These Terms of Services, including the Order Form which by this reference is incorporated herein (this "Agreement"), is a binding agreement between Skylytics Data LLC ("Skylytics") and the person or entity identified on the Order Form as the licensee of the Solution ("Customer").
SKYLYTICS PROVIDES THE SOLUTION SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, SKYLYTICS WILL NOT AND DOES NOT LICENSE THE SOLUTION TO CUSTOMER AND CUSTOMER AND ITS AUTHORIZED USERS MUST NOT ACCESS THE SOLUTION OR ANY DOCUMENTATION RELATED THERETO.
Definitions. For purposes of this Agreement, the following terms have the following meanings:
"AI Customer Input" means information, data, materials, text, prompts, images, or other content that is (a) input, entered, posted, uploaded, submitted, transferred, transmitted, or otherwise provided or made available by or on behalf of Customer or any Authorized User for Processing by or through an AI Feature, or (b) collected, downloaded, or otherwise received by an AI Feature for or on behalf of Customer or any Authorized User, including in the case of (a) and (b) for purposes of fine-tuning, grounding, or otherwise modifying, refining, adapting, or customizing an AI Feature by, for, or on behalf of Customer.
"AI Customer Output" means information, data, materials, text, images, code, works, expressions, or other content generated or otherwise output from an AI Feature in response to AI Customer Input or from use of an AI Feature by or on behalf of Customer or its Authorized Users.
"AI Feature" means any feature, functionality, or component of the Solution that incorporates, uses, depends on, or employs any AI Technology.
“AI Technology” means any and all machine learning, deep learning, and other artificial intelligence technologies, including statistical learning algorithms, models (including large language models), neural networks, and other artificial intelligence tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment capable of generating various types of content (including text, images, video, audio, or computer code) based on user-supplied prompts.
"Authorized Users" means solely those individuals authorized to use the Solution pursuant to the license granted under this Agreement, as set forth on the Order Form.
"Customer Customizations" means any and all modifications, enhancements, refinements, adaptations, customizations, and derivative works of the AI Features, through fine-tuning, grounding, or similar methods, created or developed by Customer or its Authorized Users as permitted under this Agreement.
"Customer Data" means any and all information, data, materials, works, expressions, or other content that is (a) uploaded, input, or entered into the Solution by or on behalf of Customer or any Authorized User, including for Processing, (b) provided, transferred, or made available to Skylytics or representatives by or on behalf of Customer or any Authorized User, including for Processing by or through the Solution, or (c) collected, downloaded, or otherwise received by Skylytics or the Solution for or on behalf of Customer or any Authorized User.
"Documentation" means Skylytics's user manuals, handbooks, and guides relating to the Solution provided by Skylytics to Customer either electronically or in hard copy form.
"Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world.
"Skylytics Intellectual Property" means all Intellectual Property Rights owned by or licensed to Skylytics.
"Order Form" means the order form filled out and submitted by or on behalf of Customer, and accepted by Skylytics, for Customer’s purchase of the license for the Solution granted under this Agreement.
"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
"Process" means to take any action or perform any operation or set of operations on any data, information, material, work, expression, or other content, including to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other improvements or derivative works, (b) process, weigh, perform statistical analysis, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or (c) block, erase, or destroy. "Processing" and "Processed" have correlative meanings.
"Solution" means the Unify artificial intelligence solution developed by Skylytics and related services and offerings.
"Third Party" means any Person other than Customer or Skylytics.
"Training Data" means any and all information, data, materials, text, prompts, images, and other content that is used to train, validate, test, retrain, or improve any AI Technology, except for Customer Data.
"Usage Data" means any and all technical information and metrics about Customer's and its Authorized Users' access to or use of the Solution, such as end user profile-, visit-, session-, impression-, or click through-data.
License Grant and Scope. Subject to and conditioned upon Customer's compliance with all terms and conditions set forth in this Agreement, Skylytics hereby grants Customer a non-exclusive, non-sublicensable, non-transferable, license, during the Term and solely by and through its Authorized Users, to:
Right to access and use the Solution, including in operation with other software, hardware, systems, networks, and services, for Customer's business purposes, including for submitting AI Customer Input to and receiving AI Customer Output from the AI Features and otherwise Processing Customer Data; and
Royalty-free right and license to develop or create Customer Customizations of the AI Features.
