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1.1 “Account” means Customer’s account with Skubana for use of the Services by Customer.
1.2 “API” means the application programming interface made available to You by Skubana that facilitates the incorporation of certain aspects of the Services into Your existing software and systems.
1.3. “Beta Tester” means a party using the Services in a manner authorized by Skubana, where some or all of the particular services accessed by that party have not been fully released to all of Skubana’s Customers.
1.4 “Customer” means the party authorized under the Agreement to use the Services, including as a Beta Tester.
1.5 “Customer Agreement” means the document entitled Customer Agreement.
1.6 “Customer Data” means any and all information, data, materials, works, expressions, or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of Customer for processing by or through the Services, or (b) collected, downloaded, or otherwise received by Skubana for Customer pursuant to this Agreement or at the written request or instruction of Customer, including, without limitation, all personally identifiable information of Customer’s customers. All output, copies, reproductions, improvements, modifications, adaptations, translations, and other derivative works of, based on, derived from, or otherwise using any Customer Data are themselves also Customer Data. For the avoidance of doubt, Customer Data includes all User data and personal information but does not include any Technology or Resultant Data.
1.7 “Documentation” means all materials, including drawings, diagrams, specifications, product descriptions, manuals and instructions that Skubana provides (either in digital or hard copy form) to assist and define Customer’s use of the Services.
1.8 “Fees” means the monies due from Customer to Skubana as consideration for the Services and Licenses in the Agreement in connection with the Services and as set forth in the Customer Agreement. “Additional Fees” means the monies due from Customer to Skubana for (i) Customer’s use of features or functionality of the Skubana Platform outside of the scope of the Agreement, (ii) any additional work requested by Customer beyond the scope set forth in the Agreement at an hourly rate set forth in a written addendum signed by both Skubana and Customer, and (iii) API fees.
1.9 “Initial Term” has the meaning as defined in the Customer Agreement.
1.10 “Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trademarks (including Marks), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information as described herein, and all other intellectual property and all pending applications for any of the foregoing and including all renewals, extensions, revivals and all accrued rights of action.
1.11 “Insolvency Event” means, in relation to either party, any of the following events: (a) the company commences a voluntary case under title 11 of the United States Code or the corresponding provisions of any successor laws; (b) anyone commences an involuntary case against the company under title 11 of the United States Code or the corresponding provisions of any successor laws and either (i) the case is not dismissed by midnight at the end of the 60th day after commencement or (ii) the court before which the case is pending issues an order for relief or similar order approving the case; (c) a court of competent jurisdiction appoints, or the company makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in title 11 of the United States Code or the corresponding provisions of any successor laws) for the company or all or substantially all of its assets; or (d) the company fails generally to pay its debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.
1.12 “License” means the licenses expressly granted herein by Skubana to Customer to use the Service.
1.13 “Marks” means any word, symbol or device, or any combination thereof, used or intended to be used by a party to identify and distinguish the party’s or its third-party licensor’s products or services from the products or services of others, including without limitation trade names, trademarks, service marks and logos. “Customer Marks” refer to any Marks of Customer and includes third party marks Customer may provide to Skubana or that are incorporated in Product Information. “Skubana Marks” refers to Marks of Skubana and includes third-party marks Skubana may provide to Customer.
1.14 “Product Information” means all information and materials specifically related to Customer products that Customer provides or uploads to Skubana’s Website or otherwise stores in the Skubana Platform, or that Customer directs Skubana to collect on Customer’s behalf, including without limitation image files, text, templates, product descriptions, prices, Customer Marks, URLs and any other related information.
1.15 “Representatives” collectively means the affiliates, directors, officers, shareholders, members, employees, subcontractors, permitted assigns and agents of a party.
1.16 “Renewal Term” means as it is defined in the Customer Agreement.
1.17 “Resultant Data” means transactional data and information related to Customer’s use of the Services in an aggregated and anonymized manner.
1.18 “Security Obligation” means responsibility for maintaining the security of account login information (username and password).
1.19 “Service” or “Services” means the services to be provided by Skubana, including without limitation any licensed software, code, or functionality, including but not limited to Customer’s access to the Skubana Platform. Services shall also include updates and upgrades subsequently provided to the Skubana Platform or the Technology. Services shall also include any additional services as identified in the Customer Agreement and any addendum, schedule or exhibit thereto.
1.20 “Skubana” means Skubana Inc or any successor or assignee or subcontractor of Skubana.
