SKYKICK RESELLER TERMS & CONDITIONS

 

These SkyKick, Inc. ("SkyKick") Reseller Terms and Conditions (the "Terms and Conditions") will apply to any and all orders placed by a SkyKick reseller partner ("Reseller") via the SkyKick Partner Portal (an "Order"). SkyKick's acceptance of an Order is subject to and expressly conditioned on Reseller's assent to these Terms and Conditions, the Order and any other written agreements executed by SkyKick and Reseller that reference or are executed pursuant to these Terms and Conditions (collectively, the "Agreement"). The effective date of the Agreement (the "Effective Date") will be the date that SkyKick first provides an authorized Reseller with access to the Partner Portal (as defined below) available via the SkyKick website www.skykick.com, or any successor website thereto (the "SkyKick Site"). SkyKick and Reseller are sometimes referred to herein individually as a "Party" and together as the "Parties."

 

By accessing and using the Partner Portal, Client agrees to all of the terms and conditions of these SkyKick Terms and Conditions, including the limitations on liability set forth herein and the provisions governing SkyKick's ability to modify these Terms and Conditions set forth in Section 13.10. IF RESELLER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN, RESELLER IS NOT PERMITTED TO USE THE PARTNER PORTAL.

 

Please refer to the SkyKick privacy policy (available at http://www.skykick.com/Privacy-Policy) (the "Privacy Policy") for information on how SkyKick collects, uses and discloses Reseller's information in connection with Reseller's use of the SkyKick Platform.

 

RECITALS

A. SkyKick is in the business of providing certain cloud computing migration and related support services, as more fully described in the Documentation or an applicable Order (the "Services").

B. Reseller desires to provide its customers with access to the Services and as such, wishes to purchase for resale, and resell and distribute the Services to its customers.

C. SkyKick will sell the Services to Reseller in accordance with and pursuant to the terms and conditions of this Agreement.

 

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1. Definitions. For the purposes of this Agreement, including exhibits hereto, the following terms will have the following meanings:

1.1 "Confidential Information" means all information disclosed (whether in oral, written, or other tangible or intangible form) by a Party to the other Party concerning or related to this Agreement (whether before, on or after the Effective Date), which the receiving Party knows or should know, given the facts and circumstances surrounding the disclosure of the information, is confidential information of the disclosing Party. Confidential Information includes, but is not limited to, the pricing terms for the Services as set forth in the Order or otherwise, the Intellectual Property Rights of SkyKick, any Customer Data, the SkyKick Platform, components of the business plans, the Services, the Software, inventions, design plans, any proprietary software or technology of SkyKick, financial plans, computer programs, know-how, customer information, strategies and other similar information. Notwithstanding the foregoing, Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the receiving Party; (b) the receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the disclosing Party; (c) the receiving Party can demonstrate was developed by the receiving Party independently and without use of or reference to the Confidential Information; or (d) the receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.

1.2 "Customer" means any Person who purchases the Services from Reseller for such Person's own cloud computing migration needs and not for re-sale or redistribution.

1.3 "Customer Contract" means an agreement between Reseller and any Customer pursuant to which Reseller makes the Services available to such Customer.

1.4 "Customer Data" means any and all Customer or User information, data, text, audio, video, images or other content (a) provided by a Customer or User to Reseller or SkyKick in connection with the purchase or receipt of the Services or use of the SkyKick Platform; or (b) provided to, hosted and/or stored by SkyKick in connection with the provision of the Services. Customer Data can include personally identifiable and financial information (including credit card information) necessary for access to and receipt of the Services.

1.5 "Documentation" means SkyKick's product and services descriptions, user instructions and other documentation relating to the SkyKick Platform which SkyKick may provide via the SkyKick Site or to Reseller from time to time in connection with the passing through and sale of the Services.

1.6 "Intellectual Property Rights" means all patents, copyrights, moral rights, trademarks, trade secrets, trade dress and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.

1.7 "Partner Portal" means the SkyKick platform, software and related technology for use by Resellers to facilitate and manage such Reseller's relationships with Customers with respect to the Services.

1.8 "Person" means an individual, partnership, limited liability company, association, corporation or other entity.

