Skyepack |Master Services Agreement

!DOCTYPE html>
SKYEPACK, INC.
MASTER SERVICES AGREEMENT
Last updated as of May 24th, 2023
THIS MASTER SERVICES AGREEMENT GOVERNS CUSTOMER’S USE OF SKYEPACK
PRODUCT(S) (AS DEFINED BELOW) AND IS AN AGREEMENT BETWEEN CUSTOMER AND THE
APPLICABLE SKYEPACK CONTRACTING ENTITY SPECIFIED IN SECTION 1 BELOW.
CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
BY ACCEPTING THIS AGREEMENT, EITHER BY: (1) EXECUTING A QUOTE THAT REFERENCES
THIS AGREEMENT; (2) BY EXECUTING A COPY OF THIS AGREEMENT DIRECTLY; OR (3)
ACCESSING THE SKYEPACK PRODUCT(S). THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS
ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY AND REPRESENTS THAT
THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS
AND CONDITIONS. THE TERM “CUSTOMER,” AS FURTHER DEFINED BELOW, WILL REFER TO
SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES
NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS,
SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MUST NOT USE Skyepack
PRODUCT(S).
1. DEFINITIONS.
1.1 Account Country is the country associated with the Customer account. If Customer has provided a
valid tax registration number for Customer’s account, then Customer’s Account Country is the country
associated with such tax registration. If Customer has not provided a valid tax registration, then
Customers Account Country is the country where the Customer billing address is located.
1.2 “Agreement” means this Master Services Agreement and all referenced exhibits.
1.3 “Customer” means the school, school district or other entity obtaining subscription access to
Skyepack’s Subscriptions Services, licenses a Licensed Product(s), or purchases Skyepack Services.
1.4 “De-identified Data” means data originally derived from Customer data where personally identifiable
information and other similar attributes about such data have been removed so that no individual
identification can be made.
1.5 “Documentation” means all written user information, whether in electronic, printed or other format,
delivered or made available to Customer by Skyepack with respect to Skyepack Product(s), now or in
the future, including instructions, manuals, training materials, and other publications that contain,
describe, explain, or otherwise relate to Skyepack Product(s).
1.6 “Embedded Applications” means software developed by third parties that resides within the
software developed by Skyepack as part of the Skyepack Product(s) and performs a very specific set of
functions.
1.7 “Hosting Services” means the hosting of the Customer’s Skyepack Product(s) and Third Party
Software by Skyepack or its hosting providers from a server farm that is comprised of application, data
and remote access servers used to store and run the Skyepack Product(s) and Third Party Software,
including associated offline components, as further detailed in Exhibit C (Hosting Services Policy).
1.8 “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design
rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights,
know-how, other trade secret rights, and all other intellectual property rights, derivatives thereof, and
forms of protection of a similar nature anywhere in the world.
1.9 “Licensed Product(s)” means all software (including Embedded Applications) provided by Skyepack
to Customer via an on-premise license and subsequent versions provided under Support Services and
all related Documentation provided to Licensee pursuant to this Agreement, now or in the future;
provided, however, that Licensed Product(s) will not include any Third Party Software.
1.10“Licensed Site(s)” means the internet address of the web-based, Skyepack
Product(s) whether hosted as a SaaS solution or hosted on-premise by the Customer or their third
party vendor listed on a Skyepack Quote. 1.11 “Licensee” means the school, school district or other
entity licensing a Licensed Product(s) for an on-premise usage. 1.12 Parties means the Skyepack
Contracting Entity and the Customer of the Skyepack Product(s).
1.13 “Skyepack Contracting Entity” “Skyepack” means Skyepack, Inc., 1281 Win Hentschel Blvd., West
Lafayette, IN. 47906.
1.14 Skyepack Product(s)” means any Licensed Product(s), Subscription Service(s), or other product
or Services provided to Customer and described on a Quote.
1.15 “Professional Services” means the services which may be further discussed and described
through a Statement of Work or Quote, pursuant to Exhibit B (Professional Services Policy) of this
Agreement.
1.16 “Provincial Reporting Code (or PRC)” means Skyepack Product(s) that may be available only to
Canadian-based Customers to assist Customer in meeting specific provincial reporting requirements
and that is designated as Provincial Reporting Code by Skyepack.
1.17 “Quote means Skyepack’s standard order form that (i) specifies the Skyepack Product(s) and
other Services provided to Customer; (ii) references this Agreement; and (iii) is signed or incorporated
to a signed agreement by authorized representatives of both Parties and deemed incorporated into
the Agreement.
1.18 “SaaS” means the acronym for the phrase “software as a service”.
1.19 “Services” means any combination of the following: a) Support Services, b) Hosting Services,
and/or c) Professional Services.
1.20 “Subscription Service(s)” means all SaaS software (including Embedded Applications) and
subsequent versions provided under Support Services and all related Documentation provided to
Customer pursuant to this Agreement, now or in the future; provided, however, that Subscription
Services will not include any Third Party Software.
1.21 “Support Services” is defined in Exhibit A (Support Policy).
1.22 “State Reporting Code (or SRC)” means Skyepack Product(s) that may be available to Customer to
assist Customer in meeting specific state reporting requirements and that is designated as State
Reporting Code by Skyepack.
1.23 “Statement of Work” or “SOW” means any Professional Services project made between the Parties
which references and incorporates the terms of this Agreement, and sets out the details of a particular
project, including, without limitation, any applicable (i) methodologies; (ii) project responsibilities; or (iii)
estimated or actual pricing.
1.24 “Term” means the duration of the Agreement as described in section 11.1.
1.25 Third Party Software means software products supplied or developed for a particular purpose by
someone other than the Skyepack Contracting Entity and is not licensed by Skyepack. Third Party
Software will not include Embedded Applications as defined herein. For clarity, Skyepack licenses the
Embedded Applications to Customer as part of Subscription Services and Licensed Products, whereas
Skyepack is not the licensor of Third Party Software.
