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These Terms of Service (“Terms”) are entered into betweenNetSky AI, Inc. (“NetSky,” “Company,” “us,”“we,” or “our”) and Customer, and governs Customer’s access to and use of NetSky’s business insights tool, and any products, websites, and platforms associated with the tool, leveraging artificial intelligence made available to business and business representatives (collectively, the “Services”).
By accepting these Terms, including by accessing, browsing, or otherwise using the Services, including any products, websites, and platforms associated with the Services, you agree to the Terms, and any other applicable policies applicable to your use of the Services, including the Privacy Policy, together with any exhibits, addenda and any associated or accompanying ordering document or online order that is entered into between Customer and NetSky (“Order”)(collectively, “Agreement”) on behalf of the entity for which you are acting (such as an employer) (“Customer”).You represent and warrant that you have full legal authority to bindCustomer to this Agreement and confirm Customer’s agreement to be party to this binding contract. If you do not have the authority to bind Customer or do not agree with the Terms, you (and Customer) are not authorized to access or use the Services. If you are accessing the Services on behalf of a Customer, your access is also subject to any additional agreements between Netsky and that Customer, if applicable.
By accepting these Terms, including by accessing, browsing, or otherwise using the Services, including any products, websites, and platforms associated with the Services, you agree to the Terms, and any other applicable policies applicable to your use of the Services, including the Privacy Policy, together with any exhibits, addenda and any associated or accompanying ordering document or online order that is entered into between Customer and NetSky (“Order”)(collectively, “Agreement”) on behalf of the entity for which you are acting (such as an employer) (“Customer”).You represent and warrant that you have full legal authority to bindCustomer to this Agreement and confirm Customer’s agreement to be party to this binding contract. If you do not have the authority to bind Customer or do not agree with the Terms, you (and Customer) are not authorized to access or use the Services. If you are accessing the Services on behalf of a Customer, your access is also subject to any additional agreements between Netsky and that Customer, if applicable.
1. NetSky Obligations.
1.1. Access to NetSky Services. Subject to these Terms,NetSky hereby grants Customer a limited, non-exclusive, non-transferable (subject to Section 9.5), non-sub licensable right, during the subscription term length set forth in the applicable Order or, with respect to early access features, the evaluation period set forth by NetSky (“Order Term”), for employees, contractors, and other persons associated with the Customer or itsAffiliates (defined hereinafter) who access or use the Services through the Customer’s account (“Authorized Users”), the allowable number of which is limited by an applicable Order form, to access and use the Services in connection with Customer’s own business purposes.
An Affiliate means, with respect to any entity, any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or under common control with such entity. As used in this definition, “control” (including, with correlative meanings, “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract or otherwise.
1.2. Security.NetSky will maintain reasonable technical and organizational measures designed to (a) protect the Services and any applications and materials that are developed by Customer or its Authorized Users on the Services or uploaded to the Services by Customer or itsAuthorized Users (“Customer Content”) against accidental or unlawful loss, access, or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access, and (c) minimize security risks, including through regular risk assessments and testing.
An Affiliate means, with respect to any entity, any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or under common control with such entity. As used in this definition, “control” (including, with correlative meanings, “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract or otherwise.
1.2. Security.NetSky will maintain reasonable technical and organizational measures designed to (a) protect the Services and any applications and materials that are developed by Customer or its Authorized Users on the Services or uploaded to the Services by Customer or itsAuthorized Users (“Customer Content”) against accidental or unlawful loss, access, or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access, and (c) minimize security risks, including through regular risk assessments and testing.
2. Service Terms.
2.1. Use Restrictions. Except as otherwise expressly authorized in these Terms, Customer will not, and will not encourage or assist third parties to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services (except to the extent such a restriction is impermissible under applicable law); (ii) provide, sell, resell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Services; (iii) copy, modify, create derivative works of, or remove proprietary notices from the Services; or (iv) use the Services for personal or other non-commercial purposes beyond the scope of the license granted.
2.2. ConductRestrictions. While using the Services, you may not:
(a)Damage, disable, override, interfere with, or circumvent any aspect of the Services (including any safety, integrity, or privacy filters, instructions, controls, safeguards, or other mechanisms offered by, as part of, or with the Services);
(b)Interfere with the Services operation (e.g., by exceeding or trying to exceed load specifications or by using the Services to generate synthetic data) or anyone else’s use of the Services;
(c) Test, penetrate, or scan the Services for security vulnerabilities or limitations;
(d)Impersonate anyone or misrepresent your connection with any person or entity;
(e)Use the Services to compete with NetSky, or copy any ideas, features, functions, or graphics of the Services;
(f)Distribute any unwanted communication (e.g., using the Services to send spam);
(g)Access or use the Services in a manner intended to avoid incurring fees owed (e.g. by repeatedly transferring a seat to and from the same user(s) to avoid paying for the appropriate number of seats needed, or by sharing account credentials – each user account is personal to the user to which it is issued);
(h)Scrape, data mine, or access the Services, or content (including third party content made available through NetSky) programmatically;
(i)Use a third party’s content without their permission (e.g., use stolen content);
(j)Deceive or mislead any person, including by indication, that any AI output was solely human generated or modify, tamper with, remove, obscure, or otherwise alter any metadata, digital signatures, or watermarks that identify AI output as generated using a generative artificial intelligence model;
(k)Use the Services in a way that causes, or is intended to cause, bias, harm, or discrimination against an individual or to make solely automated decisions about individuals which could have a legal or similarly significant effect; or(l)act in bad faith.
