This Agreement is between Carr Engineering, Inc. (“CEI”) and “you”:
- the individual or legal entity purchasing or opening an account for SkyManager services under this Agreement (“Customer”); or as the case may be
- the individual accessing or using SkyManager services or installing the Software (“User”).
You agree to be bound by these Terms of Service by installing, copying, or otherwise using the Software, or accessing or using the Services. Please read these Terms of Service (the “Agreement”) carefully before installing, accessing, or otherwise using the Software or Services. Please maintain a copy for your records.
Note for Users who are not Customers: Section 7 (Credit Card Authorization) and Section 20 (Indemnity) of this Agreement do not apply to you. If your employer is a Customer and has an existing written agreement with CEI (“Written Agreement”), the Written Agreement will govern (and will be deemed to supersede the applicable terms of this Agreement) solely to the extent of any conflict between this Agreement and the Written Agreement.
1. Definitions. All capitalized terms defined in this Agreement have the meanings set forth herein.
“Affiliated Entities” means CEI and any licensors and suppliers providing any part of the Software and/or Services; and all subsidiaries, affiliates, officers, employees, consultants, and agents of any of the foregoing.
“Content” means all data, text, images, sounds, computer programs, and any other information, including without limitation everything that is uploaded by or for you in connection with your use of the Services including without limitation photographs, caricatures, illustrations, designs, icons, articles, audio clips, trademarks, logos, and video clips.
“Services” means SkyManager services acquired by a Customer as described in the applicable order for such services accepted by CEI.
“Site” means the website created for you by CEI for the purposes of accessing the Services.
“Software” means the software and all associated documentation and other materials provided to you by CEI for accessing the Services.
“Term” means the duration of this Agreement commencing with the earliest of: (i) the date that CEI accepts your order for Services, or (ii) that you first access or use the Services, or (iii) that you install the Software, and continuing until the end of the applicable Services period as designated by CEI, subject to earlier termination in accordance with this Agreement.
2. Software License. Subject to your compliance with the terms and conditions of this Agreement, CEI hereby grants you a non-exclusive license during the Term: (i) to install the Software (in object code and executable code format only), and (ii) to use such Software (as installed) solely for the purpose of accessing and using the Services.
3. Access to Services; Suspension and Termination. Subject to your compliance with the terms and conditions of this Agreement, CEI grants to you a non-exclusive, revocable right to access and use the Services during the Term. CEI reserves the right to suspend or discontinue without notice all or a part of the Services (or otherwise terminate this Agreement) at any time if CEI reasonably believes that you are in breach of this Agreement or may harm CEI or anyone else. Upon any cancellation or expiration of this Agreement, your access and other rights to the Services will be cancelled and cease. In the event that the CLIENT elects to terminate SkyManager service, the CLIENT will pay for the service and this Agreement will remain in effect through the end of the current monthly billing cycle. Any prepaid fees are non-refundable. You are prohibited from reselling or acting as a service bureau for the Services or any component thereof.
4. Ownership of Software, Services, and Marks. The Software and Services are licensed, not sold, solely for use under the terms of this Agreement. Except as specifically set forth herein, CEI and the other Affiliated Entities retain all right, title, and interest, including all intellectual property rights, relating to or embodied in the Software and Services, including without limitation all technology, software, and copies relating to the Software and Services. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the “Marks”) relating to the Software and Services are the trademarks of CEI or the other Affiliated Entities. You are prohibited from using any Marks without the prior written permission of CEI or the applicable Affiliated Entities. CEI reserves all rights not expressly granted in this Agreement.
5. Restrictions. You agree not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of the Software or Services. Unless expressly set forth herein, you may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the Software (in whole or in part) or any rights in the Services. You may not remove from the Software or Services, or alter or add, any Marks or copyright notices or other proprietary rights markings. IF YOU ARE NOT AN EMPLOYEE, INDEPENDENT CONTRACTOR, OR INVITEE OF A CUSTOMER, YOU ARE NOT AUTHORIZED TO INSTALL OR OTHERWISE USE THE SOFTWARE OR SERVICES.
