These Skyjed Product Terms of Service form part of Your Agreement with Skyjed and describes Your rights and responsibilities as a customer of Skyjed Products. These terms are between You and Skyjed (Skyjed, We or Us). You means the entity You represent in accepting these Terms or, if that does not apply, You individually.
If You are accepting on behalf of Your employer or another entity, You represent and warrant that: (i) You have full legal authority to bind Your employer or such entity to these Terms; (ii) You have read and understand these Terms; and (iii) You agree to these Terms on behalf of the party that You represent. If You do not have the legal authority to bind Your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to You.
These Terms are effective as of the date You first click “I agree” (or similar button or checkbox) or use or access a Skyjed Product, whichever is earlier (Start Date). These Terms do not have to be signed in order to be binding. You indicate Your agreement to these Terms by clicking “I agree” (or similar button or checkbox) at the time You register for a Skyjed Product, create a Skyjed Product account, or place an Order. For free or trial use Skyjed Products, You also indicate Your agreement to these Terms by accessing or using the applicable Skyjed Product. Your continued use of any trial or free Skyjed Products after the initial free period specified in the online pricing plan (excluding the free “Starter” plan) will automatically convert to a Subscription Term and You will be billed in accordance with the applicable plan in Your Order.
1.1 Included Terms: This Agreement includes these terms and conditions and each Order placed by You and accepted by Us.
1.2 Commencement Date: This Agreement starts on the date stated as the Start Date above.
1.3 End Date: Subject to clause 1.4 this Agreement ends automatically upon expiry of the Term (unless renewed), or when terminated in accordance with these terms.
1.4 Renewal: Except as otherwise specified in Your Order, if You continue to use the Skyjed Product after the expiry period of any free trial, this Agreement will continue for the Subscription Term and, unless either party cancels Your subscription prior to expiration of the current Subscription Term (in accordance with clause 9), Your subscription will automatically renew for another Subscription Term of a period equal to Your initial Subscription Term. You will provide any notice of non-renewal through the means We designate, which may include account settings in the Skyjed Products or contacting Our support team. Cancelling Your subscription means that You will not be charged for the next billing cycle, but You will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Skyjed Product continuing to be offered and will be charged at the then-current rates
2.1 Your Input Data: You will provide Skyjed with access to Your Input Data for the Term on the terms of this Agreement.
2.2 Data Requirements: You agree to provide Your Input Data to Skyjed in accordance with the Data Requirements.
2.3 Warranty by You: You warrant that the use by Skyjed of Your Input Data in accordance this agreement will not infringe any Right or breach any Law. Skyjed expressly disclaims, takes no responsibility for, and has no liability for claims relating to Your Input Data.
2.4 Reliance by Skyjed: Skyjed relies on, and will not confirm, check or verify any of Your Input Data or any other information that You provide or direct Skyjed to input into the Skyjed Product. You must ensure that Your Input Data is accurate and complete.
2.5 Acknowledgments by You: You acknowledge and agree that:
(a) Skyjed will not convert Your Input Data to Skyjed Outputs if Your Input Data does not meet the Data Requirements;
(b) the delivery of Skyjed Outputs to You will be delayed by the same number of Business Days that equates to time taken by Skyjed to resolve any issue with Your Input Data; and
(c) Skyjed is designed and optimised for use in relation to transactions within the Coverage Territory stated above. Skyjed is unlikely to be of significant utility in relation to transactions conducted with merchants outside the Coverage Territory.
3.1 Delivery Date: Skyjed will use Your Input Data and the Skyjed Product to create and provide to You Deliverables. Skyjed may also provide You with other Skyjed Outputs.
3.2 Skyjed Output Format: Skyjed will provide Deliverables to You in accordance with the Skyjed Format.
3.3 Licence Grant: Pursuant to clause 6.1 below, Skyjed assigns to You IPRs in Deliverables. You are also granted a non-exclusive licence to use other Skyjed Outputs for the Permitted Use within the Territory during the Term. All other rights are expressly reserved by Skyjed and excluded from this right as licensed to You.