2.3. AccountManagement and Customer Data.
(a)As part of the registration process, Customer will appoint one or more administrative users for Customer’s NetSky account. Each administrative user has the authority to manage Customer’s NetSky account, add or remove Authorized Users, approve purchases, and otherwise act on behalf of Customer for purposes relating to theServices and these Terms.
(b)Customer may enable Authorized Users to access and use the Services in accordance with any user manuals, handbooks, and guides relating to the Services (“Documentation”) provided by Netsky to the Customer and any limitations in contained in these Terms or otherwise provided to Customer by NetSky. Each Authorized User’s account is personal to the Authorized User to which it is issued.Account credentials may not be shared or used by anyone other than the individual to whom they were provisioned. Customer is responsible for its Authorized Users’ compliance with these Terms, and all activities of its Authorized Users. We reserve the right to withdraw or amend the Services, and Documentation and related products, websites, and platforms associated with the Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Service, or the entire Service, to Customer and any users, including registered users.
(c)Customer is responsible for providing accurate and complete account information and maintaining the accuracy and completeness of such information. Customer is responsible for maintaining control over itsAuthorized Users’ accounts, including the confidentiality of usernames and passwords. NetSky supports login using two-factor authentication (“2FA”),which is known to reduce the risk of unauthorized use of or access to secured platforms, such as the Services. NetSky will not be responsible for any damages, losses, or liability to Customer,Authorized Users, or anyone else if any event leading to such damages, losses, or liability would have been prevented by the use of 2FA.
(d)Customer also understands that it is responsible for which AuthorizedUsers have access to Customer Content, personal information, financial data, and any other information uploaded by Customer(“Customer Data”) or access to Customer’s account(s) andCustomer is responsible for ensuring that only sanctioned individuals have access to the Customer Data in any of Customer’s accounts, which may include Customer Data that is otherwise outside of the user’s access rights.
2.4 CustomerContent. Customer authorizes NetSky and its service providers touse Customer Content for the purpose of providing the Services and performing the activities contemplated by these Terms (such as maintaining, securing, debugging, and otherwise performing quality control of the Services).
2.5. Feedback.Customer may voluntarily provide NetSky feedback, comments, or suggestions concerning the Services (collectively, “Feedback”).To the extent Customer provides Feedback, Customer hereby grantsNetSky a royalty-free, worldwide, irrevocable, perpetual license to use, disclose, reproduce, license, distribute, and exploit anyFeedback, without restriction or obligation of any kind, including with respect to confidential information or intellectual property rights, to maintain, improve, develop, and enhance NetSky’s products and services.
2.6. UsageData. NetSky will have the right to collect and analyze data and other information relating to the access, use, and performance of theServices (“Usage Data”) and NetSky will be free (duringand after the Order Term) to use Usage Data in de-identified and aggregated form to maintain, improve, and enhance NetSky’s products or services. Examples of Usage Data include technical logs, metadata, telemetry data, and usage information about CustomerContent, such as how many times it is accessed. For clarity, UsageData excludes Customer Content itself.
2.7. Reservation of Rights. As between the parties, NetSky owns all right, title, and interest in the Services, Documentation, and any contents, features, and functionality related to the Services, including any text, images, recommendations, predictions, analysis, or other content generated, created, or returned by any artificial intelligence technologies, including systems, software, or processes that perform tasks or make decisions or predictions using machine learning, deep learning, natural language processing, or other forms of algorithmic or automated data analysis, as part of the Services(“AI Output”) generated as part of the Services, andCustomer owns all right, title, and interest in the Customer Content.Except as expressly set forth in this Agreement, each party retains all right, title, and interest in and to its intellectual property rights. All rights not expressly granted are reserved, and no license, covenant, immunity, transfer, authorization, or other right will be implied, by reason of statute, estoppel, or otherwise, under this Agreement. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Services in breach of these Terms, your right to use the Services will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by Netsky. Any use of the Services not expressly permitted by theseTerms is a breach of these Terms and may violate copyright, trademark, and other laws.
2.8. Reliance on Services. The information presented through theServices, including any AI Output, is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Customer must not rely on AI Output as the sole basis for business, operational, compliance, and/or other decisions and should independently verify any results. Customer acknowledges that it is solely responsible for evaluation of the AI Output provided as part of the Services and making informed business decisions. We disclaim all liability and responsibility arising from any reliance placed on such materials by the Customer, or by anyone who may be informed of any of its contents.
