Last Updated: August 1, 2022
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND SKYRAMP THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 19 "DISPUTE RESOLUTION" BELOW FOR DETAILS REGARDING ARBITRATION.
1. Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don't agree to be bound by these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms. In that case, "you" and "your" will refer to that entity.
3. Changes to these Terms or the Services
We may update the Terms from time to time in our sole discretion. If we do, we'll let you know by posting the updated Terms on the Site and/or may also send other communications. It's important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don't agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
4. Who May Use the Services?
You may use the Services only if you are at least 13 years of age (or such other minimum age at which you can provide consent to data processing under the laws of your territory), and not otherwise barred from using the Services under applicable law. For certain features of the Services you'll need an account. It's important that you provide us with accurate, complete and current account information and keep this information up to date. If you don't, we might have to suspend or terminate your account. To protect your account, keep the account details and password confidential, and notify us right away of any unauthorized use. You're responsible for all activities that occur under your account.
Conditioned upon your full compliance with these Terms, including timely payment of all fees when due, Skyramp grants you a limited, revocable, non-exclusive, and non-transferable license (1) to access and use the Platform, and (2) to download, install, and run up to five (5) copies of the Software, in each case solely for your internal software testing purposes as designed by Skyramp, and subject to any volume, seat, user, term, or other limits communicated by Skyramp to you in writing.
6. Platform License Restrictions
You will not at any time and will not permit any person or entity to, directly or indirectly: (i) use the Platform in any manner beyond the scope of rights expressly granted in these Terms; (ii) reverse engineer, disassemble, decompile, decode, or attempt to bypass any security measures to any software component of the Platform Services; (iv) frame, mirror, sell, resell, rent or lease use of the Platform to any other person or entity, or otherwise allow any person or entity to use the Platform for any purpose; (v) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other rights of any person or entity; (vi) interfere with, or disrupt the integrity or performance of, the Platform, or any data or content contained therein or transmitted thereby; (vii) access or search the Platform through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than Platform features provided by Skyramp for use expressly for such purposes; or (viii) use the Platform or any of Skyramp's confidential information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Platform.
7. Software License Restrictions
You have no right to transfer, sublicense or otherwise distribute the Software to any third party. Except as expressly authorized in these Terms, you will not (i) copy or modify the Software, in whole or in part, (ii) lease, lend, or rent the Software, (iii) use the Software to provide service bureau, time sharing, rental, application services provider, hosting, or other computer services to third parties, or (iv) otherwise make the functionality of the Software available to third parties. You acknowledge that the Software constitutes and contains trade secrets of Skyramp and its licensors, and, in order to protect such trade secrets and other interests that Skyramp and its licensors may have in the Software, you agrees not to disassemble, decompile, or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law.
From time to time you may provide Skyramp with suggestions, comments, feedback or the like with regard to the Services, or any portion thereof (collectively, "Feedback"). You hereby grant Skyramp a worldwide, perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Skyramp's business purposes, including, without limitation, the testing, development, maintenance, and improvement of the Services.
Skyramp may require payment of a fee for use of the Services (or certain portions thereof) and you agree to pay such fees. You have the option of purchasing a subscription ("Subscription") for such use.
- General. If you purchase a Subscription (a "Transaction"), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, "Payment Information"). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
- Subscriptions. If you purchase a Subscription, you will be charged a monthly Subscription fee or an annual Subscription fee, as elected, in each case plus any applicable taxes, and other charges ("Subscription Fee"). If you elect for a monthly Subscription Fee, you will be charged upfront, monthly, at the beginning of your Subscription, and each month thereafter, at the then-current monthly Subscription Fee. If you elect for an annual Subscription Fee, you will be charged upfront, annually, at the beginning of your Subscription, and each year thereafter, at the then-current annual Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE SKYRAMP TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each year on the anniversary of the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. For monthly Subscriptions, no less than twenty-five (25) days and no more than forty (40) days before each anniversary of your Subscription term, or otherwise in accordance with applicable law, Skyramp will send you a reminder with the then-current Subscription Fee. No less than thirty (30) days and no more than sixty (60) days before your Subscription term ends, or otherwise in accordance with applicable law, Skyramp will send you a reminder with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Skyramp. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.