1.26 “Transaction Data” mean system usage information of a user who progresses through the
applications and functions of a Skyepack Licensed Product and other third party systems to which the
user authorizes.
1.27 “User(s)” means individuals authorized by the Customer who access and utilize Skyepack
Product(s). Users will include authorized representatives of the Customer, teachers, students, parents
and/or student guardian(s), and applicants as applicable to the respective Skyepack Product(s).
2. Skyepack PRODUCT SUBSCRIPTION. The type of subscription or license grant applicable to
Customer will be specified in the Quote.
2.1 SUBSCRIPTION SERVICE. Subject to this Agreement and the applicable portions of the Privacy
Policy located at http://www.Skyepack.com/privacy, as such policies may be updated from time to time,
Skyepack will (a) make the Subscription Services available to Customer and for the contracted number
of Users at the Licensed Site(s) to and in conformance with the applicable Documentation; (b) provide
applicable Skyepack standard support for the Subscription Services to Customer and Users, and
upgraded support if purchased, as described in Exhibit A (Support Policy); (c) use commercially
reasonable efforts to make the Subscription Services available, except for: (i) planned downtime (of
which Skyepack will give advance electronic notice), and (ii) any force majeure event as described in
Section 14.3.2 (Force Majeure), internet service provider failure or delay, Third Party Software, or denial
of service attack; and (d) provide the Services in accordance with its policies, existing laws and
government regulations applicable to Skyepack’s provision of its Subscription Services to its customers
generally (i.e., without regard for Customer’s particular use of the Subscription Services). All rights not
expressly granted to Customer herein are expressly reserved by Skyepack.
2.2 LICENSE GRANT. Where the Customer is contracts for an on-premises deployment of a Licensed
Product , Skyepack, during the term stated in the Quote, grants the Customer a restricted, personal,
non-exclusive, non-transferable, terminable access to use such Licensed Product specified in
Skyepack’s Quote, only at the Licensed Sites, not to exceed the maximum student enrollment as set
forth in Section 7 (Pricing, Enrollment Increases) of this Agreement. As part of the Licensed Product,
Skyepack will provide the Support Services and Professional Services mutually agreed upon via a
Statement of Work. Licensed Product will only be used as expressly authorized by this Agreement. All
rights not expressly granted to Customer herein are expressly reserved by Skyepack.
2.3 Restrictions on Subscription Services and Licensed Product. The Skyepack Product(s) may not
be accessed by Skyepack’s competitors, except with Skyepack’s prior written consent.
2.3.1 Customer will use the Skyepack Product(s) only for the internal business purposes of Customer
and not: (a) to store or transmit malicious code, (b) interfere with or disrupt the integrity or performance
of Skyepack Product(s) or third-party data contained therein or any systems or networks; or (c) violate
the regulations, policies, or procedures of such networks used with the Skyepack Product(s), or (d)
attempt to gain unauthorized access to a Skyepack Product or its related systems or networks, the
Skyepack data or the data of any other Skyepack customer.
2.3.2 In no event may Skyepack Product(s): (a) be used other than at the Licensed Sites; (b) exceed the
maximum User count for the Skyepack Product as stated in the Quote; (c) be used to perform service
bureau functions for third parties, or to process or manage data for websites other than the Licensed
Sites; (d) be made available via a network or otherwise to any school, school district or third party other
than the Licensed Sites; or (e) be accessed for purposes of monitoring their availability, performance or
functionality, or for any other benchmarking or competitive purposes.
2.3.3 Customer will ensure its Users will not, and itself will not, whether through any affiliate, employee,
consultant, contractor, agent or other third party: (a) sell, resell, distribute, host, lease, rent, license or
sublicense, in whole or in part, the Skyepack Product(s); (b) decipher, decompile, disassemble, reverse
assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms,
tags, specifications, architecture, structure or other elements of the Skyepack Product(s), in whole or in
part, for any purposes or otherwise; (c) write or develop any derivative works based upon the Skyepack
Product(s). Customer will hold Skyepack harmless from claims for damages resulting from Customer’s
misuse of the Skyepack Product(s), including Skyepack’s Intellectual Property Rights. Customer will use
commercially reasonable efforts to prevent unauthorized access to, or use of, the Skyepack Product(s),
and notify Skyepack promptly of any such unauthorized access or use. Customer will not transfer,
assign, provide or otherwise make Skyepack Product(s) or Services available to any other party without
the prior written consent of Skyepack. Any attempted sublicense, assignment, or transfer of any rights,
duties or obligations by Customer in violation of this Agreement will be void.
3. PROPRIETARY RIGHTS
3.1 Intellectual Property Rights. Skyepack alone owns all rights, titles and interests, including all
related Intellectual Property Rights, in and to the Skyepack Product(s) and Services. This Agreement is
not a sale and does not convey to Customer any rights of ownership in or related to the Skyepack
Product(s) and Services, or the Intellectual Property Rights owned by Skyepack. Customer will not
accrue any residual rights to the Skyepack Product(s), including any rights to the Intellectual Property
Rights in connection therewith.
3.2 Trademarks. The Skyepack name, the Skyepack logo, product names associated with the
Skyepack Product(s) and any other marks, logos, designs, sound, trade dress, etc. are trademarks of
Skyepack, and no right or license is granted by this Agreement to their use. 3.3 Confidentiality. To the
extent allowed under applicable law, Customer agrees that the terms of this Agreement, including all
pricing for Skyepack Product(s) and Services, must be kept confidential and not disclosed to any third
party without the prior written consent of Skyepack. Customer agrees that Skyepack may publicly refer
to Customer (both in writing and orally) as a client, and may identify Customer as a client, among other
places, on its website, in press releases, and in sales materials and presentations. Customer agrees to
keep Skyepack Product(s) confidential and to prevent unauthorized disclosure or use of Skyepack
Product(s) in Customer’s possession. Customer will notify Skyepack immediately in writing of any
unauthorized use or distribution of Skyepack Product(s) of which Customer becomes aware and will
take all steps necessary to ensure that such unauthorized use or distribution is terminated. For any
Skyepack Product(s) for which Skyepack makes available passwords or other user identification
technology to access such Subscription Services, Customer will advise all Users of such passwords or
other user identifications that such passwords or user identifications must be maintained in confidence
and not transmitted or shared. Customer is solely responsible for maintaining the confidentiality of each
username and password used and is solely responsible for any and all activities that occur under all
Customers accounts. Customer agrees to notify Skyepack immediately of any unauthorized use of
Customers accounts or any other breach of security. Skyepack will not be liable for any loss that
Customer may incur as a result of someone else using Customer’s passwords or accounts, either with
or without the Customers knowledge.