2.2. ConductRestrictions. While using the Services, you may not:
(a)Damage, disable, override, interfere with, or circumvent any aspect of the Services (including any safety, integrity, or privacy filters, instructions, controls, safeguards, or other mechanisms offered by, as part of, or with the Services);
(b)Interfere with the Services operation (e.g., by exceeding or trying to exceed load specifications or by using the Services to generate synthetic data) or anyone else’s use of the Services;
(c) Test, penetrate, or scan the Services for security vulnerabilities or limitations;
(d)Impersonate anyone or misrepresent your connection with any person or entity;
(e)Use the Services to compete with NetSky, or copy any ideas, features, functions, or graphics of the Services;
(f)Distribute any unwanted communication (e.g., using the Services to send spam);
(g)Access or use the Services in a manner intended to avoid incurring fees owed (e.g. by repeatedly transferring a seat to and from the same user(s) to avoid paying for the appropriate number of seats needed, or by sharing account credentials – each user account is personal to the user to which it is issued);
(h)Scrape, data mine, or access the Services, or content (including third party content made available through NetSky) programmatically;
(i)Use a third party’s content without their permission (e.g., use stolen content);
(j)Deceive or mislead any person, including by indication, that any AI output was solely human generated or modify, tamper with, remove, obscure, or otherwise alter any metadata, digital signatures, or watermarks that identify AI output as generated using a generative artificial intelligence model;
(k)Use the Services in a way that causes, or is intended to cause, bias, harm, or discrimination against an individual or to make solely automated decisions about individuals which could have a legal or similarly significant effect; or(l)act in bad faith.
2.3. AccountManagement and Customer Data.
(a)As part of the registration process, Customer will appoint one or more administrative users for Customer’s NetSky account. Each administrative user has the authority to manage Customer’s NetSky account, add or remove Authorized Users, approve purchases, and otherwise act on behalf of Customer for purposes relating to theServices and these Terms.
(b)Customer may enable Authorized Users to access and use the Services in accordance with any user manuals, handbooks, and guides relating to the Services (“Documentation”) provided by Netsky to the Customer and any limitations in contained in these Terms or otherwise provided to Customer by NetSky. Each Authorized User’s account is personal to the Authorized User to which it is issued.Account credentials may not be shared or used by anyone other than the individual to whom they were provisioned. Customer is responsible for its Authorized Users’ compliance with these Terms, and all activities of its Authorized Users. We reserve the right to withdraw or amend the Services, and Documentation and related products, websites, and platforms associated with the Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Service, or the entire Service, to Customer and any users, including registered users.
(c)Customer is responsible for providing accurate and complete account information and maintaining the accuracy and completeness of such information. Customer is responsible for maintaining control over itsAuthorized Users’ accounts, including the confidentiality of usernames and passwords. NetSky supports login using two-factor authentication (“2FA”),which is known to reduce the risk of unauthorized use of or access to secured platforms, such as the Services. NetSky will not be responsible for any damages, losses, or liability to Customer,Authorized Users, or anyone else if any event leading to such damages, losses, or liability would have been prevented by the use of 2FA.
(d)Customer also understands that it is responsible for which AuthorizedUsers have access to Customer Content, personal information, financial data, and any other information uploaded by Customer(“Customer Data”) or access to Customer’s account(s) andCustomer is responsible for ensuring that only sanctioned individuals have access to the Customer Data in any of Customer’s accounts, which may include Customer Data that is otherwise outside of the user’s access rights.
2.4 CustomerContent. Customer authorizes NetSky and its service providers touse Customer Content for the purpose of providing the Services and performing the activities contemplated by these Terms (such as maintaining, securing, debugging, and otherwise performing quality control of the Services).
2.5. Feedback.Customer may voluntarily provide NetSky feedback, comments, or suggestions concerning the Services (collectively, “Feedback”).To the extent Customer provides Feedback, Customer hereby grantsNetSky a royalty-free, worldwide, irrevocable, perpetual license to use, disclose, reproduce, license, distribute, and exploit anyFeedback, without restriction or obligation of any kind, including with respect to confidential information or intellectual property rights, to maintain, improve, develop, and enhance NetSky’s products and services.
2.6. UsageData. NetSky will have the right to collect and analyze data and other information relating to the access, use, and performance of theServices (“Usage Data”) and NetSky will be free (duringand after the Order Term) to use Usage Data in de-identified and aggregated form to maintain, improve, and enhance NetSky’s products or services. Examples of Usage Data include technical logs, metadata, telemetry data, and usage information about CustomerContent, such as how many times it is accessed. For clarity, UsageData excludes Customer Content itself.