1.9 "SkyKick Platform" means the Services, the Software and any other technology used by SkyKick in the provision and operation of the Services or supplied by SkyKick to Reseller or Customer in connection with the provision or receipt of Services, including the Partner Portal and SkyKick Site.

1.10 "Software" means the SkyKick proprietary software provided by SkyKick to Reseller in connection with the provision of the Services, and installed by Customers for use of the Services.

1.11 "User" means each employee, contractor or agent of Customer who is authorized by SkyKick and Reseller to use the Services.

 

2. Non-Exclusive Appointment; Services.

2.1 Non-Exclusive Appointment. Subject to the terms and conditions set forth herein, SkyKick appoints Reseller, and Reseller hereby accepts appointment, as a non-exclusive reseller of the Services to Customers. The relationship created by this Agreement is non-exclusive in all respects. SkyKick reserves the right at its sole discretion to appoint and remove other partners, resellers, distributors, or representatives in the sale of the Services, or to sell the Services to Customers directly.

2.2 Customer Contracts. Reseller's sale of Services to Customers shall be governed by a written, fully executed (by the authorized signatories of both Reseller and such Customers) Customer Contract. Reseller shall provide Customers with access to the Services only pursuant to valid Customer Contracts. Reseller shall not place in any Customer Contract any term or provision that conflicts with or is otherwise inconsistent with the Privacy Policy or any terms and conditions provided by SkyKick on the SkyKick Site or to Reseller from time to time (each a "SkyKick Policy") or the terms of this Agreement.

2.3 Consent to SkyKick Terms. SkyKick's provision of the Services to Customers is contingent upon SkyKick's receipt of Customer's consent to SkyKick's terms of service applicable to such Customer's use of the Services. For each accepted Order, SkyKick will contact the applicable Customer (via email or other means) in order to obtain such consent prior to its provision of the Services. SkyKick shall have no obligation to provide Services to any Customer unless and until SkyKick obtains Customer's consent to SkyKick's terms of service.

2.4 Reseller Status. Reseller shall use reasonable, diligent efforts to market, promote and distribute the Services. Reseller is solely responsible for the means, manner and method of its performance under this Agreement. Reseller shall have full discretion to set its own prices for the sale of the Services to Customers.

2.5 Marketing and Promotion. SkyKick may provide from time to time promotional and marketing materials to Reseller (the "SkyKick Materials"). Reseller may build its own marketing strategies and market the Services using all commercially reasonable marketing concepts and means of popularizing and providing access to the Services (forums, blogs, social networks, personal or business websites, printed media, etc.); provided, however, that Reseller shall not (a) market, promote or provide access to the Services to any Person who is to Reseller's knowledge, using the Services at the time Reseller approaches or markets the Services to such entity or person; (b) utilize any marketing methods that violate this Agreement or any other SkyKick Policy; (c) infringe, dilute or otherwise violate the intellectual property rights of any third parties; or (d) violate any applicable law, rule, regulation or order in such marketing activities.

2.6 Use by Customers Only. The Services sold to Reseller under this Agreement are intended only for use by Customers and its Users. Reseller may not use the Services for its own account or for any other purpose pursuant to this Agreement.

 

3. Order Process; Partner Portal.

3.1 Registration; Partner Portal. SkyKick shall provide Resellers with an account, user name and password granting such Reseller access to and use of the Partner Portal, located at the SkyKick Site. Reseller is responsible for maintaining the confidentiality of any such account information and is fully responsible for all activities that occur under Reseller's account. During the registration process for the Partner Portal, SkyKick will request Reseller to provide certain information, including contact information, business qualifications (if applicable) and any other information required by SkyKick. Reseller represents and warrants that (a) all information provided during the registration process is accurate and complete; (b) Reseller is at least eighteen (18) years of age and has the legal capacity to enter into this Agreement; and (c) if registering on behalf of an entity or organization, Reseller is an authorized representative of such entity or organization with the authority to legally bind such entity or organization to this Agreement. If SkyKick determines that Reseller has provided false, misleading or otherwise inaccurate information to SkyKick, SkyKick shall have the right to terminate this Agreement immediately upon notice to Reseller and Reseller shall cease holding itself out as a reseller of the Services.