1.21 “Skubana Platform” means the cloud-based service provided by Skubana to its Customers.
1.22 “Technology” means, collectively, the Skubana Platform and Services, Documentation, functionality, URLs and integrations that enable Customer access to the Skubana Platform, analytics, transaction information, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports that are provided or used by Skubana in connection with the Services and any software or technology incorporated in or made available by Skubana through the Skubana Platform or Services, expressly excluding Customer Data, Product Information and Customer Marks unless otherwise stated in a writing signed by the parties.
1.23 “Term” means as defined in the Customer Agreement.
1.24 “Us” means Skubana.
1.25 “User” or “Users” means the individuals for whom Customer has procured subscriptions to the Services, as identified to Skubana, and may include, but are not limited to, individuals employed by You or otherwise working for You at Your direction, and who are authorized by You to access and use the Service, including You.
1.26 “You” or “Your” refers to the Customer.
1.27 “We” or “Our” refers to Skubana.
1.28 “Website” means Skubana.com or such other website or mobile access point from which Skubana may make the Service available.
2. LICENSE / RESTRICTIONS / INTELLECTUAL PROPERTY / DATA.
2.1 License. Skubana grants the Customer a limited, non-transferrable, non-exclusive license to use and access the Service solely for Customer’s business purposes subject to the restrictions and limitations set forth in the Agreement. All rights not expressly granted to You in the Agreement are reserved and retained by Skubana.
2.2 License Limitations and Restrictions.
(a) Prohibited Actions. Customer shall not:
(b) Notification of Unauthorized or Breaching Use. You must notify Us immediately in the event that You become aware of any actual or attempted unauthorized access to or use of the Service, Skubana Platform, or Technology in breach of this Agreement.
(c) Technology; Source Code. Except as expressly stated in the Agreement, no licenses or rights are granted by Skubana and nothing in the Agreement implies any license to Customer in the Technology, including, without limitation, the source code. The source code will not be accessible to any Customers or Users. Customer agrees that the underlying structure, sequence, organization and source code of the Technology are valuable trade secrets of Skubana, are confidential information, and shall remain strictly confidential.
2.3 Intellectual Property Ownership.
(a) Customer’s Rights. Customer owns all right, title and interest in the Product Information, Customer Data, and Customer Marks. Customer acknowledges and agrees that, in connection with the provision of the Services, Skubana may store and maintain Customer Data and Product Information for a period of time consistent with Skubana’s standard business processes for the Services. Customer grants Skubana a limited, revocable, non-exclusive, non-transferable (except in connection with an assignment of this Agreement), sublicensable license to use, access, store and process the Customer Data and Product Information to the extent necessary to provide the Services and otherwise fulfill its rights and obligations under this Agreement. And Customer grants Skubana a royalty-free, worldwide, perpetual, irrevocable, right to use, modify, distribute, publish, display, and incorporate into the Services any suggestions or feedback provided Customer or any Users related to the operation or functionality of the Service. Following expiration or termination of this Agreement or Customer’s account, Skubana may deactivate the applicable Customer’s account and delete any data, including Customer Data and Product Information, associated therewith. Prior to such deactivation, Customer may export the Customer Data. Upon such deactivation, if Customer has paid Skubana in full any Fees and Additional Fees due under this Agreement, Skubana may, in its sole discretion, provide for the exportation of Customer Data for a period of up to thirty (30) days following deactivation of Customer’s Account. Notwithstanding the foregoing, nothing in this Agreement is intended to prevent Skubana from generating and using the Technology, Service or Skubana Platform for purposes of providing, measuring, improving and marketing Skubana’s products and services; provided that Skubana shall not disclose to any third party any information that is identifiable as Customer Data. And notwithstanding anything to the contrary herein, Skubana may, for any purpose chosen in Skubana’s sole discretion, compile, use, sell, license, rent or otherwise disclose to any third party, and retain in perpetuity, Resultant Data and Customer shall not have any rights whatsoever with respect to any materials that result from such use of Resultant Data.
(b) Skubana’s Rights. All rights, title and interest in and to the Technology, Service, Skubana Platform, Skubana Marks, and Resultant Data (including without limitation all Intellectual Property rights in the Technology, Service, Skubana Platform, Skubana Marks, and Resultant Data and all modifications, extensions, customizations, scripts or other derivative works of thereof provided or developed by Skubana) are owned exclusively by Skubana. Except as provided in this Agreement, the rights granted to Customer do not convey any rights, express or implied, or ownership to the Technology, Service, Skubana Platform, Skubana Marks, and Resultant Data or any Intellectual Property rights thereto.