2.7. Reservation of Rights. As between the parties, NetSky owns all right, title, and interest in the Services, Documentation, and any contents, features, and functionality related to the Services, including any text, images, recommendations, predictions, analysis, or other content generated, created, or returned by any artificial intelligence technologies, including systems, software, or processes that perform tasks or make decisions or predictions using machine learning, deep learning, natural language processing, or other forms of algorithmic or automated data analysis, as part of the Services(“AI Output”) generated as part of the Services, andCustomer owns all right, title, and interest in the Customer Content.Except as expressly set forth in this Agreement, each party retains all right, title, and interest in and to its intellectual property rights. All rights not expressly granted are reserved, and no license, covenant, immunity, transfer, authorization, or other right will be implied, by reason of statute, estoppel, or otherwise, under this Agreement. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Services in breach of these Terms, your right to use the Services will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by Netsky. Any use of the Services not expressly permitted by theseTerms is a breach of these Terms and may violate copyright, trademark, and other laws.
2.8. Reliance on Services. The information presented through theServices, including any AI Output, is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Customer must not rely on AI Output as the sole basis for business, operational, compliance, and/or other decisions and should independently verify any results. Customer acknowledges that it is solely responsible for evaluation of the AI Output provided as part of the Services and making informed business decisions. We disclaim all liability and responsibility arising from any reliance placed on such materials by the Customer, or by anyone who may be informed of any of its contents.
3. Charges and Payment.
3.1. Fees. Customer will pay NetSky all fees described inan Order inaccordance with the terms therein. Unless otherwise specified hereinor in an Order, (a) all fees are stated and solely payable in U.S.Dollars, (b) payment obligations are non-cancelable and not subjectto setoff, (c) fees paid are non-refundable, and (d) quantitiespurchased cannot be decreased during the relevant Order Term.Customer is solely responsible for any bank fees, interest charges,finance charges, overdraft charges, and any other fees Customerincurs as a result of the charges billed by NetSky. If the Orderautomatically renews, NetSky may change the fees applicable to arenewal by providing Customer at least 45 days’ written notice ofthe new fees before the end of the then-current Order Term. Forclarity, any change in fees will not apply to the then-currentOrder Term.
3.2. Payment.Unless otherwise specified in an Order or this Section, Customer will be invoiced monthly or annually inadvance, in accordance with the frequency and timing as set forth inthe applicable Order form, with full payment due 30 days from thedate of the applicable invoice. If Customer purchases itssubscription online, fees are due at the time of purchase. Unpaidamounts are subject to a finance charge of 1.5% per month on anyoutstanding balance, or the maximum permitted by law, whichever islower. In the event that Customer fails to pay the full amount owedunder an Order, NetSky may limit Customer’s access to the Services,in addition to any other rights or remedies NetSky may have.
3.3. Taxes.Fees do not include taxes. Each party is responsible for the paymentof all taxes (including any interest and penalties) in connectionwith this Agreement that are imposed on that party by law. ForCustomer, such taxes may include sales/use, gross receipts,value-added, GST, personal property, excise, consumption, and othersimilar taxes or duties. Each party will be responsible for its ownincome taxes, employment taxes, and real property taxes.
3.4. Withholding. All payments made by Customer to NetSky under this Agreement will exclude any deduction or withholding. If any such deduction or with holding (including cross-border withholding taxes) is required by law, Customer will pay such additional amounts as are necessary so that the net amount received by NetSky after such deduction or with holding will be equal to the full amount that NetSky would have received if no deduction or with holding had been required. Each party will use commercially reasonable efforts to work with the other partyto help obtain, reduce, or eliminate any necessary withholding,deduction, or royalty tax exemptions where applicable.
3.2. Payment.Unless otherwise specified in an Order or this Section, Customer will be invoiced monthly or annually inadvance, in accordance with the frequency and timing as set forth inthe applicable Order form, with full payment due 30 days from thedate of the applicable invoice. If Customer purchases itssubscription online, fees are due at the time of purchase. Unpaidamounts are subject to a finance charge of 1.5% per month on anyoutstanding balance, or the maximum permitted by law, whichever islower. In the event that Customer fails to pay the full amount owedunder an Order, NetSky may limit Customer’s access to the Services,in addition to any other rights or remedies NetSky may have.
3.3. Taxes.Fees do not include taxes. Each party is responsible for the paymentof all taxes (including any interest and penalties) in connectionwith this Agreement that are imposed on that party by law. ForCustomer, such taxes may include sales/use, gross receipts,value-added, GST, personal property, excise, consumption, and othersimilar taxes or duties. Each party will be responsible for its ownincome taxes, employment taxes, and real property taxes.
3.4. Withholding. All payments made by Customer to NetSky under this Agreement will exclude any deduction or withholding. If any such deduction or with holding (including cross-border withholding taxes) is required by law, Customer will pay such additional amounts as are necessary so that the net amount received by NetSky after such deduction or with holding will be equal to the full amount that NetSky would have received if no deduction or with holding had been required. Each party will use commercially reasonable efforts to work with the other partyto help obtain, reduce, or eliminate any necessary withholding,deduction, or royalty tax exemptions where applicable.