Skyepack agrees to use commercially reasonable efforts to maintain the confidentiality of Customer
confidential information that is disclosed to Skyepack in connection with the performance of Services,
and to use such Customer confidential information solely for purposes of performing Services hereunder.
De-identified Data used by Skyepack for internal research, and improvement of Skyepack Products is
not subject to this section’s confidentiality obligations. While Skyepack will not rent or sell information for
marketing purposes and will not share or sell Customer data with third parties for marketing purposes,
Customer hereby grants Skyepack permission to use, copy, and/or combine with any De-identified Data
the Customer and Users may generate within and through Licensed Products or Subscription Services.
Skyepack will require its employees, agents and subcontractors performing work hereunder to enter into
a written agreement with Skyepack that imposes obligations that are substantially similar to those
imposed on Skyepack hereunder. For purposes of this Section, "Customer confidential information"
means any student or personnel data belonging to Customer, or any other Customer information or data
labeled or identified as confidential at the time of disclosure, provided, however, that this definition and
the obligations of this Section will not extend to any information that: (a) is or becomes publicly known
through no fault or negligence of Skyepack; (b) is or becomes lawfully available from a third party without
restriction; (c) is independently developed by Skyepack; or (d) is disclosed without restriction by
Customer to any third party at any time. Customer grants to Skyepack a non-exclusive, royalty-free
license to use equipment, software, Customer data, or other material of the Customer solely for the
purpose of enabling Skyepack to perform its obligations under the Agreement.
3.4 Public Record Act. Notwithstanding anything herein to the contrary in section 3.3, Skyepack
acknowledges that, to the extent Customer is subject to public record acts or freedom of information
acts, Skyepack will work with Customer to provide appropriate information in response to such requests,
to the extent such requested information is not Skyepack’s proprietary information or otherwise
exempted from disclosure.
3.5 Customer Data Security and Privacy. Skyepack will abide by its policy, as set forth in Exhibit D
(Data Privacy and Security Policy) with respect to the security and privacy of its Customers data within
the Skyepack Product(s).
3.6 Use of Feedback. Customer grants to Skyepack a worldwide, perpetual, irrevocable, royalty-free
license to use and incorporate into Skyepack Product(s) and Services any suggestion, enhancement
request, recommendation, correction or other feedback provided by Customer or Users.
4. SUPPORT AND OTHER SERVICES. As part of the Skyepack Product(s), Skyepack will provide the
Support Services set forth in Exhibit A (Support Policy) and Professional Services mutually agreed
upon via a Statement of Work pursuant to Exhibit B (Professional Services Policy). Customers license
of Skyepack Product(s) does not, by itself, entitle Customer to any support, upgrades, patches, fixes or
the like for Subscription Services; Customer must maintain a current Support Services subscription and
pay any applicable Support Services fees to be eligible for Support Services. Support Services must be
purchased for all licenses in Customer’s possession. Support Services may not be purchased or
renewed for a subset of such licenses only. Support Services may not be used as a substitute for
Professional Services.
5. FEES AND TAXES. Customer agrees to pay Skyepack, in accordance with Skyepack’s invoice
terms, the fees charged for the Skyepack Product(s) and related Services and/or other items ordered by
Customer, together with any other charges made in accordance with this Agreement, and all applicable
sales, use or other taxes or duties, however designated, except for taxes based on Skyepack’s net
income. Customer agrees to pay for Skyepack’s pre-approved reasonable travel and lodging expenses
for Professional Services performed at Customer’s premises. If Customer claims tax-exempt status,
Customer agrees to provide evidence of such tax exemption to Skyepack. To the extent that such tax
exemption cannot be properly claimed or does not extend to certain taxes or transactions, Customer will
be responsible for any and all taxes and assessments that arise from this Agreement and related
transactions (except for taxes based upon Skyepack’s net income). Customer will pay a monthly charge
of 1.5% (18% annually) on all amounts not paid when due, or, if a lower maximum rate is established by
law, then such lower maximum rate. All pricing set forth in any Skyepack Quote or invoice will be in
United States dollars unless otherwise specified.
6. THIRD PARTY SOFTWARE LICENSE TERMS; EMBEDDED APPLICATIONS; OPEN SOURCE
SOFTWARE. Third Party Software is licensed directly to the Customer pursuant to separate license
terms between Customer and the third party supplier. All support, warranties, and services related to
Third Party Software are provided by the supplier of the Third Party Software under such third party’s
terms and conditions, and not by Skyepack. For clarity, Skyepack licenses the Embedded Applications
to Customer as part of Subscription Services and Licensed Products, whereas Skyepack is not the
licensor of Third Party Software. Skyepack will have no obligation to provide support for any customized
software or any third-party applications not part of the Skyepack Product(s). Further, Skyepack will not
be responsible for providing support: (i) for problems caused by Customer ’s use of or access to the
Skyepack Product(s) other than as intended; (ii) for any use in violation of this Agreement; or (iii) for any
unauthorized modifications made to the Skyepack Product(s) by Customer or any third party. In the
event the need for Support Services provided are traced to Customers or a third party’s errors,
unauthorized use, or system changes, fees and expenses for said Support Services may be billed to
Customer at Skyepack’s then current rates and will be paid promptly by Customer. Only Sections 5, 6, 9
and 12 of this Agreement apply to Third Party Software and any related support and services set forth in
this Agreement. In addition, Skyepack Product(s) may contain Embedded Applications. Certain
Embedded Applications may also be subject to “open source” licensing terms. In some cases, the open
source licensing terms may conflict with portions of this Agreement, and to the extent of any such
conflict, the open source licensing terms will govern, but only as to the software components subject to
those terms. Notwithstanding the foregoing, Customer acknowledges that if any open source software
component is licensed under terms that permit Customer to modify such component, and if Customer
does so modify such component, then Skyepack will not be responsible for any incompatibility due to
such modifications.