2.4 Documentation Licenses. Skubana grants Customer the non-exclusive right to use the Documentation solely in conjunction with Customer’s use of the Service, Technology, and Skubana Platform during the Term. Skubana and any applicable third parties reserve all rights in their respective Documentation.
2.5 Marks Licenses. Customer hereby grants to Skubana a limited, non-exclusive, non-assignable, non-transferable license, without right to sublicense, to use its Marks in connection with the Services, and for publicity, advertising, and marketing. Skubana may not alter Customer Marks in any manner, or use Customer Marks in any manner that may dilute, diminish, or otherwise damage Customer’s rights and goodwill in its Marks. Any usage of Customer Marks by Skubana will be a reproduction of exact copies and all use of the Marks is subject to the Customer’s usage guidelines as revised from time to time and available from the Customer.
3. TERMS OF SERVICE
3.1 Access, Monitoring, Removal. Skubana may access, monitor, remove content within, or disable Customer access to the Technology, Skubana Platform and/or Services if: (a) Skubana, in its reasonable discretion, believes it may incur liability because of Customer Data or the Product Information, (b) Skubana is required to do so by law, government order or other legal process, (c) Skubana determines in its sole discretion that it is necessary to enforce the terms of the Agreement, (d) Skubana, in its reasonable discretion, believes it is necessary to do so to support, manage, improve and protect the integrity of the Service, (e) Skubana, in its reasonable discretion, believes it is necessary to prevent illegal activity, uploading of virus infected files or questionable material, or (f) Customer breaches the Agreement. Skubana shall have no liability to Customer nor to any third party for any disabling of Customer’s access and Customer shall remain liable for Fees and Additional Fees even during such disabling. Customer acknowledges that Skubana’s right to access or monitor shall in no way be construed as an obligation by Skubana to monitor any Customer Data or Product Information or to pre-screen Customer Data or Product Information.
3.2 Changes to Service. In its reasonable discretion, Skubana may discontinue offering the Service, Skubana Platform or Technology, in whole or in part, or modify any design, layout, features, functionality, tools or content of the Service, Skubana Platform, and/or Technology, at any time, for any reason or no reason, with or without notice to You (although Skubana has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions). If any discontinuance or modification of a material part of the Services, Skubana Platform, and/or Technology materially reduces functionality and materially and adversely impacts Customer’s substantive use of the Skubana Platform, Technology, or Services, as determined by Skubana, in its sole discretion, Customer’s sole and exclusive remedy is to terminate the Agreement by providing at least thirty (30) days prior written notice to Skubana. Any new features provided by Skubana which augment or enhance the current Service, Technology, and/or Skubana Platform, including the release of new tools or resources, updates and upgrades by Skubana, may result in Additional Fees to Customer which shall be due and payable by the Customer pursuant to a mutually executed modification or addendum to the Agreement.
3.3 Maintenance. Skubana may temporarily suspend the Skubana Platform, Technology, or any Services, for maintenance from time to time. Skubana will advise Customer (via Live Chat or other electronic means such as email) in advance of maintenance, unless, in Skubana’s sole discretion, it is impossible or impractical to do so.
3.4 Individual Account Holders. In order for a Customer to subscribe to the Service, each account must be assigned to an individual person or employee at a Customer. Skubana cannot and will not accept any subscriptions where accounts are registered or run through automated methods.
3.5 Signup. Customers must provide their full legal name, address, and a valid email address in order to complete the signup process.
3.6 Customer Responsibility for Users. Customers are responsible for ensuring that their Users comply with the terms of this Agreement and Customer is liable for breaches of the Agreement by the User.
3.7 Service Control. Except as otherwise expressly provided in this Agreement, Skubana has and will retain sole control over the operation, provision, maintenance, and management of the Technology, Service and the Skubana Platform.
3.8 Transmission. Customer acknowledges that Customer’s information and Customer’s Data (personal or otherwise) may be transmitted to the United States as a result of Skubana providing the Services.
4. CUSTOMER OBLIGATIONS.
4.1 Product Information and Customer Data. Customer is responsible for providing all Product Information and Customer Data in local languages and for providing buyer support in those local languages, unless expressly stated in a writing signed by the parties.