4. Confidentiality.
4.1. Confidential Information. Netsky may disclose proprietary or non-public, confidential, or proprietary business, technical, financial, or other information in anticipation of this Agreement or during the term of this Agreement (“ConfidentialInformation”) to the Customer. Confidential Information of NetSky expressly includes, but is not limited to, non-publicinformation regarding features, functionality, and performance of the Services and any other technologies, business plans, technical information, software, trade secrets, and any other similarly non-public information
4.2. Obligations.Customer shall hold all Confidential Information in strict confidence and shall not, without the prior written consent of Netsky, disclose,use, copy, or permit the use or disclosure of any ConfidentialInformation for any purpose other than as expressly authorized byNetsky. Customer agrees to take all reasonable measures to protectthe confidentiality and avoid the unauthorized disclosure of Netsky’sConfidential Information. Customer will ensure that its employees,contractors, Affiliates, agents, or professional advisors(“Representatives”) are subject to confidentiality obligations that are no less restrictive than those herein. Upon termination of this Agreement or upon Netsky’s request, Customer,and any Representatives and users on behalf of the Customer, shallpromptly return or destroy all materials containing Confidential Information, including all copies, notes, or other embodiments thereof.
Customer acknowledges that any breach of this provision may cause irreparable harm to Netsky for which monetary damages may be inadequate, and Netsky shall be entitled to seek injunctive relief, in addition toany other remedies available at law or in equity. With respect toeach Order, the obligations set forth herein will survive for theduration of the Order Term and five years following the expiration ortermination of such Order.
4.2. Obligations.Customer shall hold all Confidential Information in strict confidence and shall not, without the prior written consent of Netsky, disclose,use, copy, or permit the use or disclosure of any ConfidentialInformation for any purpose other than as expressly authorized byNetsky. Customer agrees to take all reasonable measures to protectthe confidentiality and avoid the unauthorized disclosure of Netsky’sConfidential Information. Customer will ensure that its employees,contractors, Affiliates, agents, or professional advisors(“Representatives”) are subject to confidentiality obligations that are no less restrictive than those herein. Upon termination of this Agreement or upon Netsky’s request, Customer,and any Representatives and users on behalf of the Customer, shallpromptly return or destroy all materials containing Confidential Information, including all copies, notes, or other embodiments thereof.
Customer acknowledges that any breach of this provision may cause irreparable harm to Netsky for which monetary damages may be inadequate, and Netsky shall be entitled to seek injunctive relief, in addition toany other remedies available at law or in equity. With respect toeach Order, the obligations set forth herein will survive for theduration of the Order Term and five years following the expiration ortermination of such Order.
5. Warranties.
5.1. Customer Warranties. Customer represents andwarrants to the other that: (a) this Agreement has been duly executedand delivered and constitutes a valid and binding agreementenforceable against Customer in accordance with its terms; (b) theexecution, delivery, and performance of this Agreement by Customerdoes not violate the terms or conditions of any other agreement towhich it is a party or by which it is otherwise bound or requireauthorization or approval from any third party; (c) it will performits rights and obligations under this Agreement in accordance withapplicable law; and (d) it owns or has obtained and willmaintain all rights, licenses, consents, and permissions necessaryfor Company’s lawful use, hosting, processing, display, anddistribution of Customer Content and Customer Content does not andwill not infringe, misappropriate, or violate any intellectualproperty, privacy, publicity, or other rights of any third party.
5.2. DISCLAIMER.NETSKY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHEREXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), ORSTATUTORY, AS TO ANY MATTER WHATSOEVER RELATING TO THIS AGREEMENT.NETSKY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, ANDNON-INFRINGEMENT. APPLICATIONS AND MATERIALS THAT ARE DEVELOPED OROTHERWISE PROVIDED BY A PARTY OTHER THAN NETSKY, INCLUDING DESIGNFILES, PLUGINS, COMPONENT LIBRARIES, SERVICES, PRODUCTS, PLATFORMS,INTEGRATIONS, AND CODE COMPONENTS (“NON-NETSKY RESOURCES”)ARE PROVIDED BY THIRD PARTIES, NOT NETSKY, AND ANY USE OF NON-NETSKYRESOURCES IS SOLELY BETWEEN CUSTOMER AND THE APPLICABLE THIRD-PARTYPROVIDER. NETSKY DOES NOT WARRANT OR SUPPORT, AND WILL NOT HAVE ANYRESPONSIBILITY OR LIABILITY OF ANY KIND FOR, NON-NETSKY RESOURCES. IFYOU DECIDE TO ACCESS ANY OF THE THIRD-PARTY RESOURCES LINKED TO THESERVICES, YOU DO SO ENTIRELY AT YOUR OWN RISK AND SUBJECT TO THETERMS AND CONDITIONS OF USE FOR SUCH THIRD-PARTY RESOURCES.WITHOUTLIMITATION TO THE FOREGOING, NETSKY PROVIDES NO WARRANTY ORUNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THEAPPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDEDRESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE,APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION,MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, ORTHAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.SOMEJURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIEDWARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF ACONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAYNOT APPLY TO YOU.