3.4 Nominated Group Companies: The rights granted to You under this Agreement may also be exercised by Your Nominated Group Companies, while they remain Nominated Group Companies under Your Control, or under common Control with You by another entity. You will be responsible for ensuring full compliance by each of Your Nominated Group Companies with requirements of this Agreement
3.5 Acknowledgments by You: You acknowledge and agree that You have read and understand the description of Skyjed at www.skyjed.com.
4.1 Permitted Use: Subject to the conditions and restrictions set out in this Agreement, You may use the Skyjed Product and Skyjed Outputs solely for the Permitted Use.
4.2 Restrictions on Use: You (and Your Authorised Users and Your employees) must not:
(a) use any Skyjed Product or Skyjed Output for any purpose other than the Permitted Use within the Territory during the Term;
(b) disclose, disseminate, communicate, transmit or publish any Skyjed Product or Skyjed Output (or any part of a Skyjed Product or Skyjed Output) to a third party;
(c) re-sell, sub-licence, transfer or assign any Skyjed Product or Skyjed Output (or any part of a Skyjed Product or Skyjed Output) to a third party;
(d) decompile, disassemble, reproduce or reverse engineer, or seek to decompile, disassemble, reproduce or reverse engineer, any Skyjed Product of Skyjed Output or create a substitute for or replacement of any Skyjed Product or Skyjed Output, or otherwise discern the source code or the object code used to create any Skyjed Product or Skyjed Output;
(e) copy, modify, alter, reproduce, translate, store, adapt or create derivative works of any Skyjed Product or Skyjed Output (or any part of a Skyjed Product or Skyjed Output) or embed any part of a Skyjed Product or Skyjed Output in Your systems, except as reasonably required by You for the Permitted Use within the Use Territory during the Term;
(f) permit unauthorised personnel to access or use any Skyjed Product or Skyjed Output;
(g) alter, obscure or remove any disclaimer, logo, branding or notice that is on or contained in any Skyjed Product or Skyjed Output;
5.1 Invoicing and Payment: Skyjed will invoice You the Fees in accordance with the invoicing terms as selected in the Order (being monthly or annually). You agree to pay Skyjed the Fees in accordance with the payment terms set out above.
5.2 Taxes: All fees listed in Your Order are exclusive of GST, VAT, turnover, sales and other taxes on supplies, other than taxes on Skyjed’s income. Skyjed will add such taxes to the Fees when You are invoiced for those Fees. You agree to pay fees free from bank charges, deductions and withholdings, or to gross-up payments, so that payments of Fees and taxes are received by Skyjed in Skyjed’s nominated bank account with an Australian trading bank in the currency of account in full and without deductions or withholdings.
6.1 IPRs: Skyjed Product is made available on a limited access basis and no ownership right is conveyed to You irrespective of the use of terms such as purchase or sale. IPRs in Deliverables. All Rights not expressly granted to You under this Agreement are reserved to Skyjed.
6.2 Your Input Data: You own all IPRs in Your Input Data. You grant to Skyjed an irrevocable right and license to use Your Input Data in connection with the Skyjed Product for the purposes of providing the Deliverables and other Skyjed Outputs to You under this Agreement and to enable enhancement of the Skyjed Product as contemplated in clause 8.7 of this Agreement.
6.3 Developed IP: You agree that all IPR’s created or developed by Skyjed, including in connection with the use of Your Input Data, for the purposes of enhancing, modifying, updating or adapting the Skyjed Product during the Term, are owned by Skyjed.
6.4 Infringement of IPRs: If Skyjed, acting reasonably, believes that You have used (or permitted another person to use) or are likely to use (or permit another person to use) Skyjed Outputs or the Skyjed Product in a way which infringes or is likely to infringe Skyjed’s IPRs, or breaches confidentiality, Skyjed may in its sole discretion:
(a) direct You to remove all Skyjed Outputs and any other Skyjed Confidential Information from any database, IT system or device which is owned or controlled by You; and
(b) direct You to return to Skyjed all Skyjed Outputs that have been provided by Skyjed to You; and
(c) suspend Your access to Skyjed Outputs and to the Skyjed Product; and
(d) terminate Your Subscription or this Agreement.
You must comply with any direction within 5 Business Days and certify in writing that You have fully complied with Skyjed’s direction.