4.2 Load Restrictions. Customer must not place an unreasonable or disproportionately large load on the Skubana Platform (as detailed, and incorporated herein, in the Skubana API documentation – https://documentation.skubana.com – as may be amended from time to time and/or in the Customer Agreement) as determined by Skubana in its sole discretion (including without limitation the number of keywords and SKUs processed by the Skubana Platform), and Skubana may limit or restrict Customer’s access to the Technology, Skubana Platform or the Services if Customer’s activities unreasonably or disproportionately burden any portion of the Services.
4.3 Customer’s Privacy. As a condition to use the Service, Technology, and/or Skubana Platform, Customer must:
(c) ensure that Customer’s privacy statement discloses the use of “cookies” or similar technologies that may be used by Customer or a third party (including Skubana) to track browsing and purchasing habits, and such use of “cookies” complies with all applicable laws, rules and regulations, foreign law, treaties, and conventions, including any opt in and opt out requirement.
4.4 Security Obligations. Customer is responsible for maintaining their Security Obligation. Customer must notify Skubana immediately in the event of loss of the Customer’s username or password. Customer must report any security breaches promptly to Skubana.
4.5 Fulfillment/Shipment/Inventory/Taxes. Customer is responsible for fulfilling all of its customer’s orders. Customer agrees to ship all products within a commercially reasonable time after Customer has received payment for the products. As between Skubana and Customer, title and risk of loss for Customer’s products remains with Customer at all times. Customer is solely responsible for maintaining inventory levels sufficient to support its sales of products and comply with the Federal Trade Commission (FTC) “Mail or Telephone Order Merchandise Rule” set forth in 16 CFR Part 435 as updated from time to time. Customer is responsible for identifying the products that it offers that are subject to sales, use, VAT, GST, and/or similar taxes and providing the applicable rates and information to Skubana. Customer shall apply, or advise Skubana to apply, the rates required by applicable laws, rules and regulations, foreign law, treaties, and conventions and Customer shall determine and pay all taxes including without limitation any sales, use or ad valorem taxes, and excluding taxes based upon Skubana’s net income. Customer shall reimburse Skubana for any taxes, interest and penalties levied against Skubana if Customer fails to remit such taxes, interest and/or penalties. Customer is responsible for identifying to Skubana its main tax location where Customer will access the Skubana Platform or Service. Where obligated by applicable law, Skubana will, for the benefit of Customer, collect all applicable local, state, national or international taxes that are owed as a result of Customer’s use of the Skubana Platform or Service, and remit collected taxes to the appropriate taxing authority based on Customer’s main billing address of record.
4.7 Customer Usage. Customer shall use commercially reasonable efforts to perform all acts and to make, execute and deliver all documents, data, and access credentials that Customer needs to perform or provide in order for Skubana to provide the Services.
5. BETA TESTING
5.1 Beta Testers. Skubana may, in its sole discretion, offer eligible Customers the opportunity to be Beta Testers of the Service or new features or versions of the Service from time to time, in a manner authorized by Skubana, and as subject to the Agreement.
5.2 Beta Test Period. If You subscribe to the Service as a Beta Tester for a period of time (“Beta Test Period”), the length of any such Beta Test Period may vary and will be indicated at the time You register for Your subscription.
5.3 Expiration. You will be notified when Your Beta Test Period will expire. If Your Beta Test Period expires and You have not subscribed to a paid subscription to the Service, You will still be able to access some of the Service (very limited features), but You will no longer be able to manage orders, view inventory reports, or access other features at Skubana’s sole discretion.
5.4 Subject to the Agreement. If You subscribe to the Service as a Beta Tester, You are subject to the terms of the Agreement. Skubana may discontinue the Beta Testing at any time in its sole discretion. The Services as provided during the Beta Test Period may not work the same way as a final version. Skubana may change or not release a final version of such Service in its sole discretion.
5.5 Confidential. The Services provided during the Beta Test Period and all materials relating thereto are Skubana’s Confidential Information.
6.1 Fee Payment. Fees and Additional Fees are due and payable per the terms of the Customer Agreement. If an automatic payment processing fails, Skubana may demand payment of the Fees, Additional Fees which are due, and any failed/returned payment fees, and temporarily disable the Customer’s access to the Technology, Service and/or Skubana Platform until full payment is made.