5.2. DISCLAIMER.NETSKY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHEREXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), ORSTATUTORY, AS TO ANY MATTER WHATSOEVER RELATING TO THIS AGREEMENT.NETSKY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, ANDNON-INFRINGEMENT. APPLICATIONS AND MATERIALS THAT ARE DEVELOPED OROTHERWISE PROVIDED BY A PARTY OTHER THAN NETSKY, INCLUDING DESIGNFILES, PLUGINS, COMPONENT LIBRARIES, SERVICES, PRODUCTS, PLATFORMS,INTEGRATIONS, AND CODE COMPONENTS (“NON-NETSKY RESOURCES”)ARE PROVIDED BY THIRD PARTIES, NOT NETSKY, AND ANY USE OF NON-NETSKYRESOURCES IS SOLELY BETWEEN CUSTOMER AND THE APPLICABLE THIRD-PARTYPROVIDER. NETSKY DOES NOT WARRANT OR SUPPORT, AND WILL NOT HAVE ANYRESPONSIBILITY OR LIABILITY OF ANY KIND FOR, NON-NETSKY RESOURCES. IFYOU DECIDE TO ACCESS ANY OF THE THIRD-PARTY RESOURCES LINKED TO THESERVICES, YOU DO SO ENTIRELY AT YOUR OWN RISK AND SUBJECT TO THETERMS AND CONDITIONS OF USE FOR SUCH THIRD-PARTY RESOURCES.WITHOUTLIMITATION TO THE FOREGOING, NETSKY PROVIDES NO WARRANTY ORUNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THEAPPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDEDRESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE,APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION,MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, ORTHAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.SOMEJURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIEDWARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF ACONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAYNOT APPLY TO YOU.
6. Indemnity.
6.1. Indemnification. Customer agrees to defend,indemnify, and hold harmless Netsky, its Affiliates, licensors, andservice providers, and its and their respective officers, directors,employees, contractors, agents, licensors, suppliers, successors, andassigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonableattorneys' fees) arising out of or relating to your violation of these Terms or an user that is using the Services on behalf of a Customer, including, but not limited to, any use of the Service’s content, services, and products other than as expressly authorized in these Terms, or your use of any information obtained from the Services.
7. Limitations of Liability.
7.1. Limitation on Indirect Liability. UNDER NOCIRCUMSTANCES, AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR ANY OTHERTHEORY OF LIABILITY), WILL NETSKY, ITS AFFILIATES AND ITS OR THEIRCONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS,OR SUPPLIERS (COLLECTIVELY, ITS “NETSKY REPRESENTATIVES”),BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OREXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS, DATA, OR USE OR COST OFCOVER) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF ORTHE INABILITY TO USE THE SERVICES, EVEN IF SUCH PARTY HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2. Limitationon Amount of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NOLEGAL THEORY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE),STRICT LIABILITY, WARRANTY, OR ANY OTHER THEORY OF LIABILITY), WILLNETSKY’S OR NETSKY’S REPRESENTATIVES’ TOTAL LIABILITY FOR ANYAND ALL DAMAGES AND CAUSES OF ACTION ARISING OUT OF OR RELATING TOTHIS AGREEMENT OR THE USE OF OR THE INABILITY TO USE THE SERVICES,EXCEED, IN THE MAXIMUM AGGREGATE, THE FEES PAID AND PAYABLE TO NETSKYUNDER THE CUSTOMER’S APPLICABLE ORDER IN THE TWELVE-MONTH PERIODPRIOR TO THE DATE ON WHICH THE DAMAGE OCCURRED.
7.3. INGENERAL. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR ALIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OFDAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THEPARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BYNETSKY TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THEBARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLEAND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THELIMITATIONS IN THIS SECTION 7 WILL APPLY TO THE MAXIMUM EXTENT NOTPROHIBITED BY LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIALPURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
7.2. Limitationon Amount of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NOLEGAL THEORY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE),STRICT LIABILITY, WARRANTY, OR ANY OTHER THEORY OF LIABILITY), WILLNETSKY’S OR NETSKY’S REPRESENTATIVES’ TOTAL LIABILITY FOR ANYAND ALL DAMAGES AND CAUSES OF ACTION ARISING OUT OF OR RELATING TOTHIS AGREEMENT OR THE USE OF OR THE INABILITY TO USE THE SERVICES,EXCEED, IN THE MAXIMUM AGGREGATE, THE FEES PAID AND PAYABLE TO NETSKYUNDER THE CUSTOMER’S APPLICABLE ORDER IN THE TWELVE-MONTH PERIODPRIOR TO THE DATE ON WHICH THE DAMAGE OCCURRED.
7.3. INGENERAL. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR ALIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OFDAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THEPARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BYNETSKY TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THEBARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLEAND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THELIMITATIONS IN THIS SECTION 7 WILL APPLY TO THE MAXIMUM EXTENT NOTPROHIBITED BY LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIALPURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
8. Term and Termination.
8.1. Term. The term of this Agreement will commence onthe Subscription Start Date of the first Order entered into betweenthe parties and will continue until all Orders hereunder expire oruntil terminated in accordance with this Section 8, whicheverhappens first.