7. Credit Card Authorization; Use Under Your Account. If you order Services and are paying by credit card, only valid credit cards acceptable to CEI may be used by you to make payment, and all refunds will be credited to the same card. Throughout the Term and until all amounts due have been paid in full, you hereby authorize CEI to charge any credit card provided by you to CEI all amounts due under this Agreement from time to time, including without limitation, all payments, taxes, and additional fees. If the card cannot be verified, is invalid, or is not otherwise acceptable, the Services may be deferred, suspended, or cancelled by CEI without notice, and CEI may generate invoices for payment. All invoices are payable net thirty (30) days. You agree to update your card information to keep it current at all times and that CEI may submit charges for processing even if the card appears to have expired. All prices are given and must be paid in U.S. dollars. All prices exclude applicable taxes, duties, and similar charges, which will be charged to and paid for by you. A finance charge of 1.5% per month or the maximum interest permitted by law, whichever is less, will be applied on any balances unpaid after thirty (30) days. In the event of termination of Services at the request of the CLIENT, the CLIENT will be billed for Services through the end of the current monthly billing cycle. You will cause those who access the Services through your account, including Users, to comply with the terms and conditions of this Agreement. You agree to pay all amounts due under this Agreement and to be responsible for all activity in your account for the Services, including payment of fees incurred at the direction of any User(s).
8. Electronic Communications. The Services are conducted electronically, and you agree that CEI may communicate electronically with you for matters relating to the Services and Software, including educational information and notifications regarding product updates, incentive and rewards programs, training opportunities and ways to more efficiently use the Service.
9. Updates; Applicable Terms and Authorization for Auto Updates. CEI may, in its sole discretion, provide, and this Agreement applies to, all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Services (collectively, “Updates”) that CEI may provide or make available generally to its customers after the date that Services commence, subject to any additional terms and conditions provided by CEI applicable to such Updates. You hereby authorize CEI to, and agree that CEI may, in accordance with CEI’s standard SkyManager operating procedures, automatically and in good faith transmit, access, install, and otherwise provide Updates to the Software upon your access to the Service or Software without further notice or need for consent. CEI has no obligation to, and nothing in this Agreement may be construed to require CEI to, create, provide, or install Updates.
10. Privacy Statement. The CEI SkyManager Statement can be accessed at the Site via (http://www.skymanager.com/privacy-policy/) (“Privacy Statement”). You hereby acknowledge that you have accessed and read the Privacy Statement and that it is a part of this Agreement. Personal information collected on the Site may be stored and processed in the United States or any other country in which CEI or its affiliates, subsidiaries, or agents maintain facilities, and by using the Site, you consent to any such transfer of information outside of your country.
11. NOTICE REGARDING RECORDING AND PRIVACY FEATURES. THE SOFTWARE AND/OR SERVICES MAY ALLOW YOU TO COLLECT AND UTILIZE IDENTIFYING INFORMATION ABOUT SERVICE PARTICIPANTS, such as a name that is displayed, transmitted, processed, or stored. THE LAWS OF SOME STATES OR COUNTRIES REQUIRE THE CONSENT OF INDIVIDUALS PRIOR TO RECORDING THEIR COMMUNICATIONS AND/OR RESTRICT COLLECTION, STORAGE, AND USE OF PERSONALLY IDENTIFYING INFORMATION. You agree to comply with all applicable laws and to obtain all necessary consents and make all necessary disclosures before using the Software and/or Services.
12.You Retain Ownership of Content. CEI does not claim ownership of any Content. You hereby grant to CEI a nonexclusive, worldwide, royalty-free, fully-paid, transferable license to host, cache, record, copy, and display Content solely for the purpose of providing the Services. Except as licensed in this Agreement, as between you and CEI, you retain all right, title, and interest in and to the Content.
14. Representations and Warranties About Content. You represent and warrant that you: (i) are the owner or authorized licensee of any and all Content; and (ii) will not publish, post, upload, record, or otherwise distribute or transmit Content that: (a) infringes or would infringe any copyright, patent, trademark, trade secret, or other proprietary right of any party, or any rights of publicity or privacy of any party; (b) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising); (c) is inappropriate, profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful; (d) is harmful to minors or otherwise pornographic; (e) contains any viruses, Trojan horses, worms, time bombs, bots, corrupted files, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (f) is materially false, misleading, or inaccurate. Any repeated infringement of copyrights or unauthorized use of copyrighted work or content that you do not own or are otherwise authorized to use shall be grounds for termination of service pursuant to this agreement.