3.2 Orders. From time to time during the Term, Reseller may order Services from SkyKick on behalf of Customers by submitting an Order via the Partner Portal. Any Orders received from Reseller by SkyKick shall be deemed to have been authorized by Reseller and Customer. Such Order will include all required information to enable SkyKick to perform the Services for Customer as set forth in the Partner Portal, including the name of the Customer, the number of Users included in the Services, the date on which Customer requires access to the Services, and any other instructions or requirements pertinent to such Customer.

3.5 Information. Reseller is responsible for providing complete and accurate information to SkyKick with respect to all Customers in order for SkyKick to make the Services available such Customers. Reseller acknowledges that SkyKick will have access to all of the data and information provided by Reseller, Customers and Users.

 

4. Fees; Payment.

4.1 Fees. Reseller will pay SkyKick the fees for the Services in the amounts set forth in the Order ("Fees"). SkyKick will have the right to increase the Fees from time to time in its discretion. The then-current Fees for the Services will be available on the fees page of the Partner Portal, available on the SkyKick Site. The Fees charged to Reseller for the Services represent payment for Reseller's right to sell Services to Customers and Reseller's right to collect payments from Customers for such Services.

4.2 Payment Terms. All Fees for Reseller's purchase of Services shall be due and payable at the time Reseller submits an Order to SkyKick. Reseller shall pay for the Services by providing SkyKick with valid payment information in order to facilitate such purchase, including a credit card number, billing address and any related payment information required by SkyKick. SkyKick shall be deemed to have accepted an Order upon its receipt of valid Payment Information from Reseller.

4.3 Taxes. All Fees payable by Reseller are exclusive of applicable taxes and duties, including VAT and applicable sales tax. Reseller will provide SkyKick with any information requested by SkyKick to determine whether SkyKick is obligated to collect VAT from Reseller, including Reseller's VAT identification number. If Reseller is legally entitled to an exemption from any sales, use, or similar transaction tax, Reseller is responsible for providing SkyKick with legally-sufficient tax exemption certificates for each taxing jurisdiction. SkyKick will apply the tax exemption certificates to charges under Reseller's account occurring after the date SkyKick receives the tax exemption certificates. If any deduction or withholding is required by law, Reseller will notify SkyKick and will pay SkyKick any additional amounts necessary to ensure that the net amount that SkyKick receives, after any deduction and withholding, equals the amount SkyKick would have received if no deduction or withholding had been required. Additionally, Reseller will provide SkyKick with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

4.4 Audit. During the Term of this Agreement, SkyKick will have the right to audit the records of Reseller relating to Reseller's sale of the Services to Customers to ensure that Reseller is compliant with the terms and conditions of this Agreement, including the calculation of Fees in accordance with this Section 4.

 

5. Customer Data; Confidentiality.

5.1 Customer Data. Reseller represents and warrants that: (a) Reseller has the right to use, and to permit SkyKick to use, the Customer Data supplied by Customers in connection with the Services hereunder and (b) Reseller has not received notice that any such Customer Data or the use of any such Customer Data in conjunction with the Services infringe upon any third party Intellectual Property Rights or violate the terms of any license agreement or other agreement. Except with respect to SkyKick's provision of Services to Customer under an accepted Order, SkyKick bears no liability whatsoever for Reseller's management of Customer accounts, including, but not limited to, SkyKick's adherence to instructions from Reseller regarding management of Customer accounts.

5.2 Confidentiality. Each Party will, during the Term of this Agreement and thereafter, maintain in confidence the Confidential Information of the other Party and will not use such Confidential Information except as expressly permitted herein. Each Party will use the same degree of care in protecting such Confidential Information as such Party uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Each Party will use such Confidential Information solely for the purpose of carrying out its respective obligations under this Agreement. In addition, each Party: (a) will not reproduce such Confidential Information, in any form, except as required to accomplish its obligations under this Agreement; and (b) will only disclose such Confidential Information to its employees and consultants who have a need to know such Confidential Information in order to perform their duties relating to this Agreement and have been informed of the obligation to preserve the confidentiality of such information prior to receiving such information. Confidential Information will be the property of the disclosing Party during the Term of this Agreement and afterwards in perpetuity, subject only to the exceptions expressly stated in this Agreement.

