Subscription Services Agreement
These Master Terms and Conditions (the “MTC”), along with any offering-specific addenda (each, an (“Addendum”), together with one or more Order Forms (defined below) govern our provision and your use of the Skyword Platform and any other materials or services (collectively, the “Offerings”) provided by Skyword Inc. (“Skyword” or “us”) to the entity identified in the relevant Order Form (“Customer” or “you”). These MTC, any Addenda, and any Order Forms are collectively referred to as the “Agreement.”
1. Definitions—Words with Specific Meanings in these MTC
1.1. “Content” means any Intellectual Property that is created or acquired using the Platform, or otherwise loaded onto the Platform, including any form of media for publication by You.
1.2. “Contributor(s)” means those persons or entities that provide Content, and includes any Freelancers.
1.3. “Contributor Fee” means a pass through fee that is allocated directly to Contributors.
1.4. “Customer IP” means any Customer-owned trademarks, logos, trade names, brand names, domain names, service marks, images, white papers, case studies, marketing collateral, and any other materials owned by Customer that Customer delivers to Skyword or uploads to the Platform.
1.5. “Documentation” means the Platform’s online help system and the information made available to Customer by Skyword through the Skyword sites https://support.trackmaven.com and https://docs.integrations.skyword.com/, and through other sales and support communications, as they may be amended from time to time and as applicable to the specific Offering(s) set forth in an Order Form.
1.6. “Intellectual Property” or “IP” means trademarks, inventions, works of authorship, photographs, logos, collections of data, trade secrets, and any other form of intellectual property under applicable law, and may include the Customer IP and/or the Skyword IP, as the context requires.
1.7. “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.
1.8. “Management Fee” means the fees to Skyword for the allocation and management of resources to perform the services.
1.9. “Offering” means a product or service, whether standardized or ad hoc, that Skyword makes available to you, other than the Platform.
1.10. “Order Form” or “Statement of Work (SOW)” means a document executed by you and us that specifies one or more Offerings being procured by you from us, which may be ongoing subscriptions to various Software as a Service (SaaS) offerings or may be discrete one-time transactions.
1.11. “Platform” means the Skyword software and all associated IP.
1.12. “Professional Services Fee” means all other fees that are not Management Fees or Contributor Fees.
1.13. “Skyword IP” means the Platform and any software, technology, materials or information created or provided by Skyword, other than Content for which Skyword has received payment.
1.14. “Subscription” means the right to access and use the Platform and/or a specified Offering in accordance with the Documentation and these MTC for a particular period of time. Subscriptions are access-based, and not use-based, such that a failure to access or use the system in a given month or to the extent intended or planned, or to the maximum extent permitted under the Order Form, will not result in any refunds, discounts, “roll-overs,” or other credits.
1.15. “Subscription Start Date” means the date specified on the relevant Order Form as the date on which the subscription(s) covered by that Order Form begin.
1.16. “Subscription Term” means the period of time commencing on the Subscription Start Date and continuing until such Subscription terminates or expires without being renewed.
2. What we are going to do for you
We will provide you with access to and use of our Platform and any Offering(s) in accordance with Documentation and the Agreement. If you subscribe to or otherwise purchase any Offerings, those Offerings will be covered by these MTC and the specific Addendum covering those Offerings. We will perform all of the services and deliver all of the materials specified in the signed Order Form, provided that you give us all reasonable and necessary cooperation and information and you are not in breach of the Agreement or any other agreement with Skyword.
3. What we need from you
You agree to provide us, on a timely basis, with all reasonable and necessary cooperation and information, which may include participation in meetings, timely reviewing and responding to drafts of deliverables, and provide guidance as needed. Any delay due to your responsiveness may have deleterious effects upon project timetables and our ability to effectively deliver the services – and you acknowledge and agree that you are financially responsible for such delay(s).
4.1. Licenses From You. You hereby grant to us during the term of this Agreement a non-exclusive royalty-free license to use, reproduce, distribute, display, transmit and perform the Customer IP as reasonable to perform our obligations to you. If you notify us of a reasonable objection to any use we make of any Customer IP, we will discontinue that use. Customer grants Skyword the right to issue press releases and use Customer’s name and logo for marketing and promotion purposes.
4.2. Licenses To You. Provided that you pay us the fees due under the Agreement and otherwise comply with these MTC and any applicable Addenda, 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 accordance with the Documentation; (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, 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 of the software that enables or makes up the Platform or any Offering, or to scrape, attempt to defeat the security of, reverse engineer, disassemble or decompile the Platform or any Offering. You may not use the Platform or any Offering for the benefit of any party other than the parties to this Agreement, and you may not sublicense, modify or create derivative works of the Platform or any Offering.
5. Intellectual Property Ownership
5.1. Customer IP. 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 to us. We acknowledge that any misappropriation or unauthorized use of Customer IP 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 in the Customer IP.