Third-Party Materials. The Solution includes software, content, data, or other materials, including related documentation, that are owned by Persons other than Skylytics and that are provided to Customer on license terms that are in addition to and/or different from those contained in this Agreement ("Third-Party Licenses"). Customer is bound by and shall comply with all Third-Party Licenses. Any breach by Customer or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
Use Restrictions. Except as otherwise permitted under this Agreement, Customer shall not and shall not permit any Authorized Users to: (a) modify or create derivative works of the Solution or Documentation, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, or otherwise transfer the Solution or Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Solution, in whole or in part; or (d) remove any proprietary notices from the Solution or Documentation.
Responsibility for Use of Software. Customer is responsible and liable for all uses of the Solution and Documentation through access thereto provided by Customer, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Solution and Documentation by its Authorized Users or by any other Person to whom Customer or an Authorized User may provide access to or use of the Solution and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
Ownership of Customer Data. As between Customer and Skylytics, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject only to Section 6(c) with respect to AI Customer Output and the limited license granted in Section (6)b.
Limited License on Use of Customer Data. Subject to the terms and conditions of this Agreement, Customer hereby grants Provider a limited, royalty-free, fully-paid up, non-exclusive, non-transferable, and non-sublicensable license to Process the Customer Data as instructed by Customer or an Authorized User and solely as necessary to provide Customer with the benefits as provided in this Agreement for so long as Customer or any Authorized User uploads or stores such Customer Data for Processing by or on behalf of the Provider on the Solution. For avoidance of doubt, Skylytics shall not use, or permit any Person to use, Customer Data to train, retrain, tune, validate, modify, update, or otherwise improve the AI Features, any AI Technology, the Solution, or any other product or service, or as prompts for any AI Technology, except that Skylytics may use AI Customer Input and AI Customer Output to train, retrain, tune, validate, modify, update, or otherwise improve the AI Features solely for the use and benefit of Customer and its Authorized Users.
Ownership of Skylytics Materials. Skylytics is and will remain the sole and exclusive owner of all right, title, and interest in and to the Skylytics Materials, including all Intellectual Property Rights therein.
Ownership of Customer Customizations. Customer is and will be the sole and exclusive owner of all right, title, and interest in and to all Customer Customizations, including all Intellectual Property Rights therein.
Ownership of Feedback. If Customer sends or transmits any suggestions, ideas, modification requests, feedback or other recommendations made by Customer or other parties related to the Solution (collectively, “Feedback”), all such Feedback is, and will be exclusively owned by, Skylytics. Customer hereby assigns all right, title, and interest in, and Skylytics is free to use, without any attribution or compensation to Customer, any ideas, know-how, concepts, techniques, and all applicable Intellectual Property Rights relating to the Feedback, whether or not patentable, for any purpose whatsoever, including, but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Customer agrees and understands that Skylytics is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback.
Term. This Agreement becomes effective on the Effective Date on the Order Form and shall continue until the license end date of the last active Order Form, unless terminated earlier as provided hereunder (the “Term”). Order Forms will renew automatically for additional successive one (1) year terms, unless (i) signed Order Form specifies different renewal terms, (ii) the Agreement is terminated earlier in accordance with this Section 7, or (iii) notice of non-renewal is given by one party to the other party at least thirty (30) days prior to the expiration of the then-current Term.
Suspension. Skylytics reserves the right to suspend access to the Solution if Skylytics reasonably concludes that Customer or an Authorized User’s use (i) is, or has a high likelihood of, causing immediate or ongoing harm to Skylytics, its customers, or any third party; (ii) poses a threat of interference with, or obstruction to, the operation of the Solution that would likely have an adverse effect on the delivery of the Solution to other customers of Skylytics or on the systems or content of any other customer of Skylytics, or (iii) will likely cause, or has already caused, Skylytics to be in violation of applicable law (“Suspension Acts”). In the extraordinary event that Skylytics must suspend access to the Solution, Skylytics shall immediately, but no later than twenty-four (24) hours, notify Customer of the anticipated suspension and provide Customer with seventy-two (72) hours prior written notification of the suspension of Solution for the parties to diligently attempt to resolve the issue except in the case(s) where suspension of Solution is needed to prevent irreparable damage to other Skylytics customers. Skylytics shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Solution in accordance with this Section. Nothing in this Section will limit Skylytics’s rights under any other section of this Agreement.
Termination. Each party will have the right to terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. Customer's breach of its obligations under Sections 5 (Intellectual Property Rights) or if Customer files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, shall result in an immediate termination.
Effect of Termination. Upon any termination hereunder, Customer shall immediately cease use of the Solution. Skylytics will give Customer seven (7) days to download or otherwise save Customer Data, after which Customer will have no access to the Solution dashboard or interface, and Skylytics will have no access to Customer Data.