 

6. Proprietary Rights. As between SkyKick and Reseller, SkyKick or its licensors own and reserve all right, other than the limited rights explicitly granted to Reseller under this Agreement, title, and interest in and to the SkyKick Platform, including without limitation the Software and any other SkyKick proprietary software or technology utilized in the provision or use of the Services, and all Intellectual Property Rights therein. Reseller acknowledges that (a) all right, title and interest in and to the Services, including the SkyKick Platform and Documentation provided in connection therewith, and all Intellectual Property Rights embodied therein or associated therewith, are and shall remain with SkyKick or its third party licensors; (b) no right or interest in the SkyKick Platform is conveyed other than the limited licenses granted herein; (c) the SkyKick Platform is protected by copyright and other intellectual property laws; and (d) the SkyKick Platform embodies valuable confidential and secret information of SkyKick or its licensors, the development of which required the expenditure of considerable time and money. Reseller will not take or encourage any action during or after the Term of this Agreement that will in any way impair the rights of SkyKick in and to the SkyKick Platform, any proprietary software or technology of SkyKick, or any Intellectual Property Rights in and to any of the foregoing.

 

7. SkyKick Services.

7.1 Provision of Services. SkyKick will, subject to all other terms and conditions of this Agreement, take commercially reasonable efforts to provide the Services to Customer. SkyKick shall provide Reseller and/or Customer with support services as reasonably necessary to facilitate SkyKick's performance of the Services.

7.2 Access to and Use of the Software. During the Term of the Agreement, SkyKick grants to Reseller a limited, nonexclusive, nontransferable right to permit and enable Customers and Users to access and use the SkyKick Platform solely in connection with Reseller's purchase and resale of Services provided under the Agreement and to use the Documentation in connection with Reseller's exercise of such right. Except for the limited licenses granted hereunder, SkyKick reserves all rights not expressly granted and no such additional rights may be implied.

 

8. Reseller Obligations and Acknowledgements.

8.1 Cooperation. Reseller understands and agrees that Reseller and Customer's full, reasonable cooperation is required in order for SkyKick to properly, efficiently and effectively perform the Services for Customer hereunder. Reseller agrees to comply with all of SkyKick's reasonable requests made in connection with the provision of Services to Customer hereunder. Reseller understands and agrees that its failure or Customer's failure to so cooperate with SkyKick could result in SkyKick's inability to properly, efficiently and effectively perform the Services hereunder. SkyKick's provision and completion of the Services is subject to (a) delays due to unanticipated Reseller or Customer requests, complications with Customer's systems, programs, accounts and data, and other unforeseen circumstances beyond the reasonable control of SkyKick, (b) Reseller's and Customer's cooperation (including the cooperation of third parties under such Customer's control) with SkyKick, as well as (c) Reseller's and Customer's compliance with this Agreement or any other SkyKick Policy. SkyKick shall have no liability whatsoever for any delays, deficiencies or failures that occur in the performance of Services as a result of Reseller's or Customer's failure to so cooperate.

8.2 Compliance with Law. Reseller will obtain all registrations, licenses and permits required to perform its obligations under this Agreement. Reseller will comply with all applicable laws, rules, regulations and orders relating to its performance under this Agreement (including, without limitation (a) those concerning the exporting, importing and re-exporting of computer software and the protection of privacy and personal information, and (b) laws and policies related to unsolicited, commercial e-mails (SPAM) or any illegal, objectionable or offensive activities).

8.3 Misrepresentations. Reseller will not make any false or misleading representations concerning the Services, or make any representations concerning the Services' specifications, features, capabilities and applicable warranties which are not consistent with or are in addition to those set forth in this Agreement, any other SkyKick Policy, the Documentation, product descriptions or other promotional materials made available by SkyKick to Reseller.

8.4 Customer Requirements. Reseller represents and warrants that it has all requisite authority to grant SkyKick access to Customer's systems and cloud computing accounts as required for SkyKick to provide the Services. Reseller acknowledges that it will be required to provide SkyKick with certain information regarding each Customer via the Partner Portal in order to enable SkyKick to provide the Services to such Customer, including the Customer Data and Customer's contact and payment information. Reseller represents and warrants that (a) it is authorized by Customer to share such Customer Data and other information with SkyKick; (b) it has disclosed to Customer that SkyKick (and not Reseller) will perform the Services; and (c) that Customer has agreed to receive communications from SkyKick (via email or other means) regarding SkyKick's performance of the Services. In order to use the Services, Customer's computer hardware, software and internet connectivity must meet certain minimum requirements as may be specified in the Documentation provided from time to time. SkyKick bears no liability or responsibility if Customers cannot access the Services due to a failure to meet these minimum requirements.