5.2. Skyword IP. 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 of the Skyword IP 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 in the Skyword IP. 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 Offerings (collectively, “Feedback”). We may freely use any Feedback in any manner without any obligation, royalty or restriction.
Platform fees must be paid prior to the commencement of each Subscription Term, unless stated otherwise in the applicable Order Form. You will pay us in U.S. Dollars all amounts due under the Agreement within thirty days of receiving our invoice, or as otherwise specified in the applicable Addendum or Order Form. Upon each renewal, Platform and Offering fees are subject to increase. Any increase applicable to a renewal term will be communicated to you at least ninety (90) days prior to the effectiveness of such increase. Fees past due will incur interest at 1.5% per month, accruing daily, until such amount is paid. Fees do not include sales, use, excise, or similar taxes and levies. All such taxes or levies 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 fees. Notwithstanding anything to the contrary, the fees for quarterly Contributor Fees, Management Fees, and Professional Services Fees as detailed in the appropriate Order Form, must be received by Skyword no later than five (5) calendar days prior to the start of each fiscal quarter. Excluding the first invoice, or as otherwise set forth in an applicable Order Form, such fees shall be invoiced prior to the first day of each fiscal quarter, in accord with your payment terms.
7. Term and Termination
These MTC will govern all Order Forms, and any Addenda will govern applicable Order Forms. These MTC and any Addenda shall remain in effect so long as any Order Form governed by them is active. In the unlikely event you or we materially breach this Agreement and the breach is either incapable of cure, or is not cured within ten (10) days of written notice from the non-breaching party, then the non-breaching party may terminate this Agreement within thirty (30) days after the expiration of such cure period. 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 the Agreement for any reason we both agree to cease using each other’s Intellectual Property. The Subscription Term will automatically renew for a period equal to the initial Subscription Term, unless a party provides written notification of non-renewal at least ninety (90) days prior to the expiration of the then-current Subscription Term.
8. Service Levels
Uptime is important and we will ensure that our Platform is fully operational and available at least 99.5% of each month. 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 endeavor to 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).
9.1. Data Backups. The Platform and the Offerings do not replace the need for you to perform regular data backups and/or maintain redundant data archives. SKYWORD HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER IP.
9.2. Prohibited Data. Customer acknowledges that the services are not intended or designed for the following categories of information: (a) Personal Information as it relates to the genetic data, biometric data, or health data of a natural person; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services, and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). You shall not, and shall not permit any other person to, provide any Prohibited Data to, or process any Prohibited Data through, the Platform or any Offering.
10. Representations, Warranties and Covenants
10.1. Mutual Warranties. 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.
10.2. Customer Warranties. Customer represents and warrants that: (i) the Customer IP (including the other content on Customer’s website, social media accounts, and anywhere else that the Content is published at Customer’s direction) 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) any materials prepared by or for Customer shall not infringe any copyright, trademark, or any other Intellectual Property Right of any third party; (iii) it will not, in performing its obligations under the Agreement, knowingly violate any 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 anywhere it has been published.
10.3. Skyword Warranties. Skyword represents and warrants that the services will conform in all material respects to their Documentation during the relevant Subscription Term. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Skyword will reperform the non-conforming services or repair the services such that they are conforming, or if the foregoing is not commercially feasible, Skyword may terminate the Order Form for the affected services and will refund to Customer the pre-paid fees for the unused portion of the Subscription Term. The parties acknowledge and agree that Skyword will use commercially reasonable efforts to continually develop, deliver and provide ongoing innovation to the services in the form of new features, functionality, capabilities and services and, accordingly, Skyword reserves the right to modify the Offerings and services from time to time in its sole discretion.
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, INCLUSIVE OF BUT NOT LIMITED TO, THOSE OF 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 THE PLATFORM MAY PROVIDE HEREUNDER OR THAT ORIGINALITY SEARCHES WILL DISCOVER ALL INSTANCES OF COPYRIGHT INFRINGEMENT. SKYWORD DOES NOT WARRANT THAT THE OFFERINGS WILL (i) MEET ALL OF CUSTOMER’S REQUIREMENTS; (ii) OPERATE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT KNOWN OR DISCOVERED ERRORS WILL BE CORRECTED; (iii) PROVIDE DATA, ANALYZED DATA, OR OTHER RESULTS THAT ARE COMPLETE, ACCURATE, OR RELIABLE; OR (iv) MEET CUSTOMER’S EXPECTATIONS. SKYWORD EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, ANY THIRD PARTY COMPONENTS WHICH ARE OUTSIDE SKYWORD’S CONTROL, INCLUDING BUT NOT LIMITED TO, INTERNET ACCESS, AND COMPUTER OR NETWORK EQUIPMENT, ALL OF WHICH ARE THE RESPONSIBILITY OF CUSTOMER.