6.2 Fee Changes. In its sole discretion, Skubana reserves the right to modify its Fees in any manner (Customer to be advised by electronic communication, such as email), to be effective at the start of a Renewal Term. To avoid liability for any such modified Fees during a Renewal Term, Customer must timely terminate the Agreement prior to the commencement of the next Renewal Term in accordance with the procedures set forth Section 7.3 and 13.8 of these Terms and Conditions.
6.3 Effect of Breach. A failure to pay any Fees or Additional Fees when due is a material breach of this Agreement. If Customer fails to pay any Fees when due, then one hundred (100%) of the remaining balance due for the total of all Fees under the remaining Term of the Agreement shall immediately become due. This section shall survive termination of the Agreement.
7. TERM AND TERMINATION
7.1 Term. The Effective Date and Term of the Agreement is set forth in the Customer Agreement.
7.2 Termination for Cause.
(a) Termination by Customer for Cause. Customer may terminate this Agreement other than at the end of a Term upon written notice (which shall expressly state all of the reasons for the termination under this provision in adequate detail) to Skubana as follows: (i) if Skubana has materially breached the Agreement and Skubana has not cured the breach within thirty (30) days after written notice of the breach (provided, however, that where the Skubana is diligently pursuing the cure but cannot practicably cure within thirty (30) days, the foregoing will not apply so long Skubana has commenced pursuing the cure within thirty (30) days of such notice), (ii) as may be stated in a writing signed by both of the parties, and (iii) to the extent permitted by law, if the Skubana suffers an Insolvency Event.
(b) Termination by Skubana for Cause. Skubana may terminate this Agreement other than at the end of a Term upon written notice to the Customer (i) upon Customer’s failure to pay Fees or Additional Fees when due, (ii) upon Customer’s breach of Sections 2.2, 4, 8.2, 12.1, or 13 of these Terms and Conditions, or (iii) upon Customer’s material breach of any other provision of this Agreement.
7.3 Termination without Cause. Either party may terminate the Agreement, upon written notice, with or without cause, at least thirty (30) days before the end of the Initial Term or any Renewal Term, which shall be effective at the end of such Initial or Renewal Term.
7.4 Effect of Expiration or Termination. Upon expiration or termination of the Agreement, the License granted to Customer under this Agreement shall terminate immediately. The following sections of the Terms and Conditions survive its expiration or termination: 1.0, 2.3, 6 (solely to the extent that Fees are owed), 8 through 13 and any other provision or partial provision which by its nature would reasonably survive the termination of the Agreement including, but not limited to, the Non-Disclosure Agreement.
8. PARTIES’ REPRESENTATIONS AND WARRANTIES.
8.1 Skubana’s Warranty and Limitations. Skubana represents and warrants that:
(a) it has the right to provide the Service as contemplated under this Agreement and that the provision of the Service in accordance with the terms of this Agreement, does not and will not infringe any Intellectual Property rights of third parties in locations where the Services are provided. Upon Skubana’s determination, in its sole discretion, that the use of the Skubana Platform infringes upon the rights of any third party, Skubana may, at its sole discretion and own cost and expense and without further liability or obligation to Customer, either: (i) procure the right for Customer to continue to license the Skubana Platform, (ii) modify the Skubana Platform in such a way that the use thereof does not infringe on the rights of third parties, or (iii) terminate the Agreement by notice to Customer and refund any Fees paid in advance for the license to use the Skubana Platform during the remaining (on a pro rata basis) unused portion of the Term after the termination date, if any. Skubana shall have no liability or obligation with respect to any infringement claim if the infringement is caused by: (i) a modification made by Customer to an item, software, or Service supplied by Skubana or a modification made by Skubana at Customer’s request, (ii) use of the Skubana Platform in an application or environment, or other than as intended under the Agreement, (iii) Customer’s unauthorized use of the Skubana Platform, (iv) Skubana acting in accordance with Customer’s specifications or guidelines, or (v) the combination, operation or use of the Skubana Platform with other third party product(s) not supplied by Skubana.
(b) that the Service will operate and function substantially as described on the Website. Such warranty shall only apply if the applicable Service has been utilized by Customer in accordance with the Documentation, this Agreement, and applicable laws, rules and regulations, foreign law, treaties, and conventions. Such warranty is made to and for the benefit of Customer only. Customer’s sole and exclusive remedy for Skubana’s breach of this warranty shall be that Skubana shall use commercially reasonable efforts to modify the Services to achieve in all material respects the functionality described in the Agreement and, if Skubana is unable to restore such functionality, Customer shall be entitled to terminate this Agreement and receive a pro-rata refund of the Fees paid under the Agreement for the unused portion of the then current Term and Skubana shall have no further liability or obligations. Skubana shall have no obligation with respect to a warranty claim unless notified in writing of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent in accordance with this Agreement.