8.5 Agreement to Microsoft Terms. RESELLER AUTHORIZES SKYKICK, ON BEHALF OF CUSTOMER, TO REGISTER CUSTOMER FOR THE USE OF CERTAIN CLOUD COMPUTING SERVICES OFFERED BY MICROSOFT CORPORATION ("MICROSOFT") REQUIRED FOR SKYKICK'S PERFORMANCE OF THE SERVICES. AS A CONDITION TO RESELLER'S PURCHASE OF SERVICES HEREUNDER, AND BY AGREEING TO THE TERMS OF THIS AGREEMENT, RESELLER HEREBY REPRESENTS AND WARRANTS THAT: (A) RESELLER HAS OBTAINED PROPER AUTHORIZATION FROM EACH CUSTOMER TO PERMIT SKYKICK TO REGISTER SUCH CUSTOMER FOR A SUBSCRIPTION TO THE MICROSOFT CLOUD COMPUTING SERVICES, INCLUDING AUTHORIZATION TO SUBMIT CUSTOMER'S CONTACT AND PAYMENT INFORMATION TO MICROSOFT, (B) RESELLER HAS PROVIDED A COPY TO CUSTOMER OF THAT CERTAIN MICROSOFT ONLINE SUBSCRIPTION AGREEMENT FOR MICROSOFT OFFICE 365, AVAILABLE HERE, AND (C) RESELLER HAS RECEIVED CUSTOMER'S CONSENT TO BE BOUND BY ALL TERMS AND CONDITIONS OF SUCH SUBSCRIPTION AGREEMENT, INCLUDING ALL PAYMENT TERMS AND FEES APPLIABLE TO SUCH SUBSCRIPTION. RESELLER AUTHORIZES SKYKICK TO USE AND SUBMIT RESELLER'S NAME AS THE AUTHORIZING PARTY WHEN REGISTRING CUSTOMER FOR THE MICROSOFT CLOUD COMPUTING SERVICES UNDER THIS SECTION 8.5.

8.6 Changes to Services. SkyKick may introduce new Services and/or alter existing Services without prior notice to Reseller, Customers, Users or others, including revising the user interface, features, and functionality of the Services as part of improvements or other necessary changes to the Services during the Term. SkyKick may also update or revise the Documentation during the Term. SkyKick will have the right, in its sole discretion, to discontinue some or all of the Services, or to change some or all of the Services, upon notification to Reseller of any such discontinuation or change.

8.7 Use of the SkyKick Intellectual Property Rights. Reseller will not, and will not encourage or permit any Customer, Users or other Person to (a) use the SkyKick Platform in any manner or for any purpose other than as expressly permitted by this Agreement; (b) access or use the SkyKick Platform in a way intended to avoid incurring fees to be paid to SkyKick pursuant to this Agreement; (c) access or use the SkyKick Platform in any way that violates this Agreement or any applicable laws, rules, or regulations; (d) modify, alter, tamper with, repair or otherwise create derivative works of any software , technology, content or any Intellectual Property Rights of SkyKick included in or used to provide the SkyKick Platform; (e) reverse engineer, disassemble or decompile the SkyKick Platform or any software or technology of SkyKick included in or used to provide the Services, or (f) attempt to discover or recreate the SkyKick Platform or any software, technology or Intellectual Property Rights of SkyKick.

8.8 Responsibility for Other Parties. Reseller will be liable for any action that it permits, assists or facilitates any of its affiliates, officers, directors, employees, contractors, representatives, agents or other Person (each, a "Reseller Party," and collectively, "Reseller Parties") to take related to this Agreement, the Customer Data or the use of the SkyKick Platform. Reseller will ensure that all Reseller Parties comply with Reseller's obligations under this Agreement.

8.9 Notification of Unauthorized Use. Reseller will immediately notify SkyKick in writing of any unauthorized use of the SkyKick Platform or breach of this Agreement that comes to Reseller's attention. In the event of any unauthorized use by any third party that obtained access to the SkyKick Platform directly or indirectly through Reseller, Reseller will take all steps necessary to terminate such unauthorized use and will provide SkyKick such cooperation and assistance as requested by SkyKick in connection with SkyKick's actions to stop or prevent unauthorized use of the SkyKick Platform.