Limited Warranty. Skylytics warrants that the Solution will substantially conform to its Documentation during the Term, unless the Solution (i) is not used in accordance with the Documentation, (ii) is damaged by Customer, a third party, or any act of nature, or (iii) is modified by Customer or a third party. Skylytics does not warrant that the Solution will operate uninterrupted or that it will be free from minor defects or errors that do not materially affect such performance, or that it meets all of Customer's business requirements. If Customer reports and Skylytics validates the existence of a Solution nonconformance with the Documentation, Skylytics will repair or replace the nonconformance. This is Customer’s sole and exclusive remedy under this warranty.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED ABOVE IN SECTION 8(b), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SKYLYTICS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE ABOVE, SKYLYTICS MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SOLUTION MEETING CUSTOMER’S REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR OR VIRUS FREE; (II) WHETHER CUSTOMER’S USE OF THE SOLUTION OR CUSTOMER DATA WILL GENERATE ANY RESULTS OR CONSEQUENCES; OR (III) WHETHER CUSTOMER’S USE OF THE SOLUTION IS LAWFUL IN ANY PARTICULAR JURISDICTION.
Limitation of Liability. UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE NATURE OF ANY CLAIM SHALL SKYLYTICS, ITS LICENSORS, ITS CONTRACTORS OR CUSTOMERS BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT IN EXCESS OF THE PAID FEES FOR THE SOLUTION PAID OVER THE TWELVE MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE CLAIM OR BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ATTORNEYS’ FEES, COURT COSTS, INTEREST OR EXEMPLARY OR PUNITIVE DAMAGES.
Indemnity. Subject to this Section 9(a), Skylytics shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, agents, successors, and permitted assigns (“Customer Indemnified Party”) from and against all losses awarded against any Customer Indemnified Party arising out of any claim of a third party alleging that any of the Solution or use thereof infringes any US Intellectual Property Right of a third party.
Mitigation. If the Solution, or any part of the Solution, becomes, or in Skylytics’s opinion is likely to become, subject to a third-party Claim that qualifies for intellectual property indemnification coverage under this Section 9(a), Skylytics shall, at its sole option and expense, notify Customer in writing to cease using the Solution, in which case Customer shall immediately cease all use of the Solution on receipt of Skylytics’s notice. Skylytics may, at its option and sole cost and expense: (i) obtain the right for Customer to continue to use the Solution as contemplated by this Agreement; (ii) modify or replace the Solution, in whole or in party, to seek to make the Solution (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality; or (iii) by written notice to Customer, terminate this Agreement, subject to a refund of any fees received by Skylytics.
Notice. Customer shall notify Skylytics of third-party claims against Customer and reasonably cooperate in the investigation, settlement, and defense of such claims at its own expense.
Sole Remedy. THE PROVISIONS OF SECTION 9(a) STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF SKYLYTICS AND ITS LICENSORS TO CUSTOMER, AND IS CUSTOMER'S SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
Entire Agreement. This Agreement, together with the Order Confirmation, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. Each party acknowledges that it has not relied on any other express or implied representation or warranty, either written or oral, on behalf of the party, including any representation or warranty arising from statute or otherwise in law.
Survival. Any right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other party at its address set out below (or to any other address that the receiving party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Notice given by email (with confirmation of transmission) satisfies the requirements of this Section 10(c). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Notice to Skylytics:
300 Innovative Way, Suite 2355
Nashua, New Hampshire 03062
Attention: Michael Hickey
Email: support@skylytics.com
Notice to Customer: As set forth on the Order Form
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
Waiver. No waiver under this Agreement is effective unless it is in writing and signed by an authorized representative of the party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement: (i) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or (ii) any act, omission, or course of dealing between the parties.
Assignment. Customer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Skylytics. Any purported assignment or delegation in violation of this Section 10(g) is null and void. No assignment or delegation relieves the assigning or delegating party of any of its obligations under this Agreement. Skylytics may assign any of its rights or delegate any of its obligations to any Person acquiring all or substantially all of Skylytics’s assets without the consent of Customer.
Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties and their respective permitted successors and permitted assigns.
No Third-Party Beneficiaries. This Agreement benefits solely the parties to this Agreement and their respective permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Choice of Law. This Agreement and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of New Hampshire, without regard to the conflict of laws provisions thereof to the extent these principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New Hampshire.
Choice of Forum. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached hereto and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the federal and state courts of the State of New Hampshire and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of these courts and agrees to bring any action, litigation, or proceeding only in the federal or state courts of the State of New Hampshire. Each party agrees that a final judgment in any action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, or the transactions contemplated hereby.
300 Innovative Way, Suite 2355
Nashua, New Hampshire 03062
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