7.1 Compliance with Laws: Each party must, and must ensure that members of its Group and its Employees will comply with all Laws, including Privacy Laws, from time to time that relate to collection, handling, control, processing and disclosure of Personal Information (including obtaining any necessary Consents), any reasonable directions of a party as to Laws and steps reasonably required to effect compliance. The parties agree to comply with the provisions of GDPR Data Processing Addendum (available at www.skyjed.com) and it is incorporated into and forms part of our Agreement, to the extent that GDPR is applicable to the processing of Your Input Data under this Agreement.
7.2 Notification: Each party must promptly notify the other party of any potential or actual material complaint relating to the first party's compliance or alleged non-compliance with Privacy Laws, and any suspected data breach that may affect the other party. Each party agrees to cooperate and comply with all reasonable directions of the other party in relation to such event and to promptly take all reasonable steps to rectify or remedy such breach where possible.
7.3 No provision of Personal Information: You must not provide Skyjed with Personal Information, or access to Personal Information, except with Skyjed’s prior written consent. Any Personal Information You do provide to Skyjed must be in accordance with all access conditions, protocols and safeguards agreed between the parties in writing.
7.4 Protection of Personal Information: To the extent that You receive Personal Information from Skyjed, or Skyjed Outputs (or derivatives from them) become Personal Information as held by You, You agree that You will comply with all Laws, including Privacy Laws, relating to the collection, handling, control, processing and disclosure of this Personal Information, including obtaining any necessary Consents, and that You will protect this Personal Information against misuse, loss, or unauthorised access, modification or disclosure, including not disclosing any Personal Information to a third party without Skyjed’s prior written consent or as required by Law or pursuant to a lawful request of a data subject.
8.1 Reciprocal Confidentiality Obligations: Each Recipient of Confidential Information agrees to keep Discloser’s Confidential Information confidential, secret, and protected and to only use Discloser’s Confidential Information to the extent allowed by this Agreement.
8.2 Skyjed’s Confidential Information: You agree that Skyjed's Confidential Information, is provided to You for the Permitted Use by Authorised Users, within the Territory during the Term only, and its disclosure to You does not change its confidential nature.
8.3 General Disclosure Limitations: Except to the extent that this Agreement expressly allows, a Recipient must not disclose Confidential Information of the Discloser to any person, except:
(a) with the prior written consent of the Discloser; or
(b) if Recipient is required to disclose by Law, by a regulator, government, administrative authority, stock exchange or in connection with legal proceedings relating to this Agreement, provided that (where practical) the Recipient notifies the Discloser prior to such disclosure and it is limited to what is necessary.
8.4 Compliance with directions: Each Recipient must:
(a) comply with the reasonable directions of Discloser in relation to Discloser’s Confidential Information; and
(b) immediately notify the Discloser if the Recipient suspects or becomes aware of any unauthorised copying, use or disclosure of Discloser’s Confidential Information.
8.5 Destruction of Confidential Information: Upon termination or expiry of this Agreement, or at Discloser’s request, Recipient must promptly either deliver to Discloser, or destroy and certify the destruction of, materials that contain the Discloser’s IPRs and Confidential Information. Unless otherwise agreed, at least 90 days after expiration or termination of this Agreement We will delete Your account and any of Your Input Data. This clause does not require the Recipient to deliver up or destroy materials (and, in Your case, any Skyjed Outputs) that the Recipient is required to keep for the purposes of archive (including electronic backup data storage), professional indemnity insurance, legal advice or legal compliance, provided that Recipient gives written assurances to the Discloser regarding protection against unauthorised use or disclosure (including as to systems security).
8.6 No publicity without Skyjed consent: You must not (and must ensure Your Employees do not) publish or release any information in connection with this Agreement, the Skyjed Product or any Skyjed Outputs, or refer to Skyjed in any offering, promotion, advertising, web site, presentation, media release or statement, publication or communication of similar nature, without Skyjed’s prior written consent.
