The codeREADr Web site, Web Services and Reader Applications are products and services of Skycore LLC, hereinafter referred to as the "Products".
The following terms, when capitalized, will have the meanings designated in this Definitions section:
Access: An event in which a Registered User signs in to the codeREADr Web site to use Web Services or APIs or in which an Authorized User signs in to use the Reader Application.
Agreement: The Terms and Conditions of Use of the Products herein and as they may be amended by Skycore, and any guidelines, rules or operating policies that Skycore may establish and post on the Web site from time to time (collectively, the "Agreement").
API: An application programming interface implemented to enable Registered Users to interact with certain Web Services features via a software program.
Authorized User: A user of the Reader Application specifically authorized by a Registered User to log on with an assigned username and password.
Confidential Information: Any and all information disclosed by either party to the other that is marked "confidential" or "proprietary" including orally conveyed information designated confidential at the time of disclosure provided that it is reduced to a written summary marked "confidential" that is supplied to the other party within 30 days of the oral disclosure, pricing, terms, attachments, exhibits and all information related to the software associated with this Agreement. Confidential Information will be deemed to include Registered User Data. Confidential Information does not include any information that the receiving party can demonstrate is: (a) rightfully known prior to disclosure; (b) rightfully obtained from a third party authorized to make such a disclosure, without breach of the terms and conditions of this Agreement; (c) independently developed by the receiving party as demonstrated by contemporaneous documents; (d) available to the public without restrictions; (e) approved for disclosure with the prior written approval of the disclosing party; or (f) disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
Reader Application: The application residing on a mobile device used to communicate with the Web Services or APIs.
Registered User: The person who, on their own behalf or on the behalf an organization or other entity, logs in to their codeREADr Web Service account with a username and password and effectively becomes the administrator of such account and is responsible for payment of all Service Fees directly or through the organization or other entity they represent.
Registered User Data: Data stored on Skycore's servers provided by and stored on behalf of Registered Users or Authorized Users, such as data uploaded or entered manually to the Web Services and data scanned or passed from the Reader Application to the Web Services.
Service Fee: The fee paid by Registered Users pursuant to this Agreement and as specified in the Web Service 'Plans and Pricing' page.
Web Services: The services available to Registered Users after logging on to the codeREADr Web site or through an API to Access such services.
You: A Registered User
TERMS AND CONDITIONS OF USE
1.1 Access: Subject to the terms and conditions of this Agreement and payment of all Service Fees, if applicable, Skycore will provide you, a Registered User, with Access to the Web Services and your Authorized Users with Access to the Reader Application.
1.2 Scheduled Available Time: Skycore will take commercially reasonable efforts to make the Products available twenty-four (24) hours per day, seven (7) days a week, excluding:
1.2.1 Scheduled downtime for systems maintenance, including without limitation diagnostics, upgrades and operations reconfiguration.
1.2.2 Unscheduled downtime caused by forces beyond the immediate control of Skycore, hardware failures, or downtime caused by network or the Internet connection problems.
1.3 Terms and Conditions of Use: The Products are provided subject to the Terms and Conditions of Use herein and as they may be amended by Skycore and any guidelines, rules or operating policies that Skycore may establish and post from time to time (collectively, the "Agreement"). By posting updated versions of the Agreement on the this Web site, or otherwise providing notice, Skycore may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Products in its sole discretion. Except as otherwise provided herein, all such changes become effective upon posting of the revised Agreement on the codeREADr Web site.
1.4 Registration: The Products are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Products are not available to individuals under the age of 18. If you are using the Products in the capacity as an employee or agent, you must have the ability to bind your employer by your use of the Products. You must complete the registration form on the codeREADr Web site registration page in order to use the Products and provide true, accurate, current, and complete information.
1.5 Third Party Services: If you Access the Products through a third party service or Web site (a "Third Party Service"), you agree and acknowledge that Skycore is not responsible or liable for any actions of such third party or for any aspect or result of such Third Party Service. You use such Third Party Services at your own risk and agree and acknowledge that Skycore may terminate such Third Party Service's ability to interact with the Products at any time, with or without notice, and in Skycore's sole discretion, with no liability you or to the third party.