7. PRICING; ENROLLMENT INCREASES. Pricing for access to Skyepack Product(s) is based on the
number of Users at the Licensed Sites. If Customer accesses Skyepack Product(s) with more than the
number of Users purchased as indicated in the Quote, then Skyepack may submit an amended invoice
for the amount of such excess usage, and Customer will pay the fees applicable to the variance within
30 days of the invoice date. Any such increase in Users will be maintained through the end of the
then-current term. Such additional fees will be computed by multiplying the then-current per student
license and support fees for Skyepack Product(s) by Customers additional User count. Customers
subsequent Support Services invoices will be based on the increased Users as well.
8. COMPATIBLE PLATFORMS/HARDWARE. Where applicable, Customer will be responsible for
obtaining and maintaining all telephone, computer hardware, and other equipment needed for access
to and use of the Skyepack Product(s) and all charges related thereto. Customer is responsible for
obtaining and maintaining an appropriate operating environment with the necessary hardware,
operating system software and other items required to use and access Skyepack Product(s).
Skyepack will not be responsible for any incompatibility between Skyepack Product(s) and any
versions of operating systems, hardware, browsers, or other products not specifically approved in
writing by Skyepack for Customers use with Skyepack Product(s). Skyepack will make written
requirements available to Customer at Customers request.
9. LIMITED WARRANTY. Skyepack warrants that the media on which Licensed Product is recorded
will be free from defects in materials and workmanship under normal use for a period of ninety (90)
days from the date of purchase. Licensee’s exclusive remedy under this Section will be replacement of
the defective media. Skyepack warrants that for Subscription Services during an applicable
subscription term (a) this Agreement, the Quote, and the Documentation will accurately describe the
applicable administrative, physical, and technical safeguards for protection of the security,
confidentiality and integrity of Customers data, (b) Skyepack will not materially decrease the overall
security of Subscription Services, and (c) Skyepack will not materially decrease the overall functionality
of the Subscription Services. For any claimed breach of a warranty above, the Customer and Skyepack
agree to first negotiate a resolution in good faith; and, if necessary, refer the matter to senior
representatives of each Party for timely resolution.
10. DISCLAIMER OF OTHER WARRANTIES. Skyepack PRODUCT(S) ARE PROVIDED “AS IS”
AND WITHOUT WARRANTY OF ANY KIND (EXCEPT AS PROVIDED IN SECTION 9), AND
Skyepack AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, POTENTIAL IMPLEMENTATION
DELAYS, AND NON INFRINGEMENT. Skyepack DOES NOT WARRANT THAT THE
FUNCTIONALITY CONTAINED IN THE Skyepack PRODUCT(S) WILL MEET CUSTOMER’S
REQUIREMENTS, OR THAT THE OPERATION OF THE Skyepack PRODUCT(S) OR HOSTING
SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE Skyepack
PRODUCT(S) WILL BE CORRECTED. FURTHERMORE, Skyepack DOES NOT WARRANT OR
MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE
Skyepack PRODUCT(S) IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, SECURITY,
OR OTHERWISE. CUSTOMER AGREES THAT THE USE OF Skyepack PRODUCT(S) IS AT
CUSTOMER’S OWN RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY
Skyepack OR A Skyepack REPRESENTATIVE WILL CREATE A WARRANTY OR IN ANY WAY
INCREASE THE SCOPE OF ANY WARRANTY. SOME JURISDICTIONS MAY NOT ALLOW THE
EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT
FULLY APPLY TO CUSTOMER.
11. TERM AND TERMINATION
11.1 Term. This Agreement commences on the date Customer first executes it and continues until the
term of all Skyepack Product(s) or Services provided under any applicable Quote hereunder have
expired or have been terminated.
11.2 Term of Purchased Subscriptions. The term of each subscription or license will be as specified
in the applicable Quote specifying a start and end date. Except as otherwise specified in a Quote,
renewal of promotional or one-time priced subscriptions or
licenses will be at Skyepack’s discretion.
11.3 Suspension. Skyepack will have the right to suspend performance under this Agreement in the
event that Customer is notified, with email notice being sufficient, that it is in breach of any of its
obligations under this Agreement and fails to cure the breach within five (5) days of the notice.
11.4 Termination for Breach. Either party will have the right to terminate this Agreement in whole or
in part upon thirty (30) days written notice to the other party, in the event the other party materially
breaches this Agreement and fails to correct such breach within such thirty (30) day period; provided
that Skyepack will have the right to terminate this Agreement immediately upon written notice in the
event that Customer breaches any of its obligations under Section 2 (Skyepack Product Subscription)
or Section 3 (Proprietary Rights). Customer further acknowledges that, as breach of the provisions of
Section 3 could result in irreparable injury to Skyepack, Skyepack will have the right to seek equitable
relief against any actual or threatened breach thereof, without proving actual damages.
11.5 No Termination for Convenience. Customer is not entitled to terminate this Agreement for any
reason other than for the specific reasons set out in this Agreement or as expressly mandated by law.
No termination for convenience will be permitted.