8.7 Continuing Use of derivations from Your Input Data: Notwithstanding termination of this Agreement or expiry of the Term, You permit and licence Skyjed (on a non-revocable, continuing basis notwithstanding expiry or termination of the Term) to retain, use, and disclose data derived from provision of the Skyjed Product to You to improve features and functionality of the Skyjed Product and to build the corpus of data that Skyjed uses to provide Skyjed’s services, provided that this derived data is reliably deidentified, at no time shall Skyjed disclose to any other customer of Skyjed that any derivation of data was from Your Input Data, and at no time shall Skyjed otherwise facilitate or allow any third party to infer that any derivation of data was from Your Input Data.
9.1 Suspension Rights: Skyjed may suspend access to the Skyjed Product, Deliverables or other Skyjed Outputs during the Term if Skyjed, acting reasonably, considers that You have failed to comply with this Agreement, including failing to pay any amounts owing to Skyjed when due. No refund will be provided to You for any period of suspension. Skyjed may reinstate access once Skyjed is satisfied that You have rectified the failure that led to the suspension and that You are not otherwise in breach of this Agreement.
9.2 Termination for Cause: Either party may terminate this Agreement immediately on written notice to the other party if:
(b) the other party is in breach a material term of this Agreement and fails to remedy that breach within 14 days after written notice of the default; or
(c) to the extent permitted by law, the other party suffers an Insolvency Event.
9.3 Termination without Cause: You can cancel Your subscription and terminate this Agreement with one month’s prior written notice. We may terminate Your subscription (and this Agreement) with the same notice. If you commit a breach of this Agreement that in Our view, acting reasonably, is not capable of being remedied, We may terminate this Agreement immediately. If you have not used Your “Starter” subscription for at least 12 months, we may suspend or terminate your account, at our option. Upon termination of this Agreement for any reason, Your right to access and use the Skyjed Product and the Skyjed Outputs will immediately cease.
9.4 Survival of clauses: All clauses which either expressly or by implication are intended to survive this Agreement ending will continue to apply after this Agreement ends, including without limitation clauses 6, 7, 8 and 10.
10.1 Warranty: The Skyjed Product is designed to provide product oversight, insights, reporting and knowledge management (Stated Purpose) and to be appropriately reliable and accurate for use by You for the Stated Purpose within the Territory. The Skyed Product is not intended or designed to be appropriately reliable and accurate for use other than for the Stated Purpose or elsewhere outside the Territory. Skyjed states and warrants that Skyjed is generally reliable and reasonably fit for the Stated Purpose within the Territory but also expressly states that Skyjed will be incomplete and contain some errors.
10.2 Exclusion of Warranties: Subject to clause 10.1, to the maximum extent permitted by law, and unless expressly provided in this Agreement, all implied warranties, representations, guarantees, statements, terms, conditions and any other additional obligations are excluded from this Agreement.
10.3 Acknowledgement by You: Subject to and without limiting clause 10.1, You acknowledge that Skyjed makes no representations (express or implied) nor gives any guarantee or warranty as to the quality, fitness for purpose, usefulness, completeness, reliability, timeliness or accuracy of any Skyjed Output or the Skyjed Product;
10.4 Maximum liability: If, despite this clause 10, Skyjed incurs any liability to You, then Skyjed’s maximum liability to You for any claim (including related or similar claims, and together and in aggregate) arising in connection with this Agreement, is limited, to the maximum extent permitted by law, to the ongoing Fees for provision of the Service paid by You under this Agreement in the 12 months prior to the claim.
10.5 Excluded Loss: To the extent permitted by law, Skyjed is not liable to You for any Excluded Loss suffered or incurred by You in connection with this Agreement.
10.6 No liability for patents: Skyjed expressly disclaims, takes no responsibility for, and has no liability for, infringement of any third-party patent, other than a patent issued in Australia.
10.7 No liability to third parties: Subject to and without limiting clause 10.1, You agree that Skyjed is not liable to You or any third party in relation to any use by You or any third party of, or reliance by You or any third party on, the Skyjed Outputs or any other Skyjed Confidential Information.
