarding the corrective steps that Skyhigh Networks will take and undertake such acts and implement such modifications as Customer, acting reasonably, considers are mutually agreed by the parties as being necessary or otherwise appropriate to remedy or mitigate the effects of the Data Breach; (iii) update Customer on a recurring basis of developments relating to the Data Breach; and (iv) promptly restore to the last available backup any Customer PII lost, damaged or destroyed as a consequence of the Data Breach; and (v) indemnify and hold harmless Customer against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any third-party claim or action that arises from a Data Breach that directly results from Skyhigh Networks’ failure to fulfill its stated obligation to have in place, maintain and use appropriate Security Measures. Skyhigh Networks will promptly return to Customer or securely destroy all Customer PII upon the earlier of Customer’s written request or the expiration or termination of this Agreement.
4. Fees and Payment.
4.1 Fees. Customer shall timely pay all fees specified in all Order Forms executed by the parties hereunder. Except as otherwise specified herein or in any Order Form, all fees are quoted and payable in United States dollars, payment obligations are non-cancelable, and fees paid are non-refundable. Fees for the Service are not based on any actual quantity or duration of Customer’s usage of the Service.
4.2 Invoicing and Payment. Except as otherwise specified in an Order Form, all fees and charges under this Agreement will be invoiced in advance and are due net thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing address and contact information to Skyhigh Networks. If Customer believes a particular invoice is incorrect, Customer must contact Skyhigh Networks in writing within sixty (60) days of such invoice date to be eligible to receive an adjustment or credit.
4.3 Overdue Payments. Any payment not received by Skyhigh Networks by the due date (as referenced in Section 4.2, above) and not subject to a reasonable and good faith dispute may accrue, at Skyhigh Networks’ option, late charges at the lesser of 1.0% of the outstanding balance per month, or the maximum rate permitted by applicable law, from the date such payment was due until the date on which any outstanding balance is paid in full.
4.4 Suspension of Service. If Customer’s obligation to pay the outstanding balance of any Skyhigh Networks invoice is thirty (30) days or more overdue (except for charges then under reasonable and good faith dispute), then, in addition to any of its other rights or remedies, Skyhigh Networks reserves the right to suspend Customer’s access to and use of the Service, without liability to Customer or any third party, until such amounts are paid in full.
4.5 Taxes. Unless otherwise stated, the fees paid and/or payable to Skyhigh Networks pursuant to this Agreement do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with its/their access to and use of the Service, excluding taxes based on Skyhigh Networks’ net income or property. If Skyhigh Networks has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Skyhigh Networks with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Proprietary Rights.
5.1 License. Subject to the terms and conditions of this Agreement and the applicable Order Form, Skyhigh Networks grants Customer, a non-exclusive, non-sublicensable, non-transferable, worldwide license to access and use the Service during the Subscription Term solely for its/their internal business purposes. For its part, Customer grants Skyhigh Networks a non-exclusive, non-sublicensable, non-transferable license to access and use the Customer Data to provide the Service to the respective Representatives of Customer.
5.2 Reservation of Rights. Except for the limited rights expressly granted to Customer pursuant to Section 5.1, above, Skyhigh Networks reserves all rights, title and interests in and to the Service and the underlying software, including, without limitation, all intellectual property rights relating to any of the foregoing. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
5.3 Restrictions. Customer shall not (i) modify, copy, display, republish or create derivative works based on or otherwise derived from the Service and the underlying software; (ii) frame, scrape, link to or mirror any content that is part of the Service (or any underlying software that generates content that is part of the Service), other than on Customer’s own intranets or otherwise for its own internal business purposes; or (iii) decompile, disassemble, reverse engineer, or otherwise attempt to determine any source code (or the underlying ideas, algorithms, structure, or organization) of the Service or of any object code contained in the underlying software.