8.10 Non-Competition. For so long as SkyKick is providing any Services to Reseller or any of its Customers pursuant to this Agreement, and for one (1) year after the completion of any such Services, Reseller will not offer or provide services that are competitive with the Services provided by SkyKick hereunder, without SkyKick's prior written agreement. Reseller's access to the SkyKick Platform shall be limited to the purpose of reselling the Services to Customers. Reseller may not access and use the SkyKick Platform for the purpose of developing (or intending to develop) a product or service that contains similar capabilities or functionalities as or that otherwise competes with the Software and Services (including any other service or product designed to provide cloud computing migration and support services).

8.11 Passwords. Reseller is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other credentials and login information (collectively, "Passwords") that have been provided to Reseller or that are generated in connection with Reseller's or its Customers' use of the SkyKick Platform. Reseller will not disclose or make available Passwords other than to authorized Users, if applicable, and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords or the SkyKick Platform. Reseller and/or its Customers are fully responsible for all activities that occur in connection with the Passwords.

8.12 Downtime. SkyKick may suspend or limit access to the SkyKick Platform for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the SkyKick Platform for any reason, including as a result of power outages, system failures, maintenance, upgrades or other interruptions.

8.13 Suspension, Limitation or Termination. SkyKick may, without liability to Reseller, immediately suspend, terminate or limit access to the SkyKick Platform at any time in the event (a) SkyKick determines that the SkyKick Platform is being used in violation of applicable federal, state or local law or ordinance, this Agreement, or any other SkyKick Policy; (b) SkyKick determines that the SkyKick Platform is being used in an unauthorized or fraudulent manner or that Reseller or Customers have submitted fraudulent or inaccurate information to SkyKick; (c) SkyKick determines that Reseller's or Customers'use of the SkyKick Platform adversely affects SkyKick's equipment or service to others; (d) SkyKick is prohibited by an order of a court or other governmental agency from providing the Services; (e) of a denial of service attack or any other event which SkyKick determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; or (f) of a security incident or other disaster that impacts the Services or the security of Customer Data. SkyKick shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Resellers use of the SkyKick Platform or a Customer's use of the Services in accordance with this Section 8.13.

8.14 Postings Regarding the Services. Reseller grants SkyKick a perpetual, irrevocable, royalty-free, non-exclusive, worldwide, sublicensable permission to use, edit, reproduce, distribute, display, and publish at any time, in whole or in part and in any media, and at SkyKick's discretion (including, without limitation, publication on the Internet) any feedback, comments, reviews, or other postings made by Reseller regarding SkyKick or the Services, whether to SkyKick directly, on any third party websites, or otherwise ("Postings"). Reseller acknowledges and agrees that Postings may include, without limitation, Reseller's name, statements, and employer name (if applicable), and agrees to provide additional appropriate testimonial affidavits and supporting information and documentation at SkyKick's request. SkyKick has the right to identify Reseller as a reseller of the Services in SkyKick's promotional materials and releases, however printed or displayed and in any medium of expression, and if applicable, to use Reseller's corporate logo as it appears from time to time on Reseller's website or other promotional materials. Reseller represents and warrants such Postings reflect Reseller's honest beliefs and real experience in connection with SkyKick or the Services, are made voluntarily, and are provided without compensation to Reseller. Reseller waives, releases, and discharges SkyKick and its employees, officers, affiliates, licensees, successors, assigns, agents, customers, and suppliers from any and all claims Reseller may now or later have (whether related to copyright, right of privacy, right of publicity, performer rights, tort, contract, statute or otherwise) by reason of any use, edit, reproduction, distribution, display, or publication of the Postings by SkyKick or by any third party authorized to do so by SkyKick. Reseller will not to assert (a) any ownership or other right or interest in the Postings or (b) any claim for compensation related to the Postings or the use, reproduction, distribution, or publication thereof. Reseller may withdraw Reseller's permission to SkyKick to use, edit, reproduce, distribute, display, or publish Postings at any time by contacting SkyKick at support@skykick.com, provided that such withdrawal shall only apply to Postings which SkyKick can easily remove from the SkyKick Site or other websites, and shall not apply to any printed materials or publications in circulation or ordered for circulation at the time of such withdrawal.