10.8 Indemnity by You: You indemnify Skyjed, each member of its Group, and each of its employees, officers, contractors, representatives or agents (each and all indemnified persons):
(a) from and against any claim by any third party in relation to any use or reliance by that third party on the Skyjed Product or Skyjed Outputs; and
(b) against Loss (including penalties or fines imposed by any regulator) that the indemnified persons suffer or incur to the extent that such Loss arises out of:
(i) Your Input Data infringing or breaching any Right or Law;
(ii) any unauthorised access to the Skyjed Product or Skyjed Outputs supplied to You; and
(iii) any breach by You (or any person for whom You are responsible) of clause 6 (IPRs), clause 7 (Privacy) or clause 8 (Confidentiality)
11.1 Events outside Skyjed’s control: Skyjed is not liable to You for any delay or non-performance of Skyjed’s obligations under this Agreement to the extent to which that delay, or non-performance is due to events which are beyond Skyjed’s reasonable control which could not reasonably be planned for or avoided (including any delay in Skyjed obtaining Your Input Data).
11.2 Skyjed audit rights: On the provision of not less than 14 days’ written notice and subject to reasonable confidentiality undertakings, You will give Skyjed and its authorised representatives access to any of Your facilities, premises, systems, records, books and personnel to enable Skyjed to assess whether or not You have complied with this Agreement.
11.3 No Assignment: Neither party may assign, sub-license or otherwise transfer the benefit of this Agreement without the other party’s prior written consent.
11.4 Applicable law: This Agreement is governed by the laws of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the New South Wales courts.
11.5 Entire Agreement: This Agreement (including the Annexures) contains the entire agreement between You and Skyjed with respect to its subject matter and supersedes all other prior proposals, product summaries, agreements, understandings and representations between You and Skyjed. This Agreement may only be varied by written agreement.
12.1 References to 'Us', 'We' 'our' or 'Skyjed' means Skyjed Pty Limited ABN 17 618 832 590.
12.2 References to 'You', 'Your' or 'Client' means the entity listed as the Client above.
12.3 In this Agreement, the following definitions apply unless the context requires otherwise:
Business Day means any day that is not a Saturday or Sunday or public holiday in New South Wales.
Client Representative means the client representative nominated by You above, or any replacement client representative communicated in writing to Skyjed.
Confidential Information is information that a party (including members of a party’s respective Group and their employees, officers, contractors, representatives or agents), being a Discloser, discloses to the other party (or members of the other party’s respective Group and their employees, officers, contractors, representatives or agents), being a Recipient, in connection with performance of this Agreement. Confidential Information does not include information which is known to the public or otherwise becomes part of the public domain (other than due to breach of an obligation of confidence owed under this Agreement).
Control (including associated meanings “Controlled by”, “Controlling” and “under common Control with”) means possession, directly and indirectly, of the power to direct or cause the direction of management f management or policies of an entity, whether through ownership of more than fifty per cent of an entity’s outstanding equity securities (whether consisting of capital stock, membership units, securities or partnership or other ownership interests), by contract or otherwise;
Data Requirements means the data requirements that are product information in the form of operational, financial and non-financial product data and metrics, for the ingestion of Your Input Data into the Skyjed Product and the provision of Skyjed Outputs to You.
Deliverables means access to the Skyjed Product and the provision of Skyjed Outputs.
Employees means officers, employees, contractors and authorised agents of a party.
Excluded Loss means loss resulting from loss or corruption of data, loss of revenue, loss of profits, loss of business, loss of use, opportunity, goodwill, bargain, failure to make savings, and business interruption, whether arising directly or not.
Fees means the fees set out in the Order.
GDPR means the General Data Protection Regulation of the European Union (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016).
Group means a group of entities, whatever their nature or denomination and irrespective of their jurisdiction of incorporation, organized under a scheme of direct or indirect equity participation, or otherwise, in which one entity Controls the other entities, provided that, as in the definition of entity, trusts or similar agreements shall be deemed included, regardless of the laws under which such trusts or similar arrangements are created or executed and regardless of their corporate name. Each such entity is a member of the entity’s Group.
Insolvency Event means a party is unable to pay its debts as they fall due, takes any corporate action or any steps are taken or legal proceedings are started for the winding up, dissolution, liquidation or reorganisation (other than a solvent reconstruction) or for the appointment of a controller, receiver, administrator, official manager, trustee, or any other similar officer, over it or of any of its revenues or assets, or it seeks or is granted protection from its creditors under any applicable legislation.
