These Terms and Conditions (these “Terms”), together with one or more Order Forms referencing these Terms (“Order Forms”) shall apply to the provision of use of the Skyword Platform and any related professional services identified in the Order Forms (collectively the “Service” or “Services”) by Skyword Inc. (“Skyword” or “we” or “us” or “our”) to the Customer identified in the Order Forms (“Customer” or “you” or “your”). These Terms and Conditions and all Order Forms (collectively, the “Agreement”) represent the parties’ entire understanding regarding the Services. To the extent there is a conflict between these Terms and Conditions and an Order Form, the terms of the Order Form shall control with respect to the Services provided under such Order Form.
1. The Skyword lingo
a) “Branding” means any trademarks, logos, service marks, brand names, taglines, concepts or ideas developed by Skyword on behalf of Customer.
b) “Content” means any form of media created or acquired using the Platform.
c) “Contributors” means the freelancers contracted to create Content for publication on the Domain, whether by you or Skyword.
d) “Copy Editing” means reviewing Content for proper grammar, syntax, spelling, structure, and formatting and when performed by Skyword, Originality Searches.
e) “Customer IP” means any Customer trademarks, logos, trade names, brand names, domain names and service marks and any other materials that Customer delivers to Skyword or uploads to the Platform, and includes any Branding.
f) “Domain” means your website on which Content will be published.
g) “Effective Date” means the effective date specified on the first Order Form executed between the parties.
h) “Fact Checking” means using reasonable efforts to verify each statement in the Content that is purported to be factual through Internet searches.
i) “Keywords” means the search terms and phrases that describe the topic for the Content.
j) “Intellectual Property” means the Customer IP or the Skyword IP, as the context requires.
k) “Intellectual Property Rights” means patents, copyrights, trademarks, trade names, domain name rights, mask work rights, trade secret rights, and all other intellectual property rights of a similar nature anywhere in the world.
l) “Originality Search” means use of the Platform feature which is designed to detect whether all or significant portions of Content have been copied from third-party content freely available on the Internet.
m) “Platform” means the Skyword web-based content production platform and all associated software.
n) “Proofreading” means a second level of review to check for typos, spelling mistakes, and grammar errors.
o) “Skyword IP” means the Platform and any software, technology, materials or information created or provided by Skyword, other than Content.
p) “Visits” means the number of views of Content that arrive from outside the Domain to the Content or Content category pages.
2. What we are going to do for you
We will provide you with access to and use of our Platform in accordance with its documentation and as otherwise described in these Terms. We will perform all of the Services you ask us to perform that are specified in the signed Order Form, provided that you provide us with all necessary cooperation and information and are not in breach of this or any other agreement with Skyword.
3. What we need from you
You agree to participate in bi-weekly progress meetings, quarterly strategic reviews, and an annual planning meeting with Skyword. To the extent we perform Copy Editing services for you, you will at all times provide us with access to relevant industry and market research, internal subject matter experts, current marketing materials and initiatives, and brand guidelines. To ensure your Content performs, you agree to use reasonable efforts to search engine optimize the Domain and ensure that any use of the Content outside the Domain won’t interfere with its search rankings. So that we may measure your success and optimize your Content over time, you agree to enable tracking pixels from the Content to be sent back to the Platform. We will only collect anonymous traffic statistics and usage information and will not collect any personally identifiable information. We will treat all of this information as Confidential Information, and it will not be used for any purpose other than tracking Visits unless we aggregate the data with all other Skyword clients for use in promotional activities such that your identity is not disclosed. Out of respect for the Contributors, we require your timely review of Content. If Content that is submitted to you is not returned or accepted within 30 days, we cannot guarantee that the Contributor will be available to revise your Content.
4. Content Development
If specified in an Order Form, we will source Contributors to create and deliver the Content that will populate the Domain. When we source the Contributors, we will train them to produce Content that is search optimized and compatible with the Domain and the Platform. You may also source your own Contributors instead of or in addition to those we source. Whichever party sources Contributors, Skyword will engage them through the Platform’s Contributor sign-up process and pay them in accordance with Section 10.
To the extent specified in the Order Form, we will also perform Copy Editing, Proofreading, Fact Checking and Originality Search services for some or all Content. You agree to perform Originality Searches for all Content for which we are not obligated to do so under the Order Form, as this protects both you and Skyword. All Originality Searches shall be done prior to the publication of the Content.
5. Delivering Content to You
The Platform can deliver Content to your Domain using a variety of methods. If you desire to integrate your content management system with our Platform, we will provide you with access to the Content and the Platform using one of our integration methods as outlined in our developer guides which are available to you to assist your technology team with the integration.