 

9. Representations and Warranties; Disclaimer.

9.1 Warranty. Each Party represents and warrants that: (a) it is validly existing and in good standing under the laws of its state of incorporation; (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) its execution and delivery of this Agreement and its performance of its obligations under this Agreement will not result in its breach of or default under any agreement or arrangement by which it is bound; (d) the person entering into this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; and (e) this Agreement is valid, binding and enforceable against it in accordance with its terms.

9.2 Disclaimers. THE SKYKICK PLATFORM IS PROVIDED "AS IS." EXCEPT AS PROVIDED IN SECTION 9.1, SKYKICK AND ITS AFFILIATES MAKE NO (AND HEREBY DISCLAIM ALL) WARRANTIES OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING, WITH RESPECT TO THE SKYKICK PLATFORM, ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY, (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), (C) ANY WARRANTY THAT THE SKYKICK PLATFORM WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT THE CUSTOMER DATA WILL NOT BE LOST OR DAMAGED, AND (D) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.

10. Limitation of Liability. IN NO EVENT WILL SKYKICK BE LIABLE TO RESELLER, CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY PRODUCTS, SERVICES OR SKYKICK APPLICATIONS PROVIDED BY SKYKICK, INCLUDING THE SKYKICK PLATFORM, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SKYKICK HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER SKYKICK NOR ANY OF ITS AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) RESELLER OR CUSTOMER'S INABILITY TO USE THE SERVICES AS A RESULT OF ANY DOWNTIME OF ALL OR A PORTION OF THE SKYKICK PLATFORM FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY RESELLER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER'S USE OF OR ACCESS TO THE SKYKICK PLATFORM; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF THE CUSTOMER DATA OR OTHER DATA. IN ANY CASE, SKYKICK AND ITS AFFILIATES' AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES ACTUALLY PAID BY RESELLER TO SKYKICK FOR SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

 

 

11. Indemnification.

11.1 General. In addition to all other indemnification obligations set forth in other sections of this Agreement, Reseller, at its sole expense, will defend, indemnify and hold SkyKick and its directors, officers, employees, contractors, agents, successors and assigns (collectively, the "SkyKick Indemnitees") harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) (collectively, "Liabilities") resulting from any claim (including third party claims), suit, action, or proceeding against any SkyKick Indemnitee, whether successful or not, resulting from or arising in connection with (a) Reseller's sale, failure to sell, or provision of access to the Services to Customer; (b) Reseller or Reseller Party's use of the Customer Data or the SkyKick Platform in connection with the Agreement; (c) any breach of this Agreement or an applicable Customer Contract or a violation of applicable law by Reseller or a Reseller Party; (d) any statement, representation, warranty, contractual obligation or other commitment made by Reseller on behalf of SkyKick that is inconsistent with or not provided by SkyKick in the terms of this Agreement, the Documentation provided by SkyKick or any SkyKick Policy; or (f) the negligence or willful misconduct of Reseller or any Reseller Party.

11.2 Process. SkyKick will reasonably notify Reseller of any claim subject to the indemnification obligations set forth in this Agreement, but the failure of SkyKick to so notify Reseller will only affect Resellers' indemnification obligations hereunder to the extent that such failure materially prejudices Reseller's ability to defend the subject claim. Provided that Reseller promptly investigates and defends any such claim, Reseller will have control over the defense and settlement thereof at its sole cost and expense. Notwithstanding the foregoing, Reseller will not settle or compromise any claim in a manner that does not fully release SkyKick from such claim or results in a restriction on or admission by SkyKick or subjects SkyKick to any additional obligations. In the event that SkyKick determines, in its sole discretion, that Reseller has failed to promptly investigate or rigorously defend any claim for which Reseller has an obligation to indemnify, SkyKick will have the right to defend and settle such claim at Reseller's cost and expense.

 

12. Term; Termination; Effect of Termination.

12.1 Term. This Agreement will commence on the Effective Date and continue in effect unless otherwise terminated by the Parties hereunder (the "Term").