2.1 codeREADr Products: Subject to the terms of this Agreement, Skycore hereby grants to you a revocable, nonexclusive, worldwide, royalty free, limited license to Access the Web Services and for your Authorized Users to Access the Reader Application. Skycore reserves all rights and licenses in and to the Products not expressly granted to you under this Agreement.
2.2 License Restrictions: Unless otherwise provided for in this Agreement, you may not, nor permit any third party to: (a) copy the Products; (b) modify, translate or otherwise create derivative works of the Products; or (c) disassemble, decompile or reverse engineer the object code or source code of the Products.
2.3 Registered User Data: You hereby grant to Skycore a revocable, nonexclusive, worldwide, royalty free, limited license to Registered User's Data solely as necessary to perform the services for you as contemplated by this Agreement. To that end, Skycore may copy, modify, execute and backup such data as necessary to perform its duties under this Agreement. Skycore will treat such data as Confidential Information except as required by law.
2.3.1 You represent and warrant that you are the owner, agent or authorized licensee of all right, title and interest in and to any intellectual property, proprietary rights or other rights relating to Registered User Data and such data or use thereof is not harassing, defamatory, libelous, abusive, threatening, obscene, coercive, or objectionable, including material that is false, misleading, inaccurate or will violate any applicable law or regulation.
3. Intellectual Property
3.1 Skycore Intellectual Property: Skycore exclusively owns or has obtained licenses for all intellectual property rights, title and interest in any ideas, concepts, know-how, documentation or techniques Skycore provides under this Agreement, including all technology available on the Web Service and Reader Application. Client agrees and acknowledges that no title to any Intellectual Property embodied therein passes to Client under this Agreement. Client acknowledges that Skycore provides professional services for other parties and agrees that, subject to the terms of this Agreement, Skycore may carry on such services for Third Parties.
3.2 Client Intellectual Property: Client will exclusively own all intellectual property rights, title and interest in any Confidential Information Client provides under this Agreement, provided however that Client will not gain any ownership interest in the Web Service or Reader Application, which will at all times remain the property of Skycore. As between Skycore and Client, Client will exclusively own all intellectual property rights, title and interest in Registered User Data. Skycore acknowledges that no title to any Client intellectual property passes to Skycore under this Agreement. Skycore shall not obtain any right, title or license to Registered User Data by virtue of this Agreement, except a license to maintain and process such Registered User Data to the extent necessary to provide related Services, and Skycore shall not use or repurpose Registered User Data for other purposes.
4. Authorized Users
4.1 Authority and Responsibility: You acknowledge and agree that you have the sole right to authorize individuals or organizations to become your Authorized Users; that you shall be solely responsible for their downloading and use of the Reader Application under this Agreement; and that you will have advised and received agreement from such Authorized Users that that they will abide by the terms and conditions of this Agreement, where applicable, and specifically that Registered User Data may be received, stored or transmitted through the Reader Application on their device, including their device ID.
4.2 Password Allocation: You and Skycore will take commercially reasonable actions to maintain the confidentiality of and prevent the unauthorized use of each username and password. You will immediately notify Skycore in writing if you determine, or have reason to believe, that an unauthorized party has gained access to your username(s) and password(s). You authorize Skycore to rely upon any information and/or instructions set forth in any data transmission using your chosen username and password, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with the operation of Products. Use of username(s) or password(s), whether or not authorized by you, will be solely your responsibility and risk. You will indemnify, defend, and hold harmless Skycore from any claim, proceeding, loss or damages based upon any use, misuse, or unauthorized use of your username and password and your Authorized User's username(s) and password(s) unless such claim, proceeding, loss or damage is occasioned, in whole or in part, by any act or omission of Skycore.
5. Financial Obligations
5.1 Free Use: You may use the Web Services and Reader Applications without incurring Service Fees when using the Free Plan as detailed on the 'Plans and Pricing' page of the Web site.