You agree that we are not responsible for any trademark, copyright or other Intellectual Property searches, clearances, applications or registrations with respect to any Branding services we may perform for you. We make no representation or warranty regarding the non-infringement by any Branding of any trademark, copyright or other Intellectual Property Right, or any privacy or publicity right, of a third party, or your ability to obtain protection for the Branding under applicable Intellectual Property laws. You hereby assume full responsibility for any trademark, copyright or other Intellectual Property searches, clearances, applications or registrations for any such Branding, and any such Branding is provided by Skyword “as is”. Subject to your compliance with the terms of this Agreement, we hereby assign to you any rights we may have in the Branding.
You hereby grant to us during the term of this Agreement a non-exclusive, non-transferable, royalty-free license to use, reproduce, distribute, display, transmit and perform the Customer IP for purposes of soliciting Contributors to write Content for publication on the Domain. If you notify us of a reasonable objection to any use we make of any Customer IP, we will discontinue that use.
Provided that you pay us the fees due under the Agreement, we hereby grant to you during the term of this Agreement a limited, revocable, non-exclusive, non-transferable license to: (1) access and use the Platform in the manner we have enabled and in accordance with its documentation for purposes of publishing Content on the Domain; and (2) use, reproduce, distribute, display, transmit and perform Skyword’s trademarks and service marks (as provided to you by us) for purposes of promoting the Content and the Domain, provided that you will allow us to review and approve any uses of our trademarks and service marks prior to any such use. You do not have any license or right to use, copy, access, or view any source code of the Platform, or to reverse engineer, disassemble or decompile the Platform. You may not use the Platform in connection with any website or online service other than the Domain or for the benefit of any third party, and you may not sublicense, modify or create derivative works of the Platform.
8. Intellectual Property Ownership
We understand that the protection of the Customer IP is essential to you. We acknowledge that the Customer IP is proprietary to you, and that nothing in this Agreement is intended to transfer ownership of the Customer IP or any related Intellectual Property Rights to us. We acknowledge that any misappropriation or unauthorized use by us or others may unfairly and irreparably harm you. We will not knowingly allow any act or omission that would impair your Intellectual Property Rights.
Similarly, you understand that the protection of the Skyword IP is essential to us. You acknowledge that the Skyword IP is proprietary to us, and that nothing in this Agreement is intended to transfer ownership of the Skyword IP or any related Intellectual Property Rights to you. Any misappropriation or unauthorized use or disclosure by you or others may unfairly and irreparably harm us. You will not allow any act or omission that would impair our Intellectual Property Rights.
9. Ownership of the Content
All Content we procure for you shall be through a contract with our Contributors in which they agree to transfer ownership of the Content to us. Subject to your payment in full in a timely manner as described in this Agreement, we hereby assign our rights in the Content to you. This means, subject to you fulfilling your financial obligations under this Agreement, and as long as you are not in breach of any other obligation under this Agreement or an Order Form, that you own the Content and can use the Content however you please. Notwithstanding the foregoing, we may not own (and therefore cannot transfer to you) ownership of certain images and/or other media sourced from a third-party provider contained in the Content. Such images and other media acquired via the Platform or used in the Content may be provided pursuant to the license terms provided by the applicable third party provider.
You will promptly pay us in U.S. Dollars all amounts for each Order Form within thirty days of receiving our invoice. All fees shall be invoiced in accordance with the Order Form. Upon renewal, Platform and Services fees are subject to an increase of five percent (5%). Fees past due will incur interest at 1.5% per month, until such amount is paid. Fees do not include sales, use, excise, personal property or similar taxes and levies. All such taxes or levies attributable to an Order Form will be paid by you. You agree to pay our reasonable attorney fees, costs and expenses incurred by us in enforcing any provision of this Agreement including your obligation to pay invoiced fees pursuant to this Section 9.
11. Contributor Funds
We will pay Contributors in accordance with the fee structure you specify to us from time to time. Upon signing the Order Form you will provide us with a prepaid balance equal to approximately three months of your expected budget (“Contributor Funds”). We will use this amount solely for Contributor payments and additional Contributor incentive payments (monthly budget to be set by you). A third-party payment processing fee of 2% will be assessed to all Contributor Funds. Each month, we will issue an invoice for you to replenish the balance. Since we don’t want the Contributors creating Content for which funds are not available for payment, we will temporarily limit Content assignment capability if your balance falls below 10% of your prepaid balance. We will promptly refund you any unused Contributor Funds that we are not obligated to pay a Contributor if this Agreement is terminated.