11.6 Termination for Non Appropriation. The Parties acknowledge and agree that if Customer is a
governmental entity that is bound to statutory provisions that prevent it from committing to the payment
of funds beyond its fiscal year, and if funds are not allocated for the Skyepack Product(s) and Services
captured in an applicable Quote that are the subject of this Agreement following the commencement of
any succeeding fiscal year during which the Quote may continue, then Customer may terminate the
applicable Quote without liability for any termination charges, fees, or penalties at the end of its last
fiscal period for which funds were appropriated. Customer will be obligated to pay all charges incurred
through the end of the last fiscal period for which funds were appropriated. Customer will give
Skyepack written notice that funds have not been appropriated (a) immediately after Customer
receives notice of such non appropriation; and (b) at least thirty (30) days prior to the effective date of
such termination. Customer will not utilize this clause as a right to terminate any Quote nor this
Agreement for convenience. Skyepack reserves the right to seek documentation evidencing such non
appropriation of funds.
11.7 Effects of Termination. In the event of any termination of all or any portion of this Agreement,
Customer will not be relieved of any obligation to pay any sums of money that have accrued prior to the
date of termination. In addition, the provisions of Sections 3, 5, 6, 9, 11, 12, 13, 14 and 13 will survive
termination of this Agreement. Immediately upon any termination of a subscription or license for any
Subscription Services or Licensed Product under this Agreement, Customer will, at its own expense,
either return to Skyepack or destroy all copies of such Skyepack Product(s), and Customer’s
authorized representative will forward written certification to Skyepack that all such copies of such
Skyepack Product(s) have either been destroyed or returned to Skyepack.
11.8 Liquidated Damages. In the event that Customer enters into a multi-year Quote with Skyepack
and Customer terminates the contract or any portion thereof, Customer agrees to pay Skyepack the
remaining sum due to Skyepack through the stated term in the applicable Quote as liquidated
damages, as actual damages being impossible to calculate. This clause will not apply in the event
Customer terminates this Agreement as (a) a result of Skyepack’s breach in accordance with
Subsection11.4 herein, or (b) as a result of non appropriation of funds in accordance with Subsection
11.6 herein.
12. LIMITATION OF LIABILITY. Skyepack WILL NOT BE LIABLE TO CUSTOMER FOR ANY
SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR LOST
PROFITS, LOST FUNDING, LOST SAVINGS, OR LOST OR DAMAGED DATA; OR FOR CLAIMS
OF A THIRD PARTY; ARISING OUT OF THIS AGREEMENT, SUBSCRIPTION SERVICES,
SUPPORT, SERVICES, OR OTHER ITEMS PROVIDED, OR THE USE OR INABILITY TO USE ANY
OF THE FOREGOING, EVEN IF Skyepack HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR THEY ARE FORESEEABLE. IN ANY EVENT, IN RESPECT OF ANY CLAIM,
DEMAND, OR ACTION ARISING OUT OF THIS AGREEMENT, CUSTOMER WILL BE LIMITED TO
RECEIVING ACTUAL AND DIRECT DAMAGES IN A MAXIMUM AGGREGATE AMOUNT EQUAL
TO THE CHARGES PAID BY CUSTOMER TO Skyepack HEREUNDER FOR THE APPLICABLE
Skyepack PRODUCT ON WHICH THE CLAIM IS BASED IN THE PREVIOUS TWELVE (12)
MONTHS. IN ADDITION, IN NO EVENT WILL THE LIABILITY OF Skyepack RELATING TO
Skyepack PRODUCT(S) EXCEED THE TOTAL AMOUNT OF MONEY PAID BY CUSTOMER TO
Skyepack DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD WITH
RESPECT TO THE PARTICULAR SUPPORT SERVICES OR HOSTING SERVICES, OR
PROFESSIONAL SERVICES ON WHICH THE CLAIM IS BASED.
13. INDEMNIFICATION
13.1 Indemnification by Skyepack. Subject to Section 12 (LIMITATION OF LIABILITY) Skyepack
herby agrees to defend, indemnify, and hold harmless the Customer from and against any and all
losses, liabilities, costs, expenses and damages arising out of or relating to any claim by a third party
alleging infringement of any Intellectual Property Rights as to the Skyepack Product, provided that
Skyepack will have received from Customer (i) prompt written notice of such claim; (ii) the exclusive
right to control and direct the investigation, defense and settlement of such claim; and (iii) all
reasonable necessary cooperation of Customer. If Customer’s use of the Skyepack Product is
enjoined, Skyepack may (i) substitute for the Skyepack Product, a substantially and functionally similar
product and documentation; (ii) procure for Customer the right to continue using the Skyepack Product;
or if (i) or (ii) are not possible after reasonable commercial efforts from Skyepack, then Skyepack may
terminate this Agreement and credit a pro-rated return of unused portion of the subscription. The
foregoing obligation of Skyepack does not apply to the extent the claim arises from (i) modifications to
the Skyepack Product by anyone other than Skyepack; (ii) combinations of the Skyepack Product with
products or process not provided or authorized by Skyepack; or (iii) any unauthorized use, access or
distribution of the Skyepack Product.
13.2 Indemnification by Customer. To the extent permitted under applicable law, Customer agrees to
indemnify and hold Skyepack harmless against and from any claim, demand, expenses, or losses,
including reasonable legal fees (including but not limited to attorney's fees, costs and expenses), made
by any third party against Skyepack due to or arising out of: (a) Customer ’s access, use of and/or
connection to the Skyepack Product(s); (b) Customers sharing of any content obtained through access
or use of the Skyepack Product(s) to any third party; (c) Customer’s violation of Section 2 (Skyepack
Products Subscription), or Section 3 (Proprietary Rights); (d) information Customer sent, submitted,
electronically received, accessed, printed, downloaded, or transmitted through the Skyepack
Product(s); or (e) Customers gross negligence or willful misconduct.
14. GENERAL
14.1 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF the STATE OF
INDIANA. THE VENUE WILL BE THE TIPPECANOE COUNTY COURTS, INDIANA AND WILL BE
THE EXCLUSIVE COURTS OF JURISDICTION AND VENUE FOR ANY LITIGATION, SPECIAL
PROCEEDING OR OTHER PROCEEDING AS BETWEEN THE PARTIES THAT MAY BE BROUGHT,
OR ARISE OUT OF, IN CONNECTION WITH, OR BY REASON OF THIS AGREEMENT. EACH
PARTY HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURTS. The United Nations
Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This
Agreement will not be subject to the Uniform Computer Information Transactions Act.