8.1.2 DISCLAIMER OF WARRANTIES BY SKUBANA. EXCEPT AS EXPLICITLY PROVIDED IN THE AGREEMENT, THE SERVICE (INCLUDING ANY SOFTWARE AND DOCUMENTATION), THE TECHNOLOGY, AND THE SKUBANA PLATFORM, IS PROVIDED HEREUNDER “AS IS” and “AS AVAILABLE.” SKUBANA MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE TECHNOLOGY, SERVICE, SKUBANA PLATFORM, OR SKUBANA MARKS. EXCEPT AS EXPLICITLY PROVIDED IN THE AGREEMENT, SKUBANA DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE TECHNOLOGY, SERVICE, SKUBANA PLATFORM, OR SKUBANA MARKS INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT THE TECHNOLOGY, SERVICE, OR SKUBANA PLATFORM, WILL OPERATE SECURELY, TIMELY, UNINTERRUPTED, DEFECT-FREE OR ERROR-FREE OR THAT THE TECHNOLOGY, SERVICE, OR SKUBANA PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE TECHNOLOGY, SERVICE, OR SKUBANA PLATFORM AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT CUSTOMER’S USE OF THE TECHNOLOGY, SERVICE, OR SKUBANA PLATFORM WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS, RULES AND REGULATIONS, FOREIGN LAW, TREATIES, AND CONVENTIONS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE TECHNOLOGY, SERVICE, OR SKUBANA PLATFORM ARE SUFFICIENT FOR CUSTOMER’S PURPOSES. SKUBANA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE TECHNOLOGY’S, SERVICE’S, OR SKUBANA PLATFORM’S LOCALIZATION TO A PARTICULAR MARKET INCLUDING WITHOUT LIMITATION LOCAL LANGUAGE, LOCAL SUPPORT OF TAXES, PAYMENT OR SHIPPING CARRIERS. SKUBANA MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH ANY MODULE OR FROM ANY NETWORK SITE, FLEX FEED DESTINATION, OR THIRD-PARTY INTERFACE.
8.2 Customer represents and warrants that:
(a) the Product Information and Customer Data (i) is owned (or validly licensed for all uses required under the Agreement) by Customer or is in the public domain, (ii) does not constitute defamation, libel, or obscenity, (iii) does not result in any consumer fraud, product liability, or breach of contract, or cause injury to any third party and (iv) does not contain, and will not introduce into the Technology, Service and/or the Skubana Platform, any viruses, Trojan horses, worms, spyware, time bombs or other forms of malware, malicious code or computer programming routines which may interfere with or disrupt the Services and/or Skubana Platform;
(b) it will comply with all applicable laws, rules and regulations, foreign law, treaties, and conventions as updated from time to time related to Customer’s performance of its obligations under the Agreement and activities that Customer undertakes in connection with its use of the Technology, Skubana Platform, and/or Services including without limitation those governing the online sale of goods and services, those governing anti-bribery and anti-corruption, including without limitation the U.K. Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act of 1977 (FCPA), respectively, and U.S. export controls and trade sanctions and economic embargoes; and
(c) it will not engage in the activities prohibited in this Agreement.
9. CUSTOMER LIABILITY, ASSUMED RISKS, AND SKUBANA LIABILITY
9.1 Except as otherwise expressly stated in this Agreement, Customer agrees to use the Service, the Technology and the Skubana Platform at Customer’s own risk. Skubana shall not be liable for any actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, admiralty or equity, unless expressly stated otherwise in the Agreement.
9.2 Skubana is not responsible for acts, services or content posted or provided by persons or entities other than Skubana, for Customer’s exposure to such content, or for actions Customer takes in reliance on that content. Skubana has no liability to Customer for failures based on services not provided by Skubana.
9.3 Customer is solely responsible for all selection of parties with whom Customer does business, and for terms and conditions of Customer’s agreements with those parties and with network sites and flex feed destinations.