5.4 Customer Data. As between Skyhigh Networks and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed the Confidential Information of Customer under this Agreement. Skyhigh Networks shall not access the accounts that Customer elects to establish for its Representatives, including Customer Data, except to respond to service or technical problems, to confirm compliance with the terms and conditions of this Agreement, to provide the Service under this Agreement, or otherwise at Customer’s direction or request. Subject to Section 3.6, Skyhigh Networks shall not be responsible or liable for the deletion, alteration, destruction, damage, loss or failure to store any Customer Data unless, and only to the extent that, such deletion, alteration, destruction, damage, loss or failure to store any Customer Data is directly and proximately caused by the gross negligence or willful misconduct of Skyhigh Networks’ actions, or lack thereof, and subject to any limitations set forth in this Agreement.
5.5 Aggregation of Anonymous Data. Notwithstanding anything else in this Agreement or otherwise, Skyhigh Networks may monitor Customer’s use of the Service and use Customer Data (excluding Customer PII) in an aggregated and anonymous manner, compile statistical and performance information related to the provision and operation of the Service, and may make such information publicly available, provided that such information does not disclose Customer PII and/or identify Customer’s Confidential Information. Skyhigh Networks retains all intellectual property rights in such aggregated and anonymous data and information.
5.6 Suggestions. Skyhigh Networks shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to reproduce, display and perform (publicly and otherwise), incorporate into the Service, prepare derivative works, distribute, and otherwise use and exploit any suggestions, ideas, feedback, recommendations or other information provided by the Representatives relating to the Service.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed 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 or the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement (including pricing and other terms referenced in all Order Forms hereunder), the Customer Data, the Service, the User Guide, and each party’s respective business and marketing plans, technology and technical information, product designs, and business processes. The obligations in this Section 6 shall not apply to 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 and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party (or any portion or derivative (e.g., summaries, extracts, notes) thereof); or (iv) is lawfully received from a third party without breach of any confidentiality obligation owed to the Disclosing Party and without any restriction on subsequent disclosure.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding anything in this Agreement to the contrary, Customer agrees that Skyhigh Networks may use Customer Data (excluding Customer PII) for analytic purposes, provided that such data would be anonymous and non-personally identifiable prior to any such usage. For the avoidance of doubt, Customer acknowledges and agrees that, as between the parties, the results and proceeds of the analyses of the Customer Data that are performed by Skyhigh Networks, as well as the related assessments and opinions that are subsequently provided to Customer are and shall be the Confidential Information of Skyhigh Networks (collectively, “Skyhigh Networks Analyses”). Customer acknowledges and agrees that it will not share or otherwise disclose the Skyhigh Networks Analyses with any third party or third parties (including, without limitation under any circumstances, subject to the following: (i) if Customer desires to disclose any portion of the Skyhigh Networks Analyses in any public forum, Customer acknowledges and agrees that (a) it must first obtain Skyhigh Networks’ prior written approval (which shall not be unreasonably withheld or delayed) and (b) Skyhigh Networks may, at its sole discretion, designate certain portions of the Skyhigh Networks Analyses that must not be disclosed at the proposed public event; and (ii) if Customer desires to disclose any portion of the Skyhigh Networks Analyses in a private, confidential setting where there is a third party present, then the parties acknowledge and agree that only the specific details (including risk analyses) included in the Skyhigh Networks Analyses that directly relate to such third party may be shared and/or otherwise disclosed by Customer to such third party (as applicable).
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it hereunder or otherwise at law or in equity, to seek the issuance of injunctive relief, without bond or other form of surety, to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7. Warranties and Disclaimers.