14.2 Compliance Verification. During the term of the Agreement and for a period of one year following
its termination, Skyepack has the right to verify Customers full compliance with the terms and
requirements of the Agreement. Customer must (a) provide any assistance reasonably requested by
Skyepack or its designee in conducting any such audit, (b) make requested personnel, records, and
information available to Skyepack or its designee, and (c) in all cases, provide such assistance,
personnel, records, systems access and information in an expeditious manner to facilitate the timely
completion of such compliance verification. If such verification process reveals any noncompliance,
Customer must promptly cure any such noncompliance; provided, however, that the obligations under
this section do not constitute a waiver of Skyepack’s termination rights and do not affect Skyepack’s
right to payment for access to Skyepack Product(s) and Services and interest fees related to usage in
excess of the quantities purchased.
14.3 General Provisions.
14.3.1 Amendment. This Agreement may only be amended or modified by a writing specifically
referencing the particular Section(s) of this Agreement to be modified and signed by authorized
representatives of the Parties.
14.3.2 Force Majeure. Skyepack will not be deemed in default of this Agreement for delays or failure in
performance resulting from acts beyond its reasonable control, including but not limited to, default by
subcontractors or suppliers, failure of Customer to provide promptly to Skyepack accurate information
and materials, as applicable, acts of God or of a public enemy, acts of terrorism, United States or
foreign governmental acts in either a sovereign or contractual capacity, labor, fire, power outages, road
icing or inclement conditions, flood, epidemic, restrictions, strikes, and/or freight embargoes.
14.3.3 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, that
provision must be severed or reformed to be enforceable, and the remaining provisions hereof and
thereof will remain in full force. No delay or omission by Skyepack in the exercise or enforcement of any
of its powers or rights hereunder will constitute a waiver of such power or right. A waiver by Skyepack of
any provision of this Agreement must be in writing and signed Skyepack and will not imply subsequent
waiver of that or any other provision.
14.3.4 Payments. Customer agrees that its payment and other obligations under this Agreement are
absolute and unconditional and not subject to any abatement, reduction, setoff, defense, counterclaim,
or recoupment due or alleged to be due as a result of any past or future claim that Customer may have
against Skyepack. Customer agrees that it will use its best efforts to cooperate with Skyepack, and will
execute and deliver any and all documents in addition to those expressly provided for herein that may be
necessary or appropriate to afford Skyepack the opportunity to adequately provide the Skyepack
Product(s) and Services. Payment terms are defined in the applicable Quote.
14.3.5 Time to Bring Action. To the extent allowed under applicable law, Customer may bring no
action arising out of this Agreement, regardless of form, more than one (1) year after the cause of
action has arisen.
14.3.6 Notices. All notices under this Agreement must be in writing and delivered by overnight
delivery service or certified mail, return receipt requested, with a copy by email. Notices delivered
personally are
deemed given upon documented receipt or refusal by recipient to accept receipt. In the case of
notices to Skyepack, such notices must be sent to:
Skyepack, Inc.
Attn: General Counsel
1281 Win Hentschel Blvd.
West Lafayette, IN. 4705
In the case of notices to Customer, such notices will be sent to Skyepack’s address of record for
Customer. Either party may change its notice address by notifying the other in like manner.
14.3.7 Assignment. Neither Skyepack or Customer may make any assignment of this Agreement
or any interest herein, by operation of law or otherwise, without the prior written consent of the other;
provided, however, that Skyepack may assign its rights and obligations under this Agreement
without the consent of the Customer in the event Skyepack hereafter effects a corporate
reorganization, consolidates with, or merges into, any person or transfers all or substantially all of its
properties or assets to any entity. This Agreement will inure to the benefit of and be binding upon the
Parties, their respective successors, executors, administrators, heirs and permitted assignees.
14.3.8 Facilities. Customer acknowledges that certain Services are intended to be
performed by Skyepack off-site (e.g., through remote communication capabilities). If any portion of the
work will be performed on Customer's premises, Customer agrees to provide appropriate access to
utilities, workspace, and other on
site accommodations reasonably necessary to enable Skyepack to perform such work.
14.3.9 Export. Without in any way limiting the restrictions on transfer set forth elsewhere in this
Agreement, Customer specifically agrees that Customer will not, directly or indirectly, export or transfer
any export- controlled commodity, technical data or software: (a) in violation of any laws, regulations,
rules, or other limitations imposed by any government authority; or (b) to any country for which an export
license or other governmental approval is required at the time of export, without first obtaining all
necessary licenses or other approvals.
14.3.10 U.S. Government Restricted Rights. Skyepack Product(s) is a "commercial item" as that term
is defined in 48 C.F.R. §2.101, consisting of "commercial computer software" and "commercial computer
software documentation" as such terms are defined in 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as
applicable, and all as amended from time to time. Consistent with 48 C.F.R. §12.212, 48 C.F.R.
§227.7202 and 48 C.F.R. §52.227-19, and other relevant sections of the Code of Federal Regulations,
as applicable, and all as amended from time to time, all U.S. Government end users acquire Skyepack
Product(s) only with those rights set forth herein.
14.3.11 Essential Basis of the Agreement. Customer acknowledges and understands that the
disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of
the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions, and
limitations of liability in negotiating the terms and conditions herein, and that absent such disclaimers,
exclusions, and limitations of liability, the terms and conditions of the Agreement would be substantially
different.
14.3.12 Entire Agreement. This Agreement and/or exhibits referenced herein, and any addendums and
amendments, constitute the complete and entire agreement between the Parties with respect to its
subject matter, and supersedes all prior discussions, understandings, arrangements, proposals and
negotiations with respect to the same. The terms and conditions of this Agreement will prevail
notwithstanding any variance with the terms and conditions of any purchase order or other
documentation submitted by Customer with respect to Skyepack Product(s) or any Services, and
Skyepack hereby refuses any such different or additional provisions in purchase orders or other
documents. By mutual agreement of the Parties, this Agreement is effective upon execution of a Quote
and supersedes all prior Agreements entered into by the Parties, the Parties’ agents, and/or the Parties’
previous affiliates. This Agreement may not be modified or amended without the written agreement of
both Parties that specifies the particular Section(s) being modified. The order of precedence is the
executed Quote, then this Agreement, then any referenced and applicable exhibits and privacy policy.