A Kill Fee is a fee paid to a Contributor when Content is declined. You are responsible for the payment of the Kill Fee in the event you decline Content which meets (in our reasonable discretion) the Content guidelines in place at the time the Contributor accepted the assignment. Kill Fees are paid at 50% of the agreed upon rate and will be deducted from your Contributor Funds.
12. Term and Termination
This Agreement shall commence upon the Effective Date and shall remain in effect so long as any Order Form is active. In the unlikely event you or we materially breach this Agreement and the breach is not cured within ten days of written notice from the non-breaching party, then the non-breaching party may terminate this Agreement. In addition, each party can terminate this Agreement upon written notice if the other party files for any form of bankruptcy, has a bankruptcy petition filed against it that is not dismissed in its favor within sixty (60) days, makes any assignment for the benefit of creditors, or ceases to conduct business. Upon termination of this Agreement for any reason we both agree to cease using each other’s Intellectual Property.
From time to time, you may provide us with comments, questions, enhancement requests, suggestions, ideas, descriptions of processes or other information relating to our Platform or Service. We may freely use any such feedback in any manner without any obligation, royalty or restriction.
14. Service Level Agreement
Uptime is important and we will ensure that our Platform is fully operational at least 99.5% of each month, measured using one minute increments. From time to time, we will perform maintenance and upgrades to the Platform. Any downtime for those reasons or due to a Force Majeure Event does not count toward our uptime commitment, however we will let you know at least 24 hours in advance of any scheduled downtime and will schedule our downtime between the hours of 11 p.m. and 5 a.m. EST. If for any reason we need to perform unscheduled maintenance to maintain uptime or security and data integrity, we will do so on an as needed basis. We will respond to emergency requests that affect shared components within 3 hours during normal business hours (Monday through Friday, 8am-5pm EST).
15. Representations, Warranties and Covenants
Each party represents, warrants and covenants that: (a) it has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (b) the execution, delivery and performance of this Agreement by each party has been duly and validly authorized and approved; and (c) this Agreement when executed and delivered by each party will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. Customer represents and warrants that: (i) the Domain and Customer IP do not infringe upon or violate any patent, copyright, trademark, or any other proprietary rights of any third party or any publicity or privacy right of any third party; (ii) the promotional materials prepared by or for Customer promoting the Domain shall not infringe any copyright, trademark, or any other Intellectual Property Right of any third party; (iii) the promotional activities undertaken by Customer herein which incorporate the Skyword trademarks or references to the Service will comply with all applicable laws, rules and regulations; and (iv) if either Customer or Skyword becomes aware that any Content may infringe any third party Intellectual Property Rights, or otherwise violates any law, rule or regulation, Customer will remove that Content from the Domain and anywhere else it has been published.
EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, WITH RESPECT TO THE SUBJECT MATTER HEREOF, IN CONNECTION WITH THIS AGREEMENT. EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SKYWORD MAKES NO REPRESENTATION OR WARRANTY REGARDING THE RESULTS OF USE OF THE PLATFORM, THE FREQUENCY, QUANTITY OR QUALITY OF CONTENT IT MAY PROVIDE HEREUNDER OR THAT ORIGINALITY SEARCHES WILL DISCOVER ALL INSTANCES OF COPYRIGHT INFRINGEMENT.
Each party (the “indemnifying party”) will defend, indemnify and hold harmless the other party and its directors, officers and employees (the “indemnified parties”), from and against all damages, liabilities, costs and fees, including reasonable attorneys’ fees and court costs, to the extent arising out of: (i) a claim, action, suit or proceeding brought by a third party (a “Claim”) against an indemnified party to the extent such Claim arises out of the indemnifying party’s breach or alleged breach of any of its representations or warranties made herein; or (ii) a Claim that any Content hereunder infringes a third party copyright where either: (a) the indemnifying party was obligated to conduct an Originality Search with respect to such Content but breached such obligation, or (b) the indemnifying party was advised by the indemnified party or otherwise had knowledge that such Content infringes such third party copyright and the indemnifying party subsequently elected to publish such Content.
The obligations of the indemnifying party set forth in this Section 16 above are contingent upon the indemnified party (i) promptly notifying the indemnifying party in writing of the Claim, except that any failure to provide this notice promptly only relieves the indemnifying party of its responsibility pursuant to this Section 16 to the extent its defense is materially prejudiced by the delay; (ii) granting the indemnifying party sole control of the defense and/or settlement of the Claim, provided that (1) the indemnifying party may not agree to any settlement that admits fault by the indemnified party or purports to bind the indemnified party without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, delayed or conditioned and (2) any settlement must include an unconditional release of the indemnified party from any liability or claims that are the subject matter of such Claim; and (iii) providing the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the Claim.