7.1 Warranties. Each party represents and warrants, solely for the benefit of the other party, that it has the legal power and authority to enter into this Agreement and to fulfill all of its obligations hereunder. Additionally, Skyhigh Networks represents and warrants, solely for the benefit of Customer, that: (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service will perform materially in accordance with the User Guide under normal use and circumstances; (iii) it owns or otherwise has sufficient rights in the Service to grant to Customer the rights to use the Service granted herein; and (iv) it shall not make or enter into any separate agreement or other arrangement with any third party (or third parties) that violates or is otherwise inconsistent with this Agreement. Customer represents and warrants, solely for the benefit of Skyhigh Networks, that: (a) it owns or otherwise has sufficient rights in the Customer Data to grant to Skyhigh Networks the rights to use the Customer Data granted herein; (b) it has not falsely identified itself nor provided any false information to establish any account that will be used to gain access to and/or use of the Service or the software underlying the Service; and (c) all billing and contact information provided by Customer is true and correct; (d) it shall not make any representation or extend any warranty to any third party, or otherwise state or imply that Skyhigh Networks has any obligation or liability with respect to Customer’s existing or planned business activities; (e) subject to the provisions of Section 6.2, above, it shall not provide any third party (or third parties) with access to and/or otherwise distribute the Skyhigh Networks Analyses to any third party (or third parties) without Skyhigh Networks’ prior written approval; and (f) it shall not make or enter into any separate agreement or other arrangement with any third party (or third parties) that violates or is otherwise inconsistent with this Agreement.
7.2 Remedies. Customer’s exclusive remedy and Skyhigh Networks’ entire liability for a breach of the warranties set forth in Section 7.1(ii) above shall be as follows: (i) for a breach of the limited warranty regarding the performance of the Service set forth in Section 7.1(ii), Skyhigh Networks shall modify the software underlying the Service so as to cause the Service to conform with the material provisions of the User Guide and (ii) for a breach of the limited warranty set forth in Section 7.1(iv), Skyhigh Networks shall undertake the indemnification provided under Section 8.1 below.
7.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 OF THIS AGREEMENT, NEITHER PARTY MAKES OR GRANTS ANY OTHER WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH OF THE PARTIES SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) THE SERVICE DOES NOT CONSTITUTE THE PROVISION OF LEGAL ADVICE OR SERVICES IN ANY MANNER; (B) THE SERVICE DOES NOT ENSURE CUSTOMER’S COMPLIANCE WITH ALL APPLICABLE LABOR OR EMPLOYMENT LAWS; AND (C) CUSTOMER IS SOLELY RESPONSIBLE FOR ITS COMPLIANCE WITH ALL APPLICABLE LAWS.
8.1 Indemnification by Skyhigh Networks. Subject to the terms and conditions of this Section of the Agreement, Skyhigh Networks acknowledges and agrees that it shall defend, indemnify and hold Customer and its employees, officers and directors, respectively, harmless from any and all costs, liabilities, losses, expenses and damages (including reasonable attorneys’ fees) to the extent directly arising out of or in connection with any claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party (i) alleging that the use of the Service as expressly authorized hereunder directly infringes or otherwise violates the patent, copyright, trademark or trade secret rights of any third party; or (ii) based on Skyhigh Networks’ breach of any of its limited warranties expressly set forth in Section 7.1 of this Agreement. Promptly, upon receiving notice of a Claim, Customer shall (a) give Skyhigh Networks prompt written notice of the Claim; (b) give Skyhigh Networks sole control of the defense and settlement of the Claim (provided that Skyhigh Networks may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provide to Skyhigh Networks, at Skyhigh Networks’ cost, all reasonable assistance in the defense or settlement of such Claim (in a manner consistent with Customer’s confidentiality obligations and preservation of attorney/client, attorney work product, and other such privileges). Skyhigh Networks’ indemnification obligation shall be offset to the extent its ability to defend or settle a Claim is jeopardized by Customer’s failure to comply with the preceding sentence and to the extent of Customer’s negligence or willful misconduct. Skyhigh Networks shall have no indemnification obligation with respect to any Claims of infringement to the extent said Claims arise solely from the combination of the Service or the software underlying the Service, or any use of the Service by Customer with any other product or service, or other than in accordance with this Agreement or the User Guide.