15. Submissions. You may submit questions or comments to CEI from time to time at http://www.skymanager.com/contact-us/. CEI reserves the right to edit and post such questions or comments along with answers, if any. All such communications, comments, feedback, suggestions, ideas, and other submissions related to the Software and/or Services submitted to CEI (collectively, “Submissions”) will be and remain CEI’s property, and all worldwide right, title, and interest in all copyrights and other intellectual property in all Submissions are hereby assigned (and in the future deemed to be assigned) by you to CEI.
16. Confidentiality. You agree to hold in strictest confidence and not to use or disclose to any third party, any information designated by CEI as confidential or proprietary or which by the nature of such information would reasonably be considered confidential or proprietary, including without limitation passwords or access keys to the Services. You agree that all use of passwords and access keys to the Services will be attributed to the Customer, even if the Customer did not actually authorize the use, including uses that incur additional fees.
17. Links to Third Party Sites. Links within the Site may let you leave the Site and visit web sites that are not controlled by CEI. Neither CEI nor any of the other Affiliated Entities is responsible for any content of any such linked web site. Links are provided only as a convenience and do not imply any endorsement by CEI or any of the Affiliated Entities.
18. Compliance with Applicable Law. You agree (i) not to use the Software or Services for any illegal purposes and (ii) to comply with all applicable local, state, national, and international laws and regulations, including without limitation laws relating to recording conversations, privacy, and data protection and public displays or performances, and United States export laws and regulations regarding the transmission of technical data exported from the United States through the Software and/or the Services. You further agree that neither this Agreement nor any other right or remedy of CEI requires CEI or any of the Affiliated Entities to exercise any right or remedy in order to benefit or protect anyone, although CEI reserves the right to do so in its sole discretion.
19. Use Restrictions. You agree not to:
a. use the Services in connection with any use of distribution lists to any person who has not given specific permission to be included in such a process (commercial or otherwise);
b. harvest or otherwise collect information about others, including e-mail addresses, without their express consent;
c. use, download, or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of CEI’s users or other user or usage information or any portion thereof other than in the context of use of the Services as permitted under the Agreement;
d. interfere with any other party’s use and enjoyment of the Services or otherwise use the Services in any manner that could damage, disable, overburden, impair, or otherwise interfere with or disrupt the Site or Services or any networks connected to the Services;
e. attempt to gain unauthorized access to the Services, other accounts, computer systems, or networks connected to the Services, through password mining or any other means;
f. rent, lease, grant a security interest in, or otherwise transfer any rights to use the Services under this Agreement;
g. reverse-engineer, modify, decompile, disassemble, translate, or otherwise attempt to derive or view source code from any part of the Software or the Services;
h. defraud, defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
i. upload, or otherwise make available, files that contain images, photographs, software, or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same;
j. upload files that contain viruses, Trojan horses, worms, time bombs, bots, corrupted files, or any other similar information that may damage the operation of another’s computer or property or information; and
k. falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations, or labels of the origin or source of software or other material contained in a file that is uploaded.
20. Indemnity. If you are a Customer, you agree to defend, indemnify, and hold harmless each of the Affiliated Entities from and against any and all claims, liabilities, damages, and/or costs (including, but not limited to, fees, costs and other expenses of attorneys and expert witnesses) arising out of or related to the Software or Services (including without limitation, any person accessing the Services using your password or access key), any actual or alleged violation of this Agreement or applicable law, or any actual or alleged infringement or violation by you or any person accessing the Services using your password or access key of any intellectual property or privacy or other right of any person or entity.
21. DISCLAIMER OF WARRANTIES. ALL SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY. EACH OF THE AFFILIATED ENTITIES HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE, OF ACCURACY, OF SYSTEM INTEGRATION OR COMPATIBILITY, OF WORKMANLIKE EFFORT, OR OF LACK OF NEGLIGENCE. THE FOREGOING DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR-FREE, VIRUS-FREE, OR CORRESPOND TO ANY CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SOFTWARE OR SERVICES, ANY CONTENT, SYSTEMS, SERVERS, AND INFORMATION THAT IS IN OR UTILIZED BY THE SOFTWARE AND/OR SERVICES WILL BE FREE OF HARMFUL ASPECTS.
ALSO, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE WITH ANYONE’S ENJOYMENT OF THE SOFTWARE OR SERVICES OR AGAINST INFRINGEMENT.