EXHIBIT A
SUPPORT POLICY
1. Definitions. Capitalized terms not defined herein have the meanings assigned to them in the
Agreement between Customer and Skyepack to which these Support and Services Policies (“Policies”)
are attached. In addition, for purposes of these Policies, the following definitions will apply:
1.1 “Errors” means a reproducible failure of Licensed Product to operate in accordance with its
standard Documentation, despite the proper installation and use of the Licensed Product in a proper
operating environment and on hardware and system software sufficient to meet Skyepack’s then-current
minimum requirements, which are subject to change as New Versions are released. User mistakes are
not Errors within the meaning of these Policies. Errors may be due to problems in Licensed Product,
Subscription Service, the Documentation, or both.
1.2 “Fix” means a patch, service pack or corrective update of Licensed Product that Skyepack
may prepare in its discretion on an interim basis, prior to issuance of a New Version, to correct
programming Errors that prevent or obstruct normal operation of Licensed Product or Subscription
Service in accordance with the applicable Documentation and developed by Skyepack.
1.3 “New Products” means new products, programs or modules offered by Skyepack and are
distinguished from New Versions and Fixes. New Versions and Fixes may include New Products that
provide features, functions or applications not included in the Licensed Product originally licensed by
Licensee and for which additional license fees apply as determined by Skyepack to access. A New
Product may be usable with or in addition to the Licensed Product originally licensed by Licensee. New
Products will be licensed to Licensee under the terms of Skyepack’s then-current license agreement only
after payment of applicable fees.
1.4 “New Version” mean an updated version of Licensed Product issued by Skyepack, which may
include Fixes, together with such other modifications, updates, enhancements and improvements to
Licensed Product that Skyepack may, in its discretion, develop and deem ready for distribution and that
Skyepack standardly provides to all customers with a current support subscription to such Licensed
Product or Subscription Service.
1.5 “Support Services” means those support services described in Section 3.1 below that will be
provided hereunder with respect to Subscription Services and Licensed Products during the relevant
Support Term.
1.6 “Support Term” means the length of time Support Services are to be provided hereunder and
for which the Customer or Licensee has paid any applicable Support Services fees, including any initial
Support Term and any renewal Support Terms.
1.7 “Telephone and E-mail Support” means telephone and e-mail support services, available
Monday through Friday, during Skyepack’s normal business hours, exclusive of Skyepack’s holidays,
regarding Subscription Services and Licensed Product.
2. Support Term; Fees. Support Services for Licensed Products provided under certain licensing
arrangements are available at an additional cost. If the Customer separately purchases a Support Term,
such purchases will be listed separately in the Quote. Support is provided as a part of your purchased
Subscription Services listed on the Quote and will not require purchase of a separate Support Term.
Support with your Subscription Services will continue with the duration of your purchase of a Subscription
Service. For Support Services purchased concurrently with a license, the initial Support Term will begin
upon shipment (FOB Skyepack’s place of shipment) of Licensed Product (or, in the case of a when made
available for download electronically, upon Skyepack’s provision of the necessary licensing information to
enable Licensee to download Licensed Product) or launch date when access to the Subscription Services
is provided; and terminate one (1) year thereafter, unless a different Support Term is specified in
Skyepack’s written acknowledgment of the client’s order, or unless terminated earlier in accordance with
the terms of these Policies or the Agreement. Either Party may terminate the provision of Support
Services as of the end of the then-current Support Term by providing written notice to the other party prior
to the end of the then-current Support Term that such party does not wish to renew the Support Term.
Licensee/Customer must provide written notice of non-renewal at least thirty (30) days prior to the
applicable Support Term. If notice of non-renewal is not given by either party, the Support Term will
automatically renew for the applicable renewal term stated on Skyepack’s renewal invoice at the then
current Support fees; otherwise, the Support Term will terminate at the end of Licensee’s current paid-up
Support Term. If Licensee’s/Customer’s Support Term is so terminated due to nonpayment, and then
Skyepack subsequently reinstates Licensee’s/Customers access to support, such reinstated access will
remain subject to the terms of these Policies and payment of applicable reinstatement fees. Skyepack
reserves the right to charge reinstatement fees in the event deactivated licenses are reactivated. For the
initial Support Term, Licensee/Customer must pay the charges specified in Skyepack’s initial invoice. For
renewal Support Terms, Licensee/Customer must pay Skyepack’s then-current annual Support Services
fees. Skyepack may supply new or modified Support and Services Policies or other terms and conditions
in a renewal term, in which event such new or modified Support and Services Policies or other terms and
conditions will govern Skyepack’s provision in such renewal term.
3. Support Services Scope. Skyepack, or an entity under contract with and authorized by Skyepack to
provide Support Services, will provide Support Services for Licensed Product and Subscription Services
during the Support Term. The scope of Support Services will be as follows:
3.1 Support. Support Services include: (a) Telephone and E-mail Support; (b) access to an online
support website, as maintained by Skyepack for customers maintaining a current support subscription; (c)
Fixes, as developed and made generally available by Skyepack in its discretion to address Errors that
Licensee is experiencing in using Licensed Product or Customer is experiencing in any Subscription
Service; and (d) New Versions, as developed and made generally available by Skyepack. Support
Services do not include New Products. Skyepack determines, in its sole discretion, what constitutes a
New Product (for which additional license fees apply), and what improvements and enhancements to
existing functionality of a Licensed Product or Subscription Service are to be included in a New Version
(and are therefore provided at no charge to customers with a current support subscription).