If the Service or the software underlying the Service is held to infringe, or the parties agree that the Service or the software underlying the Service appears likely to be held to be infringing, Skyhigh Networks shall have the option, at its expense to (i) replace or modify the Service or the software underlying the Service, as appropriate, (ii) obtain a license for Customer to continue using the Service, (iii) replace the Service or the software underlying the Service with a functionally equivalent service; or (iv) terminate the Service and refund any prepaid, unused portion of the fees previously paid by Customer (if any) that are applicable to the terminated Service. This Section 8.1 states Skyhigh Networks’ entire liability and Customer’s exclusive remedy for any Claim of intellectual property infringement.
8.2 Indemnification by Customer. Subject to the terms and conditions of this Section of the Agreement, Customer acknowledges and agrees that it shall defend, indemnify and hold Skyhigh Networks, and its/their employees, officers and directors, respectively, harmless from any and all costs, liabilities, losses, expenses and damages (including reasonable attorneys’ fees) to the extent directly arising out of or in connection with any Claims made or brought against Skyhigh Networks by a third party (i) alleging that the Customer Data, or any use of the Service and/or the software underlying the Software, by Customer in violation of this Agreement, infringes or otherwise violates any such third party’s intellectual property, privacy or other rights; or (ii) based on Customer’s breach of Section 5.1 or Section 5.3, above; or (iii) based on Customer’s breach of any of its limited warranties expressly set forth in Section 7.1 of this Agreement. Promptly upon receiving notice of a Claim, Skyhigh Networks shall (a) give Customer prompt written notice of the Claim; (b) give Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Skyhigh Networks of all liability); and (c) provide to Customer, at Customer’s cost, all reasonable assistance in the defense or settlement of such Claim (in a manner consistent with Customer’s confidentiality obligations and preservation of attorney/client, attorney work product, and other such privileges). Customer’s indemnification obligation shall be offset to the extent its ability to defend or settle a Claim is jeopardized by Skyhigh Networks’ failure to comply with the preceding sentence and to the extent of Skyhigh Networks’ negligence or willful misconduct.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR CUSTOMER’S BREACH OF SECTIONS 5.1 OR 5.3, OR SKYHIGH NETWORKS’ BREACH OF SECTIONS 3.1(ii), 3.5, 3.6, or 5.4, OR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 6, OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 ABOVE, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND OTHERWISE DUE FROM CUSTOMER WITH RESPECT TO THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
9.2 Exclusion of Consequential and Related Damages. EXCEPT FOR CUSTOMER’S WILLFUL OR GROSSLY NEGLIGENT BREACH OF SECTIONS 5.1 OR 5.3, OR SKYHIGH NETWORKS’ BREACH OF SECTIONS 3.1(ii), 3.5, 3.6, OR 5.4, OR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 6, OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 ABOVE, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST SALES, REVENUES OR PROFITS OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT EITHER PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGES.
10. Term and Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and, unless sooner terminated in accordance with the provisions of this Agreement, shall continue until all Subscription Terms established pursuant to this Agreement have expired or been terminated as set forth herein or in the relevant Order Form.
10.2 Subscription Term. The Subscription Term shall commence on the start date specified in the relevant Order Form and, unless sooner terminated in accordance with the provisions of this Agreement, shall continue for the Subscription Term specified therein. The Subscription Term will automatically renew for a period equal to the previous Subscription Term upon the expiration of the initial Subscription Term or any renewal Subscription Term unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the expiration of the relevant Subscription Term. Except as otherwise provided in an Order Form, renewal fees will be equal to the then-current number of users Customer has purchased multiplied by Skyhigh Networks’ then-current user fees in effect at the time of renewal.