8.2 Termination.Netsky may terminate an individual Order or this Agreement uponwritten notice to the Customer, if the Customer breaches thisAgreement and such breach is incapable of cure, or with respect to abreach capable of cure, the breaching party does not cure such breachwithin 30 days of receiving notice of it. Netsky may terminate orsuspend an individual Order or this Agreement upon written notice tothe Customer without a cure period if (a) the Customer breaches anyof the terms relating to such party’s intellectual property rightsor Confidential Information, or (b) if the Customer becomes thesubject of a petition in bankruptcy or any other proceeding relatingto insolvency, receivership, liquidation, or assignment for thebenefit of creditors.
8.3. Effectof Termination. Termination of this Agreement will result intermination of all ongoing Orders; however, termination of a singleOrder will not result in termination of this Agreement or any otherongoing Orders. If this Agreement or any Order is terminated for abreach of this Agreement, Customer will not receive a refund and willpay all fees as if the Order had not been terminated. Upon anytermination, to the extent permitted by applicable law, NetSky willmake all Customer Content then held by NetSky pursuant to theapplicable Order available to Customer for electronic retrieval for aperiod of 30 days, but thereafter NetSky will delete or retain anystored Customer Content. The following sections of this Agreementwill survive any expiration or termination of this Agreement: 2, 4,5.3, and 7-9.
8.2 Termination.Netsky may terminate an individual Order or this Agreement uponwritten notice to the Customer, if the Customer breaches thisAgreement and such breach is incapable of cure, or with respect to abreach capable of cure, the breaching party does not cure such breachwithin 30 days of receiving notice of it. Netsky may terminate orsuspend an individual Order or this Agreement upon written notice tothe Customer without a cure period if (a) the Customer breaches anyof the terms relating to such party’s intellectual property rightsor Confidential Information, or (b) if the Customer becomes thesubject of a petition in bankruptcy or any other proceeding relatingto insolvency, receivership, liquidation, or assignment for thebenefit of creditors.
8.3. Effectof Termination. Termination of this Agreement will result intermination of all ongoing Orders; however, termination of a singleOrder will not result in termination of this Agreement or any otherongoing Orders. If this Agreement or any Order is terminated for abreach of this Agreement, Customer will not receive a refund and willpay all fees as if the Order had not been terminated. Upon anytermination, to the extent permitted by applicable law, NetSky willmake all Customer Content then held by NetSky pursuant to theapplicable Order available to Customer for electronic retrieval for aperiod of 30 days, but thereafter NetSky will delete or retain anystored Customer Content. The following sections of this Agreementwill survive any expiration or termination of this Agreement: 2, 4,5.3, and 7-9.
9. Miscellaneous.
9.1. Affiliates. A Customer Affiliate may enter into anOrder under this Agreement and, in such case, by entering into theOrder, the Affiliate agrees to be bound by the terms and conditionsof this Agreement with respect to such Order and such Affiliate willbe considered to be Customer, as such term is used herein, with respect to such Order. This Agreement is intended for the benefit ofthe parties who have entered into an Order under this Agreement andtheir respective permitted successors and assigns, and is not for the benefit of, nor may any provision here of be enforced by, anyother person.
9.2. ForceMajeure. Neither party will have any liability for failures ordelays resulting from that party experiencing a Force Majeure Event.If a party experiences a Force Majeure Event, such party will: (a)promptly notify the other party of occurrence of the Force MajeureEvent; and (b) use reasonable efforts to limit damages to the otherparty and to resume its performance under this Agreement. If a ForceMajeure Event causes a party to fail to comply with its obligationsunder this Agreement for 30 or more consecutive days, either partymay terminate this Agreement upon written notice, without liability.“Force Majeure Event” means any event or circumstance(other than a party’s inability to satisfy payment obligations)that is outside a party’s reasonable control, whether or notforeseeable.
9.3. Notices.All notices, requests, consents, claims, demands, waivers, and othercommunications under this Agreement (each, a “Notice”)must be in writing (electronic mail sufficient) and sent to:
NetSky:contact@netsky.ai
Customer:Contact identified in the Order
9.4. Severability;No Waiver. The invalidity or unenforceability of any provision ofthis Agreement will not affect the validity or enforceability of anyother provision hereof and it is the intent and agreement of theparties that these Terms will be deemed amended by modifying suchprovision to the extent necessary to render it valid, legal, andenforceable while preserving its intent or, if such modification isnot possible, by substituting another provision that is legal andenforceable and achieves the same objective. No failure or delay byeither party in exercising any right under the Terms will constitutea waiver of that right.
9.5. Assignment.This Agreement is not assignable or transferable by Customer withoutNetsky’s prior written consent. Netsky may (without Customer’sprior written consent) assign this Agreement, in whole, in connectionwith a merger, acquisition, corporate reorganization, or sale of allor substantially all of such party’s assets.
9.6. ServiceProviders. For the avoidance of doubt, NetSky may engage thirdparty service providers to support its performance of this Agreement.Nevertheless, NetSky will remain responsible for compliance withthis Agreement.9.7. NoPartnership. No agency, partnership, joint venture, or employmentis created as a result of this Agreement, and neither party has anyauthority of any kind to bind the other party.