IPRs means all intellectual property rights, whether registered or unregistered, including copyright, rights in relation to inventions (including patents), know how, trademarks, business names, domain names, designs, circuit layouts, trade secrets, Skyjed Confidential Information and other confidential information and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Laws means any applicable federal, state and local laws (including legislation), mandatory codes, directives or practices and mandatory industry codes (whatever called) of any relevant country and jurisdiction.
Loss means any loss, damages, liabilities, claims, costs or expenses reasonably and properly incurred, including penalties or fines imposed by any regulatory authority and legal costs (on a solicitor/client basis), excluding loss not arising naturally and not arising according to the usual course of things.
Nominated Group Companies means those entities in Your Group, if any.
Permitted Use means use of the Skyjed Product and Skyjed Outputs for:
(a) internal business activities of You and Your Nominated Group Companies to conduct Your business;
(b) any other purpose approved in writing by Skyjed at Skyjed’s discretion.
Personal Information means information or an opinion about or relating to an individual or other data subject that is identified or reasonably identified and regulated as personal information, personal data or personally identifying information under any relevant Privacy Law of any relevant jurisdiction at any relevant time.
Privacy Laws means applicable privacy or data protection laws, including without limitation the Privacy Act 1988 (Cth of Australia), the GDPR, the Californian Consumer Privacy Act, and regulations and mandatory guidelines as issued by a regulator from time to time that relate to the collection, handling (including use, disclosure, storage and retention), security and access and correction rights, notification of suspected or actual data breaches, and control and processing of or relation to Personal Information.
Skyjed Confidential Information means Confidential Information of Skyjed and without limitation includes :
(a) the terms of this Agreement;
(b) all Skyjed Outputs and any other data, information or outputs (including any reports) made available to You via the Skyjed Product, but not Your Input Data; and
(c) all other information or materials provided, or made available, to You by Skyjed under or in connection with this Agreement,
but does not include information which is or becomes available in the public domain, other than as a result of a breach of this Agreement.
Right means any right of privacy or confidentiality or in contract or tort that is legally enforceable by any person.
Skyjed Data Corpus means the data corpus of brands, geographic locations, industry categories and common words and texts, plus correlations between raw transaction data and enriched transaction attributes, that is maintained by Skyjed for use in connection with the Skyjed Product which will be updated by the correlations between the transaction data and enriched transaction data (including the Your Input Data and Skyjed Outputs) used, processed and created by the Skyjed Product under this Agreement.
Skyjed Output means an output from the Skyjed Product that is provided to You by Skyjed on the terms of this Agreement. Deliverables are Skyjed Outputs, but there will also be Skyjed Outputs that are not Deliverables.
Skyjed Product means the Skyjed software product more fully described at www.skyjed.com including all enhancements and modifications to the software and automated processes developed during the Term.
Term means any initial free trial period, a subsequent initial period of 12 months (being the period of each Subscription Term) and any renewal periods in accordance with clause 1.4, unless otherwise described in the Order or agreed by Us.
Territory means the country or other jurisdiction or geographical area where You are physically located.
Your Input Data means data, information (including Your Confidential Information), content, instructions or other information provided by You to Skyjed which is:
(a) specified above for ingestion into the Skyjed Product (which may include third party data); or
(b) reasonably requested by Skyjed to assist with the development and delivery of the Skyjed Outputs.
12.4 Interpretation: Unless the context otherwise requires:
(a) monetary amounts are expressed in Australian dollars;
(b) headings are for convenience only and do not affect interpretation;
(c) words importing the singular include the plural and vice versa;
(d) other grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
(e) an expression importing a natural person includes a partnership, joint venture, association, corporation, trading trust or other body corporate or government agency;
(f) a reference to anything includes a part of that thing;
(g) mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included;
(h) a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing them and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(i) a reference to a document includes an amendment or supplement to, or replacement or novation of, that document;
(j) references to a party to this Agreement includes references to the successors or assigns (immediate or otherwise) of that party;
(k) where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day.