10.3 Termination for Cause. Either party may terminate this Agreement, or an Order Form: (i) if the other party is in material breach under this Agreement and fails to cure such breach within thirty (30) days following its receipt of written notice of such material breach from the non-breaching party; 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 and such proceeding is not favorably resolved within sixty (60) days. This Agreement constitutes an executory contract in accordance with Section 365 of the U.S. Bankruptcy Code. If Customer files or has filed against it by a third party any petition under the U.S. Bankruptcy Code, Customer must either assume or reject this Agreement. Upon an assumption, Customer shall comply with 11 U.S.C. § 365(b)(1); upon a rejection, all of Customer’s rights hereunder will terminate. Upon any termination for cause by Customer, Skyhigh Networks shall refund to Customer any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. Upon any termination for cause by Skyhigh Networks, Customer’s right to access and use the Service, the software underlying the Service and Skyhigh Networks’ Confidential Information shall thereupon immediately cease and any and all prepaid fees previously provided by Customer shall be deemed fully earned by Skyhigh Networks for all intents and purposes.
10.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any and all fees accrued or otherwise payable to Skyhigh Networks relating to the Service up through and including the effective date of termination, and Customer shall pay to Skyhigh Networks all such fees promptly following (and in any event within thirty (30) days of) the effective date of termination.
10.5 Return of Customer Data. Following any termination or expiration of this Agreement (other than as a consequence of Skyhigh Networks’ termination for Customer’s breach of any material provision hereof), Customer shall have the right to access and use the Service for a period of thirty (30) days (the “Wind-down Period”). Additionally, within thirty (30) days after the effective date of termination, Skyhigh Networks will make available to Customer for download a file of the Customer Data then in Skyhigh Networks possession, custody or otherwise under its control (in comma separated value (.csv) format along with attachments in their native format). After the end of such Wind-down Period, Skyhigh Networks shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, be entitled to, delete all Customer Data in its systems or otherwise in its possession, custody or under its control.
10.6 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 4.1, 4.2, 4.3, 4.5, 5.2, 5.3, 5.4, 5.5, 5.6, 6, 7.2, 7.3, 8, 9, 10.4, 10.5, 10.6, and 11.
11. General Provisions.
11.1 Export Control. Customer shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business, such as the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce, trade and economic sanctions maintained by the United States Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the United States Department of State.
11.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party shall have the right, power or authority to make any representation or warranty (whether express or implied), or to assume or create any obligation on behalf of the other party, or to bind the other party in any manner whatsoever.
11.3.1 Notices to General Customer Base. For notices that are directed to Customer as part of Skyhigh Networks’ general customer base, Skyhigh Networks may give notice by means of a general notice on the Service, by electronic mail to Customer’s e-mail address on record in Skyhigh Networks’ account information, or by written communication sent by first class mail or pre-paid post to Customer’s address listed in the preamble of this Agreement. Such notice shall be deemed to have been given upon the expiration of two (2) business days after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) business hours after sending (if sent by email).
11.3.2 Notices Specific to the Parties. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile,(ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and, if to Skyhigh Networks, to the attention of its Chief Financial Officer, and, if to Customer, to the attention of the signatory of this Agreement with a cc to its General Counsel, or to such other address or individual as the parties may specify from time to time by written notice to the other party.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. Any waiver by either party of any provision of this Agreement shall not be construed as a waiver of any other provision of this Agreement, nor shall such waiver operate as or be construed as a waiver of such provision respecting any future event or circumstance. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law or to be otherwise unenforceable, the affected provision shall be deemed modified and shall be interpreted so as best to accomplish the stated intent and/or objectives of the original provision to the fullest extent permitted by law, and, if incapable of such enforcement, shall be deemed to be deleted from this Agreement, while the remaining provisions of this Agreement shall remain in full force and effect.
11.6 Assignment. Neither party may assign this Agreement (or any Order Form) or any of its rights hereunder (or thereunder), nor delegate any of its obligations hereunder (or thereunder), to any third party, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without the consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempted or purported assignment or delegation by a party without any required consent having first been obtained shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law. This Agreement shall be governed exclusively by the internal laws of the state of California, without regard to conflicts of laws rules, and of the United States of America.