- Cancelling Subscriptions. We do not offer refunds once a Transaction has occurred. ONCE MADE, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR SUBSCRIPTION FEE. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we'll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel or modify your Subscription at any time via the Site, but please note that such cancellation or modification will be effective at the end of the then-current Subscription period. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can send an email to [email protected] You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current Subscription period and will then terminate without further charges.
10. Data and Ownership
- Your Materials. Skyramp acknowledges that, subject to Skyramp IP, as between you and Skyramp, you will own and retain all rights, titles, and interests in and to the data, content, and materials (including your software, code, and technologies used for or in conjunction with the Services for testing purposes), which you upload or submit to, transmit through, store with the Services (collectively, "Your Materials"). Skyramp does not claim ownership rights in any of Your Materials.
- License to Your Materials; Derived Data. Notwithstanding anything to the contrary under these Terms, you hereby grant Skyramp a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, and modify Your Materials for the purpose of hosting, operating, improving, and providing the Services and Skyramp's other related products and.
- Skyramp's Intellectual Property. As between you and Skyramp, Skyramp owns and retains all owns all worldwide rights, titles, and interests (including all intellectual property rights) in and to (i) the Services, (ii) the underlying software provided in conjunction with the Services, (iii) all algorithms, interfaces, technology, databases, tools, know-how, processes, and methods used to provide or deliver the Services, (iv) all improvements, modifications, or enhancements to, or derivative works of, the Services, (v) all data, content, and materials provided or made available to you via the Services or otherwise by or on behalf of Skyramp, (vi) data that is derived by Skyramp while processing Your Materials, in aggregated and/or deidentified form, and (vii) data that is derived or aggregated from your use of the Services, including not limited to usage data or trends with respect to the Services (collectively including (i) through (vii), "Skyramp IP"). You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on any Skyramp IP (including any Services) as made available to you.
11. Monitoring and Investigation
Skyramp is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including Your Materials, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
12. Links to Third Party Websites or Resources
The Services may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.
We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at [email protected] Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, and 19.
14. Warranty Disclaimers
THE SERVICES ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE FURTHER DISCLAIM ANY LIABILITY OR RESPONSIBILITY FOR OR ARISING FROM ANY BUGS, VIRUSES, MALWARE, OR OTHER HARMFUL OR DESTRUCTIVE CODE, OR FOR ANY LOSS OR CORRUPTION OF DATA OR LOSS OF USE, IN EACH CASE IN CONNECTION WITH THE SERVICES. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Services.
You will indemnify and hold Skyramp and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) Your Materials (including allegations that Your Materials infringe or misappropriate the intellectual property rights of a third party), (c) your violation of these Terms, and (c) your negligence, willful misconduct, or violation of applicable law.
16. Limitation of Liability.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SKYRAMP NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SKYRAMP OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL SKYRAMP'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO SKYRAMP FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO SKYRAMP, AS APPLICABLE.
- THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SKYRAMP AND YOU.
17. Governing Law and Forum Choice
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 19 "Dispute Resolution," the exclusive jurisdiction for all Disputes (defined below) that you and Skyramp are not required to arbitrate will be the state and federal courts located in the San Francisco County, and you and Skyramp each waive any objection to jurisdiction and venue in such courts.
18. Dispute Resolution
- Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Skyramp agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Skyramp are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
- Exceptions. As limited exceptions to Section 19(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
- Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
- Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won't seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we'll pay all of our attorneys' fees and costs and won't seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses to the extent provided under applicable law.
- Injunctive and Declaratory Relief. Except as provided in Section 19(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
- Class Action Waiver. YOU AND SKYRAMP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties' Dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
- Severability. With the exception of any of the provisions in Section 19(f) of these Terms ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
19. General Terms
- Reservation of Rights. Skyramp and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
- Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Skyramp and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Skyramp and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Skyramp's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Skyramp may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
- Notices. Any notices or other communications provided by Skyramp under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
- Waiver of Rights. Skyramp's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Skyramp. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
20. Contact Information
If you have any questions about these Terms or the Services, please contact Skyramp at: [email protected].