9.4 Skubana has no responsibility for the quality or availability of goods or services provided by Customer, any of Customer’s customers’ ability to pay, any third party’s compliance with the terms of a transaction, or for any injury, loss or damage caused or alleged to have been caused by the goods or services sold by Customer through use of the Services, Technology, or Skubana Platform. Where the Skubana Platform or Website contains links to other sites and resources provided by third parties, these links are provided for information only and such links should not be interpreted as approval by Us of those linked websites, and Skubana shall have no responsibility for any use of such links.
9.5 Skubana shall not, under any circumstances, be liable for any loss, delay, or interception of Customer Data whether that be through general use, hacking or server failure, or any loss, corruption, hacking or failure of the daily backups or otherwise. Customer acknowledges that: (a) the technical processing and transmission of Customer Data is fundamentally necessary to use of the Service; (b) Customer Data will be subject to transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Skubana; and (c) Customer acknowledges that Customer Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means.
9.6 Skubana shall not be liable for any loss or damage caused by Customer’s failure to comply with the Security Obligation.
9.7 Customer is responsible for any breaches of its Security Obligations or of security that occur through Customer’s access or login credentials including as a result of Customer’s sharing such access or login credentials, or failure by Customer to adequately safeguard the same.
10. LIABILITY LIMITATIONS
UNDER NO CIRCUMSTANCES WILL SKUBANA BE LIABLE FOR: LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF CONTRACTS; LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE, OR CORRUPTION OF DATA, OR CONSEQUENTIAL OR INDIRECT LOSS OR SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, FOR THE AVOIDANCE OF DOUBT, WHERE SUCH LOSS OR DAMAGE IS ALSO OF A CATEGORY OF LOSS OR DAMAGE ALREADY LISTED), WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY ARISING OUT OF ANY BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR OTHER TERM, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, OTHER LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. SKUBANA IS NOT LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR THE FAILURE OF A PERSON TO ENTER INTO A TRANSACTION BY MEANS OF CUSTOMER’S USE OF THE SKUBANA PLATFORM, ANY MODULE (OR OTHER SOFTWARE LICENSED) OR THE SERVICES.
11. LIABILITY CAP
NOTWITHSTANDING THE FORM OR NATURE (E.G., CONTRACT, TORT, STATUTORY, COMMON LAW, DIRECT LIABILITY OR INDEMNIFICATION, INFRINGEMENT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT BY CUSTOMER OR THIRD PARTY, IN NO EVENT WILL SKUBANA BE LIABLE FOR DAMAGES, EXPENSES, COSTS, LIABILITIES, SUITS, CLAIMS, RESTITUTION OR LOSSES TO CUSTOMER AND/OR THIRD PARTIES, THAT EXCEED, IN THE AGGREGATE, ONE MILLION DOLLARS ($1,000,000) (“LIABILITY CAP”). Such Liability Cap is a maximum and shall not be used, control or be considered if: (i) Skubana’s liability or obligations are in amounts which would be or are below the Liability Cap either pursuant to this Agreement or otherwise or (ii) if Skubana has no liability either otherwise or pursuant to disclaimers in this Agreement including, but not limited to, sections 8.1.2, 9 and 10.
12.1 Customer’s Indemnification. Subject to Section 12.3 (Requirements of Indemnification), Customer shall indemnify, defend and hold harmless Skubana and its Representatives from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees), of whatever type or nature incurred by Skubana by reason of a third party claim or assertion brought against Skubana or its Representatives arising out of or related to: (a) Customer’s failure to comply with or breach of the Agreement, (b) Customer Data, Customer Marks, ad content, and Product Information or Customer’s products listed, supplied or sold, including without limitation Intellectual Property infringement claims and product liability claims, and/or (c) any negligence or willful misconduct of Customer or its Representatives.
12.2 Skubana Indemnification. Unless Skubana has no liability either otherwise or pursuant to disclaimers in this Agreement including, but not limited to, sections 8.1.2, 9 and 10 and subject to Section 12.3 (Requirements of Indemnification), Skubana shall indemnify, defend and hold harmless Customer and its Representatives in the aggregate lesser amount of (i) the Liability Cap, or (ii) Skubana’s liability or obligations which are in amounts which would be or are below the Liability Cap either pursuant to this Agreement or otherwise, from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) of whatever type or nature which are incurred by Customer by reason of a third party claim or assertion brought against Customer and/or its Representatives, arising out of or related to any gross negligence or willful misconduct of Skubana or its Representatives in the course of providing the Services to Customer.