22. NO LIABILITY FOR CONTENT. YOU AGREE THAT NONE OF THE AFFILIATED ENTITIES (as defined above) WILL BE LIABLE FOR: ANY CONTENT, INCLUDING BUT NOT LIMITED TO CONTENT THAT IS SENT, RECEIVED, HELD, RELEASED OR OTHERWISE CONNECTED IN ANY RESPECT TO THE SOFTWARE OR SERVICES; CONTENT THAT IS SENT BUT NOT RECEIVED; ANY ACCESS TO OR ALTERATION OF CONTENT; ANY CONTENT SENT USING AND/OR INCLUDED IN THE SERVICES, INCLUDING WITHOUT LIMITATION ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT; THE CONDUCT OF ANYONE; OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING PRIVACY, INTELLECTUAL PROPERTY, OR DATA PROTECTION RIGHTS.
23. EXCLUSION OF CERTAIN DAMAGES. YOU AGREE THAT THE FOLLOWING DAMAGES ARE EXCLUDED AND THAT YOU WILL NOT BE ENTITLED TO ANY OF THEM: ALL SPECIAL, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES; DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR FOR NEGLIGENCE OR NEGLIGENT MISREPRESENTATION; AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER OTHER THAN THE “DIRECT DAMAGES” DESCRIBED IN SECTION 24 BELOW. THE FOREGOING DAMAGES WILL BE EXCLUDED EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT OR PRODUCT LIABILITY, AND/OR BREACH OF CONTRACT OF CEI OR ANY OF THE OTHER AFFILIATED ENTITIES, AND EVEN IF CEI OR ANY OF THE AFFILIATED ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THESE EXCLUSIONS AND THE BELOW LIMITATION ON LIABILITY WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
24. LIMITATION ON LIABILITY. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY YOU IN REASONABLE RELIANCE, UP TO THE GREATER OF THE AMOUNT OF A REFUND OF THE PRICE THAT YOU ACTUALLY PAID FOR THE SERVICES DURING THE TERM OF THE SERVICES (E.G., QUARTERLY OR MONTHLY) IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) OR ONE DOLLAR (US$1.00).
25. Survivability. Sections 1, 3 (to the extent of any limitations on your rights), and 4-32 will survive any cancellation, termination, expiration, or suspension of this Agreement.
26. Governing Law; Exclusive Forum; Jurisdiction. This Agreement and all causes of action related to the Software or Services will be governed by and construed in accordance with the laws of the State of Ohio, USA, without giving effect to the conflict-of-laws principles thereof that would require application of the laws of a different state or jurisdiction. You consent to exclusive jurisdiction and venue in the State of Ohio or in the United States District Court for the Southern District of Ohio, unless no federal subject matter jurisdiction exists, in which case you consent to exclusive jurisdiction and venue in Franklin County, Ohio. You waive all defenses of lack of personal jurisdiction and forum non conveniens. You agree that any claim or cause of action arising out of or related to this Agreement must be commenced by you within one (1) year after the cause of action arose.
27. Miscellaneous. If any part of this Agreement is determined to be invalid or unenforceable, then such invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the allocation of risks, and the remainder of the Agreement will continue in effect. If any provision(s) is found to be contrary to law, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. CEI’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless agreed to by CEI in a non-electronic writing manually signed by a duly authorized officer of CEI.
28. Force Majeure. CEI and its Affiliated Entities will not be liable for non-performance or delay in performance caused by any event reasonably beyond the control of such party including, but not limited to wars, hostilities, revolutions, riots, civil commotion, national emergency, epidemics, fire, flood, earthquake, force of nature, explosion, embargo, or any act of God.
29. Third Party Beneficiaries; Assignment. The Affiliated Entities are third party beneficiaries to this Agreement. However, there are no other third party beneficiaries. No party may assign this Agreement, or any rights or obligations hereunder, whether by contract, operation of law, or otherwise without the express written consent of the other party to the Agreement, except that CEI may assign this Agreement to one (1) or more of the Affiliated Entities without your prior consent.
30. Export Restrictions. You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software and Services. Without limiting the foregoing, you acknowledge that the Software and Services are or may be an “encryption item” subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. You agree not to export or re-export the Software or Services in any form in violation of the export laws of the United States or any foreign jurisdiction. You will defend, indemnify, and hold the Affiliated Entities harmless from and against any violation of such laws or regulations.
Last Updated: October 5, 2008