12.2 Termination. Either Party may terminate this Agreement, with or without cause, upon five (5) days written notice to the other Party. In the event of termination under this Section 12.2, SkyKick will perform all Services under Orders received and accepted prior to such termination date.

12.3 Effect of Termination. Upon any expiration or termination of this Agreement for any reason, (a) any and all Liabilities accrued prior to the date of such expiration or termination will survive; (b) each Party will promptly provide the other Party with all Confidential Information then in its possession or destroy all copies of such Confidential Information, at the disclosing Party's sole discretion and direction; and (c) Reseller will (i) cease to hold itself out in any fashion as a reseller of the Services and cease the placement of Orders; (ii) promptly discontinue use of the SkyKick Platform; (iii) promptly cease all use of any promotional, marketing or instructional materials relating to the Services and immediately return such materials to SkyKick. The following sections will survive any expiration or termination of this Agreement: Sections 1, 4, 5, 6, 8.10, 8.14, 9.2, 10, 11, 12.3 and 13.

 

13. General Provisions.

13.1 Entire Agreement. This Agreement, the Order Form or any other terms and conditions referenced in these this Agreement (the "Additional Policies") are the entire agreement of the Parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof.

13.2 Governing Law; Venue; Dispute Resolution. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Washington, without resort to its conflict of law provisions. The Parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state and federal courts located in Seattle, Washington, and the Parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement.

13.3 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Reseller, by operation of law or otherwise, without the prior written consent of SkyKick, and any attempted transfer, assignment or delegation without such consent will be void and without effect. SkyKick may freely assign this Agreement and any right or duty under this Agreement to an affiliate or other Person by operation of law, change of control, merger, reorganization, or sale of stock or all or substantially all of its assets. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.

13.4 Relationship of the Parties. Neither Party will, for any purpose, be deemed to be an employee, representative, owner or Reseller of the other Party; and, the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.

13.5 References. Neither Party may disclose the specific terms of this Agreement or issue a public statement or press release regarding this Agreement without the prior consent of the other Party. Notwithstanding the foregoing, SkyKick may, during the Term of this Agreement, identify Reseller as an authorized reseller of the Services and display Reseller's logo and/or other branding materials on SkyKick's website and other marketing materials.

13.6 Nonwaiver. The failure of either Party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.

13.7 Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any Party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.

13.8 Notice. Any notice, demand or communication required or permitted to be given by any provision of this Agreement will be deemed to have been sufficiently given or served for all purposes if: (a) delivered personally; (b) deposited with a pre-paid messenger, express or air courier or similar courier; or (c) transmitted by telecopier, facsimile, email or other communication equipment that transmits a facsimile of the notice to like equipment that receives and reproduces such notice. Notices will be addressed to a Party at the Party's address, facsimile number or email address as set forth below. Notices will be deemed to have been received (i) in the case of personal delivery, upon receipt, (ii) in the case of messenger, express or air courier or similar courier, two days after being deposited, and (iii) in the case of telecopier, facsimile, email or other communication equipment, the day of receipt as evidenced by a telecopier, facsimile, email or similar communication equipment confirmation statement. Further, either Party may change the individual designated below or its contact information or both by notice in accordance with this Section.

13.9 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision, the affect Party's performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided, that the affected Party: (a) provides the other Party prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event.

13.10 Modifications to the Terms and Conditions. SkyKick may modify these Terms and Conditions or any Additional Policies at any time by posting a revised version of these Terms and Conditions or Additional Policies on the SkyKick Site. Unless otherwise set forth in this Agreement, the revised terms shall be effective upon the earlier of (a) ten (10) days after posting and/or notifying Reseller of the changes; or (b) upon Reseller's acceptance if SkyKick provides a mechanism for the acceptance of the revised terms, such as a click-through confirmation or acceptance button. By continuing to use the SkyKick Platform or resell the Services after the effective date of any revisions to these Terms and Conditions or any Additional Policies, Reseller agrees to be bound by the revised Terms and Conditions or any revised Additional Policies. It is Reseller's responsibility to check the SkyKick Site regularly for changes to these Terms and Conditions or the Additional Policies, as applicable. If Reseller disagrees with any modifications to these Terms and Conditions or any Additional Policies, Reseller's sole and exclusive remedy shall be to terminate the Agreement and the receipt of Services in accordance with Section 12 herein.