9.8. GoverningLaw and Dispute Resolution. These Terms and the Agreement as awhole will be governed by the laws of the State of Delaware. Allclaims arising out of or relating to these Terms or this Agreementwill be brought exclusively in the federal or state courts of [insertcounty, state],USA.
9.9. Anti-Corruption.Customer has not offered, promised, authorized, solicited, or received any illegal or improper bribe, kickback, payment, gift, orthing of value from an employee or agent of the other party inconnection with this Agreement. Reasonable gifts and entertainmentprovided in the ordinary course of business do not violate the aboverestriction.
9.10. EntireAgreement. These Terms supersedes all other agreementsbetween the parties relating to its subject matter. The partiesexpressly agree that any different or additional terms set forth inany purchase order, vendor portal, code of conduct, or other similardocumentation provided by you will not apply between the parties evenif signed, acknowledged or accepted by NetSky, unless NetSkyspecifically references this clause and waives its rights.
9.11. Changes to the Terms or Services. NetSky may modify the Termsat any time, at our sole discretion. If we do so, we will let youknow either by posting the modified Terms on our website or throughother communications. If you continue to use the Services after suchchange, you are indicating that you agree to the modified Terms. Wemay also change or discontinue all or any part of the Services, atany time and without notice or liability, at our sole discretion.
9.12. Contact. For questions, complaints, or claims you may have with regard to these Terms, contact us at contact@netsky.ai.
9.2. ForceMajeure. Neither party will have any liability for failures ordelays resulting from that party experiencing a Force Majeure Event.If a party experiences a Force Majeure Event, such party will: (a)promptly notify the other party of occurrence of the Force MajeureEvent; and (b) use reasonable efforts to limit damages to the otherparty and to resume its performance under this Agreement. If a ForceMajeure Event causes a party to fail to comply with its obligationsunder this Agreement for 30 or more consecutive days, either partymay terminate this Agreement upon written notice, without liability.“Force Majeure Event” means any event or circumstance(other than a party’s inability to satisfy payment obligations)that is outside a party’s reasonable control, whether or notforeseeable.
9.3. Notices.All notices, requests, consents, claims, demands, waivers, and othercommunications under this Agreement (each, a “Notice”)must be in writing (electronic mail sufficient) and sent to:
NetSky:contact@netsky.ai
Customer:Contact identified in the Order
9.4. Severability;No Waiver. The invalidity or unenforceability of any provision ofthis Agreement will not affect the validity or enforceability of anyother provision hereof and it is the intent and agreement of theparties that these Terms will be deemed amended by modifying suchprovision to the extent necessary to render it valid, legal, andenforceable while preserving its intent or, if such modification isnot possible, by substituting another provision that is legal andenforceable and achieves the same objective. No failure or delay byeither party in exercising any right under the Terms will constitutea waiver of that right.
9.5. Assignment.This Agreement is not assignable or transferable by Customer withoutNetsky’s prior written consent. Netsky may (without Customer’sprior written consent) assign this Agreement, in whole, in connectionwith a merger, acquisition, corporate reorganization, or sale of allor substantially all of such party’s assets.
9.6. ServiceProviders. For the avoidance of doubt, NetSky may engage thirdparty service providers to support its performance of this Agreement.Nevertheless, NetSky will remain responsible for compliance withthis Agreement.9.7. NoPartnership. No agency, partnership, joint venture, or employmentis created as a result of this Agreement, and neither party has anyauthority of any kind to bind the other party.
9.8. GoverningLaw and Dispute Resolution. These Terms and the Agreement as awhole will be governed by the laws of the State of Delaware. Allclaims arising out of or relating to these Terms or this Agreementwill be brought exclusively in the federal or state courts of [insertcounty, state],USA.
9.9. Anti-Corruption.Customer has not offered, promised, authorized, solicited, or received any illegal or improper bribe, kickback, payment, gift, orthing of value from an employee or agent of the other party inconnection with this Agreement. Reasonable gifts and entertainmentprovided in the ordinary course of business do not violate the aboverestriction.
9.10. EntireAgreement. These Terms supersedes all other agreementsbetween the parties relating to its subject matter. The partiesexpressly agree that any different or additional terms set forth inany purchase order, vendor portal, code of conduct, or other similardocumentation provided by you will not apply between the parties evenif signed, acknowledged or accepted by NetSky, unless NetSkyspecifically references this clause and waives its rights.
9.11. Changes to the Terms or Services. NetSky may modify the Termsat any time, at our sole discretion. If we do so, we will let youknow either by posting the modified Terms on our website or throughother communications. If you continue to use the Services after suchchange, you are indicating that you agree to the modified Terms. Wemay also change or discontinue all or any part of the Services, atany time and without notice or liability, at our sole discretion.
9.12. Contact. For questions, complaints, or claims you may have with regard to these Terms, contact us at contact@netsky.ai.