11.8 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous discussions, negotiations, understandings, agreements, proposals and representations, written or oral, concerning the subject matter set forth herein. No modification, addendum or amendment of any provision of this Agreement shall be effective unless in writing and signed by the duly-authorized representatives of each of the parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms and conditions of such exhibit, addendum or Order Form shall prevail. No terms or conditions set forth on any purchase order, or any other preprinted form or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions that are not contained herein or expressly set forth in any related exhibit, addendum, or Order Form shall be null and void.
11.9 Counterparts. This Agreement and any Order Form executed hereunder may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
11.10 Headings. The headings of the Sections and subsections of this Agreement are for convenience of reference only and shall not be of any effect in construing the meanings of any Section or provision of this Agreement.
11.11 Construction. This Agreement shall be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either party. Any ambiguity shall not be interpreted against the drafting party.
Skyhigh Network’s Support and Maintenance
|Support and Maintenance|
|Phone, Email & Web||24/7|
|Office hours (critical and non-critical issues)||M-F 6am-6pm PST (excluding US holidays)|
|Availability for critical issues||24/7|
|Response time||(See below)|
Customer and Skyhigh Networks will jointly use the following definitions to document and respond to errors or deficiencies that may exist. If Customer determines that an error or deficiency exists in the programs supported by the Subscription Fees under this Agreement, Customer will provide written notification to Skyhigh Networks of such error or deficiency, along with supporting data and programs that document such error or deficiency. Skyhigh Networks shall respond as indicated.
Critical – Severity 1 Error:
A “Severity 1 Error” shall mean that the Service is non-operational and no users can access the system, or the functionality is significantly decreased, or back-up or other security of data can no longer be performed. The defect affects mission-critical systems or information in the production environment. This may include any defect related to Customer or personal safety, system availability, overall data integrity or ability to serve Customer.
“Severity 1 Error” events shall require immediate resolution by Skyhigh Networks. For “Severity 1 Error” events, Skyhigh Networks must start the error correction not later than one (1) hour following notification by Customer. Skyhigh Networks shall work to correct Severity 1 Errors on a 24×7 basis until resolution. Skyhigh Networks support personnel as well as Customer’s personnel may be required to sustain a twenty-four (24) hour per day effort to determine the root cause of the problem or until circumvention or resolution is provided. Skyhigh Networks will provide regular updates informing Customer of the progress to remedy the reported problem. For Severity 1 Errors only, telephone support is available to report irregularities 24 hours per day 7 days per week.
High – Severity 2 Error:
A “Severity 2 Error” shall mean that the Service is operational with functional limitations or restrictions but there is minimal business impact. Defect has a large impact on the functionality of the application, but does not require immediate release into the production environment.
For “Severity 2 Error” events Skyhigh Networks must start the error correction not later than 4 hours following notification by Customer. The error correction must commence by the start of the next business day following notification, if such notification has been received at a time two hours before end of a business day. Skyhigh Networks shall work to correct Severity 2 Errors during normal business hours. Skyhigh Networks will provide regular updates informing Customer of the progress to remedy the reported problem. Skyhigh Networks shall use reasonable efforts to correct such errors within five (5) business days.
Medium – Severity 3 Error:
A “Severity 3 Error” shall mean the Service is operational with functional limitations or restrictions that are not critical to the overall system operation. Defect has a moderate impact on the functionality of the application, however the application remains usable by all groups.
For “Severity 3 Error” events Skyhigh Networks shall work to correct Severity 3 Errors during normal business hours. Skyhigh Networks shall use reasonable efforts to correct such errors within thirty (30) business days.
Low – Severity 4 Error:
A “Severity 4 Error” shall mean the Service is operational with problems or errors, which have little impact on system operations. Severity 4 Errors shall include, but not be limited to, documentation errors. Defect has a minor impact on the functionality of the application.
“Severity 4 Error” events are normally corrected in the next maintenance release of the Service.
END OF EXHIBIT A
© Copyright 2015. Skyhigh Networks, Inc. All rights reserved. Skyhigh Networks, Inc. SSA Rev 2015-01-01