If Skyword believes a Claim (or an adverse judgment in connection with a Claim) relating to infringement of third-party Intellectual Property Rights by the Platform is likely, then Skyword may, at its option, (x) obtain a license from the third party claimant that allows Customer to continue the use of the Platform, (y) modify the Platform so as to be non-infringing, or (z) if neither (x) nor (y) is available to Skyword at commercially reasonable terms, terminate this Agreement upon written notice to Customer. This Section 16 sets forth the entire liability of Skyword and the sole and exclusive remedy of Customer in the event of any Claim that the Platform or Content infringes any third party Intellectual Property Right.
18. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR USE OF THE PLATFORM OR ANY CONTENT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY TO THE OTHER PARTY EXCEED THE TOTAL FEES PAYABLE TO SKYWORD DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE OF THE CLAIM, REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY DO NOT APPLY TO ANY BREACH OF SECTION 18 OR WITH RESPECT TO THE OBLIGATIONS SET FORTH IN SECTION 16.
Each party shall keep confidential all information and materials provided by the other party that is marked as confidential or proprietary, or which based on the nature of the information disclosed and/or circumstances surrounding its disclosure should reasonably be recognized to be confidential or proprietary even though it is not so marked, whether in tangible or intangible form (“Confidential Information”). The features and functionality of the Platform, as well as any information regarding planned modifications or updates thereto or future Skyword products and services constitutes Confidential Information of Skyword. Neither party shall disclose the other party’s Confidential Information to any third party without the other party’s written permission, and shall only disclose such Confidential Information to those of its employees and agents who have a reasonable need-to-know under this Agreement and who are subject to a confidentiality agreement not materially less protective than this Section 18. Each party shall keep and instruct its employees and agents to keep the other party’s Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party shall use the other party’s Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the other party.
Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis, (iv) developed by the receiving party without reference to Confidential Information or (v) required to be disclosed by law or legal process, provided that the receiving party promptly provide notice to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders. If any party, its employees or agents breaches or threatens to breach the obligations of this Section 18, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
a. The waiver of any provision in this Agreement does not constitute a waiver of that provision in any other instance.
b. Sections 1, 6, 8, 10 (with respect to accrued but unpaid obligations), 12, 13, 15, 16, 17, 18, 19 and 20 of this Agreement shall survive the termination of this Agreement.
c. This Agreement sets forth the entire agreement and supersedes any and all prior agreements of the parties with respect to the transaction set forth herein.
d. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign its rights and obligations under this Agreement without the consent of the other party in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction. This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
e. In the event that any provision of this Agreement is held invalid by a court of competent jurisdiction (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
f. Except where otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.
g. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the Commonwealth of Massachusetts except for its conflicts of laws principles. Each party irrevocably consents to the exclusive jurisdiction of the courts situated in the Commonwealth of Massachusetts for adjudication of all disputes arising in connection with this Agreement
h. In the event that either party hereto shall be prevented from the performance of any act required hereunder by reason of riots, insurrection, terrorist attacks, war, acts of God, force of nature, or other reasons beyond its control (a “Force Majeure Event”), whether similar or dissimilar, then performance of such act shall be excused for the period(s) of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay, provided the party delayed in performing promptly gives written notice to the other party of its inability to perform, and makes all commercially reasonable efforts to commence performance as soon as possible.
i. Nothing contained herein shall in any way be construed to create an agency relationship, joint venture or partnership between the parties hereto.
j. Neither party shall be responsible for any obligations of the other, except as specifically provided herein, and neither party shall have the power to bind or obligate the other in any manner whatsoever except as expressly set forth herein.
k. This Agreement and any amendments hereto may be executed in counterparts, all of which together shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the parties and delivered to the other party.
21. Press Release
If either party prepares a press release or similar public announcement regarding this Agreement that party shall obtain the other’s consent prior to issuance, approval of which shall not be unreasonably withheld.
We may give notice to our Platform customer base by means of a general notice on the Platform dashboard, and notices specific to you by electronic mail to your e-mail address on record in our account information or by written communication sent by first-class mail or pre-paid post to your address on record. If you have a dispute with us and wish to provide a notice under the Agreement, or become subject to insolvency or other similar legal proceedings, you shall promptly notify our Chief Financial Officer by written notice to Skyword Inc. at 38 Chauncy Street, 14th Floor, Boston, MA 02111.