12.3 Requirements of Indemnification. In order for the indemnification obligations of the indemnifying parties to apply, the indemnified parties must promptly provide the indemnifying party with notice in writing of any claim, promptly tender the control of the defense and settlement of any claim to the indemnifying party (at the indemnifying party’s expense and with indemnifying party’s choice of counsel), and cooperate fully with the indemnifying party (at the indemnifying party’s request and expense) in defending or settling the claim including without limitation providing any information or materials necessary for the defense. The indemnifying party shall only be liable to the indemnified party for the amount of damages as determined in a final, non-appealable order of a court of competent jurisdiction or paid by way of settlement, but the indemnifying party shall have no liability for any settlement made by an indemnified party without the indemnifying party’s prior written consent, which may not be unreasonably withheld. The indemnifying party will not enter into any settlement or compromise of any claim without the indemnified party’s prior consent if the settlement would require admission of fault or payment by the indemnified party.
13.1 Assignment. Customer may not assign the Agreement without Skubana’s prior written consent.
13.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create any joint venture, partnership, agency or employment relationship between the parties.
13.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or collateral negotiations, proposals, agreements and understandings, whether oral or written, relating to the subject matter of the Agreement. Any representation, warranty, course of dealing or trade usage not expressly stated in the Agreement shall not be binding. Except as otherwise stated in the Agreement, any amendments to the Agreement must be in writing and executed by the parties. To the extent the terms of a subsequent writing signed by the parties’ conflict with the terms of the Agreement, the terms of the subsequent writing control.
13.4 Severance. If any provision of the Agreement is held or made invalid or unenforceable for any reason, the invalidity will not affect the remainder of the Agreement and the severed provision shall be interpreted to be consistent with the Agreement.
13.5 No Waiver. The failure of either party at any time to enforce or require performance of any provision shall not waive or affect such party’s right to enforce any such provision at a later time.
13.6 Exhibits. All Exhibits, Schedules and other addenda referenced in the Agreement are incorporated into the Agreement by reference.
13.7 No Reliance. Each party represents and warrants to the other party that it is NOT relying on any promises, guarantees and/or assurances of the other party that are NOT otherwise expressly contained in the Agreement.
13.8 Notice. Except as otherwise explicitly provided in the Agreement, any notice required or permitted by the Agreement shall be in writing and deemed delivered if delivered (a) by personal delivery when delivered, (b) by overnight courier upon written verification of receipt, (c) by certified or registered mail, return receipt requested, upon verification of receipt, or (d) upon transmission via email to a properly addressed email address as provided in the Customer Agreement. Notices must be sent to the contacts and address in the Agreement, or any new address provided by the permitted notice methods.
13.9 Governing Law and Dispute Resolution. The laws of the State of New York, without regard to its conflicts of laws provisions, govern the Agreement. Each party irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the applicable courts located in New York, New York, for purposes of any action, suit or proceeding arising out of or relating to the Agreement THE CUSTOMER HEREBY WAIVES, AND COVENANTS THAT THE CUSTOMER WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE SUBJECT MATTER HEREOF OR ANY DOCUMENT RELATING HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR IN TORT OR OTHERWISE. THE CUSTOMER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING ALL THE TERMS OF THIS AGREEMENT, INCLUDING THIS SECTION, THAT IT FULLY UNDERSTANDS THE TERMS HEREOF, THE CONTENT AND EFFECT, AND THAT IT VOLUNTARILY AND KNOWINGLY AGREES TO THE TERMS HEREOF, AND THAT IN THE EVENT OF ANY AMBIGUITY IN THIS AGREEMENT, ANY PRESUMPTION THAT SUCH AMBIGUITY SHALL BE CONSTRUED AGAINST THE DRAFTER OF THE AGREEMENT SHALL NOT APPLY TO THIS AGREEMENT.
13.10 Force Majeure. Neither party shall be liable for failure to perform, or the delay in performance of, any of its obligations under the Agreement other than payment if, and to the extent that, the failure or delay is caused by events beyond its reasonable control including without limitation acts of the public enemy or governmental body in its sovereign or contractual capacity, war, fire, floods, strikes, epidemics, quarantine restrictions, unavailability of the Internet, civil unrest or riots, acts of terrorism, transportation delays, freight embargoes or unusually severe weather. The affected party shall use commercially reasonable efforts to avoid or remove the causes of non-performance or delay, and shall continue performance whenever the causes are removed.
13.11 Captions. Section headings are for reference purposes only and in no way affect the meaning or interpretation of the Agreement.