Each party (as “Indemnitor”) will defend, indemnify and hold harmless the other party and its directors, officers, and employees (each, an “Indemnitee” and, collectively, the “Indemnitees”), 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 Indemnitee to the extent such Claim arises out of the Indemnitor’s breach or alleged breach of any of its representations or warranties made herein (unless an exclusive remedy is provide in connection with such representation or warranty); or (ii) a Claim that any Content, or other materials, provided by the Indemnitor infringes a third party copyright.
The obligations of the Indemnitor set forth in this Section above are contingent upon the Indemnitee (i) promptly notifying the Indemnitor in writing of the Claim, except that any failure to provide this notice promptly only relieves the Indemnitor of its responsibility pursuant to this Section to the extent its defense is materially prejudiced by the delay; (ii) granting the Indemnitor sole control of the defense and/or settlement of the Claim, provided that (1) the Indemnitor may not agree to any settlement that admits fault by the Indemnitee or purports to bind the Indemnitee without the Indemnitee’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 Indemnitee from any liability or claims that are the subject matter of such Claim; and (iii) providing the Indemnitor, at the Indemnitor’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 or any Offering 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 and/or Offering, (y) modify the Platform and/or Offering 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 sets forth the entire liability of Skyword and the sole and exclusive remedy of Customer in the event of any Claim that Skyword infringes any third party Intellectual Property Right.
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS TO PROCURE SUBSTITUTE SERVICES, LOSS OR CORRUPTION OF DATA OR DOCUMENTATION, USE OR INABILITY TO USE THE PLATFORM OR OFFERINGS, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT WITH RESPECT TO CUSTOMER’S BREACHES OF SKYWORD’S PROPRIETARY RIGHTS AND A PARTY’S INDEMNIFICATION OBLIGATIONS, THE TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED, THE AMOUNTS ACTUALLY PAID TO SKYWORD BY CUSTOMER UNDER THE APPLICABLE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE LIMITATION OF LIABILITY SETH FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS FOR THE AGREEMENT BETWEEN THE PARTIES, SUCH THAT THEY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS.
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 Offerings, 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. 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. Customer acknowledges and agrees that Skyword may compile data collected or generated from Customer’s use of the applicable Platform, and the data Skyword collects on Customer’s behalf, with data from its other customers in an aggregate and anonymous manner to derive statistical and performance information related to the provision and operation of the Platform and services and may make such information publicly available, provided that such information does not include any Customer Confidential Information or any data that would enable the identification of Customer or Customer’s data. Skyword retains all rights, title and interest in and to such statistical and performance information, all of which shall be deemed Skyword Property hereunder.
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, 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.
15.1. The waiver of any provision in this Agreement does not constitute a waiver of that provision in any other instance.
15.2. Sections 1, 5, 6, 7, 9, 10.2, 11, 12, 13, 14, and 15 of this Agreement shall survive the termination of this Agreement.
15.4. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that Skyword 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.
15.5. 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.
15.6. 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.
15.7. 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 state and federal courts situated in the Commonwealth of Massachusetts for adjudication of all disputes arising in connection with this Agreement. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PLATFORM, AND/OR ANY OFFERING.
15.8. In the event that either party hereto shall be prevented from the performance of any obligation hereunder by reason of riots, insurrection, terrorist attacks, war, acts of God, force of nature, or other reasons beyond its control (often referred to as “force majeure”), then performance of such obligation shall be excused for the period(s) of the delay and the period for the performance of any such obligation 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.
15.9. Nothing contained herein shall in any way be construed to create an agency relationship, joint venture or partnership between the parties hereto.
15.10. 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.
15.11. 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.
15.12. Notice. We may give notice to our customer base by means of a general notice on a Platform dashboard (as applicable to the Offering(s)), or notify 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 at 38 Chauncy Street, 14th Floor, Boston, MA 02111, with a copy to Skyword Counsel, The Norton Law Firm, 907 Shady Drive SE, Vienna, VA 22180 USA.
15.13. Limitation of Claims. You agree that, notwithstanding anything to the contrary, any claim or cause of action arising out of or related to your use of the Platform or Services, or this Agreement, must be filed within one (1) calendar year of the action that gave rise to such claim or action – or be forever barred.
15.14. Third Party Vendors. In order for the Platform and Services to operate as intended, we use certain third party vendors who may have applicable terms and conditions for the use of their products and/or services – as such terms and conditions may but updated from time to time. By using the applicable products and/or services you agree to be bound by their terms and conditions, and in the event of a conflict between a third-party’s terms and conditions and this Agreement, the terms of the third party agreement shall control. Such third party vendors include, but are not limited to:
15.14.1 Amazon Web Services – https://aws.amazon.com/service-terms/
15.14.2 Google Analytics – https://marketingplatform.google.com/about/analytics/terms/us/
Please report any violations of the TOS to Skyword at email@example.com