3.2 Custom Programs. For any custom programs developed for Licensee/Customer by Skyepack,
Support Services are available only on a time and materials basis at Skyepack’s current rates and
charges for these services; support for custom programs is not included in Support Services. In addition,
to the extent that Licensed Product or Subscription Service includes any functionality that allows the user
to customize screens or reports, Skyepack will support the application infrastructure utilized to create
such customizations but will not be responsible for supporting any such customizations.
EXHIBIT B
PROFESSIONAL SERVICES POLICY
This Exhibit B sets forth the additional policy and party expectations supporting Skyepack’s provision of
Professional Services to the Customer/Licensee in connection with the solution provided pursuant to this
Agreement.
1. Performance of Professional Services.
1.1. Statements of Work. For many professional services projects, Skyepack will capture the project
details in signed statement of work (each a Statement of Work” or “SOW”) setting forth the agreed upon
scope of the professional service, estimated or actual pricing and any special payment terms and, if
applicable, project schedule, and estimated delivery dates. Both Parties will execute each Statement of
Work and each is incorporated into this Agreement. For professional services projects not requiring the
completion of a SOW, alignment between the Parties on such services are captured in a request form,
change order or in the signed Quote. If there is a conflict between the terms set forth in this Agreement
and a Statement of Work, the terms set forth in the applicable Statement of Work will control.
1.2 Delivery and Cooperation. Customer/Licensee acknowledges that Customers cooperation is
essential to the timely performance of Skyepack’s services. Customer will, to the extent required in
connection with the performance of Skyepack’s services: (i) provide Skyepack with any necessary
Customer materials; (ii) provide Skyepack with any required access to Customer’s personnel, facilities or
data; (iii) cause the appropriate personnel to cooperate with Skyepack as required for Skyepack to
provide Skyepack’s services, including responding promptly to questions or issues; and (iv) make all
payments when due. Customer’s delay or failure to do so may delay the estimated delivery schedules set
forth in the Statement of Work or otherwise communicated to the Customer. If Customer/Licensee fails to
do any of the foregoing, both Parties will cooperate in good faith to develop a revised written delivery
schedule and written Statement of Work or change order signed by both Parties with new pricing. Unless
otherwise expressly agreed in a Statement of Work, all Professional Services will be deemed accepted
upon delivery.
2. Fees and Expenses. In addition to providing Support Services during the Support Term, Skyepack will
perform such other Professional Services (instructional design, instructional support,training, installation,
consulting, project management, etc.) as may be specified in a Skyepack Quote, written acknowledgment
of Customer/Licensee’s order, or as may be subsequently agreed upon by the Parties in a SOW; provided
that Skyepack may, at its option, arrange for any such services to be performed by another entity on
behalf of Skyepack. Customer/Licensee agrees to pay for such services at the rates and charges
specified in Skyepack’s written acknowledgment of Customer/Licensee’s order, or, for work subsequently
requested, at the rates agreed upon by Customer/Licensee and Skyepack for such subsequent work.
Skyepack reserves the right to require a purchase order or equivalent documentation from
Customer/Licensee prior to performing any such Services, or to require prepayment of certain Services.
Unless otherwise specified, all rates quoted are for services to be performed during Skyepack’s normal
business hours; additional charges may apply for evenings, weekends or holidays. Unless otherwise
agreed, the Customer/Licensee will also pay Skyepack for travel expenses (lodging, meals, transportation
and other related expenses) incurred in the performance of services. All such additional charges will be
due and payable concurrently with payment for services. Skyepack reserves the right to impose a
minimum labor charge for each on-site visit. The rates and charges specified in Skyepack’s
acknowledgment of Customer/Licensee’s order will apply to those services originally ordered; however,
Skyepack reserves the right to change service rates or other terms as a condition of entering into any
subsequent service engagement. If Customer/Licensee pays in advance for any services, all services
must be scheduled and delivered within twelve (12) months of such payment, unless otherwise agreed in
writing by Skyepack; any portion of any prepaid services amount that has not been used by
Customer/Licensee toward services rendered within such twelve (12) month period will be forfeited.
3. Training. Skyepack reserves the right to limit the number of persons permitted to attend any training
class in accordance with Skyepack’s training standards.
4. Changes to Project Scope. Customer/Licensee may request changes to the scope of a Statement of
Work. Any changes to the scope of a statement of work will result in a change order to such statement of
work or a new statement of work. Any scope changes will be made pursuant to the terms set forth in a
Statement of Work, to be mutually agreed upon by the Parties.
5. Services Cancellation. Customer/Licensee will pay a cancellation charge equal to fifty percent (50%)
of the services fee and any non-refundable expenses incurred by Skyepack if Customer/Licensee cancels
any scheduled professional services less than fourteen (14) days before the occurrence of any service
dates that Skyepack has scheduled at Customer/Licensee’s request.
6. Ownership of Materials. Skyepack is the owner of all copyrights, patent rights and other intellectual
property rights in any software code, documentation, reports or other deliverables (collectively,
“Deliverables”) created for or provided to Customer/Licensee pursuant to any Professional Services,
unless otherwise agreed to in writing. Provided that all Skyepack fees and expenses associated with the
development and provision of such Deliverables are paid timely, Customer/Licensee will have a paid-up,
royalty-free license to use such Deliverables for Customer/Licensee’s internal use only, solely for the
purpose for which such Deliverables were provided. Nothing in this Agreement will prevent Skyepack
from providing any Deliverables to Skyepack’s other customers or third parties. Notwithstanding the
foregoing, Skyepack acknowledges and agrees that any confidential information of a Customer/Licensee
incorporated into any Deliverable remains subject to the provisions of such Section.
7. Data Loads. For most Licensed Products and Subscription Services, successful implementation
requires proper data loads in specific formats and layouts. Skyepack will inform the Customer/Licensee of
the specific instructions such as data file layouts to support the data load for the implementation of a
Licensed Product or Subscription Service. If the Customer/Licensee is unable to provide the data as
required, Skyepack may offer services to complete the data load at an additional charge. If such services
are purchased, Customer/Licensee agrees to follow Skyepack’s