5.2 Payments: You may chose to use one or more of the premium plans detailed on the 'Plans and Pricing' Web site page. The recurring Service Fee(s) for such plans are charged monthly in advance in US Dollars to your valid and approved credit card for the then-current monthly billing period. The overage Service Fee(s), as defined in your plan, are charged at the end of such billing period for usage exceeding your then-current plan. Having provided a credit card to begin payment of Services Fees, you hereby authorize Skycore to charge such credit card for such Service Fees, including recurring and overage fees, from the date you sign up for a premium plan and continuing until such time as you change your plan to a Free Plan or terminate your account.
5.3 Volume Accounts: For volume accounts, i.e. those generally exceeding $500 in billings per month, payment by check or wired funds may be accepted upon written request to and approval by Skycore and upon Skycore's approval of a credit application. Volume accounts may contact firstname.lastname@example.org.
5.4 Suspension of Service: If Skycore is for any reason unable to effect automatic payment via credit card or does not receive payment by check or wired funds within the agreed terms, Skycore will attempt to notify you via the email address on record and Access will be disabled until payment is received.
6. Confidential Information
6.1 Agreement Terms: Under no circumstances may either party disclose any special pricing or business terms related specifically to this Agreement, or any negotiations thereof, to any third party (including, but not limited to, competitors, industry analysts, press or media).
6.2 Obligation: Neither party will use any Confidential Information of the disclosing party except as expressly permitted in this Agreement or as expressly authorized in writing by the disclosing party. Each party will use the same degree of care to protect the disclosing party's Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither party is allowed to disclose the other party's Confidential Information to any person or entity other than the receiving party's officers, employees, consultants and legal advisors who need access to such Confidential Information to affect the intent of the Agreement. Each party agrees to notify the other of any unauthorized use or disclosure of Confidential Information and to provide reasonable assistance to such other party, and its licensors, in the investigation and prosecution of such unauthorized use or disclosure.
This Agreement may be terminated as follows:
7.1 Termination: You may terminate this Agreement at any time by logging in to the codeREADr Web site and terminating your account. There are no refunds for any fees paid. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT. SKYCORE IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT. ANY CREDIT CARD CHARGES AND SERVICE FEES INCURRED AS A RESULT OF SUCH FAILURE REMAIN YOUR RESPONSIBILITY.
7.2 Termination by Skycore: Skycore may terminate this Agreement, disable your account or put it on inactive status, in each case at any time with or without cause, and with or without notice. Skycore shall have no liability to you or any third party because of such termination or action. Notwithstanding the above, Skycore will act in good faith to you should such actions become necessary.
7.3 Registered Users Data: Skycore may delete your Registered User Data within 30 days after the date of termination. If your account is classified (at Skycore's sole discretion) as inactive for over 120 days, Skycore has the right to permanently delete such data stored on Skycore servers. Skycore will use good faith efforts to contact you via the email on record prior to taking any permanent removal actions.
8. Limitation of Liability
8.1 Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL SKYCORE OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "SKYCORE") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONETARY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF SKYCORE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, SKYCORE IS FOUND LIABLE TO ANY USER OF THE PRODUCTS FOR DAMAGES from ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF SKYCORE TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE PRODUCTS IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY SKYCORE TO YOU IN THAT TWELVE (12) MONTH PERIOD.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY IN THOSE JURISDICTIONS. REGARDLESS OF THE PREVIOUS SENTENCE, IF SKYCORE IS FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (A) THE TOTAL SERVICE FEES YOU PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, AND (B) $100.
9.1 Mutual Warranty: Each party warrants to each other that it has the right and authority to enter into, and to grant the rights and perform the obligations described in this Agreement.
9.2 Disclaimer: Skycore specifically does not warrant that the Products will meet all of your requirements, that the use of the Products will be uninterrupted or error-free, that patches or workarounds will be provided, or that errors will be corrected in Product updates. Skycore disclaims any and all liability resulting from or related to any breach of Internet security or disruption of Authorized User's connections to the Web Services or API.
9.3 Exclusive Warranty: THE ABOVE WARRANTY IS EXCLUSIVE. SKYCORE MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE TERMS OF THE PRODUCTS, OR ANY MATERIALS OR PRODUCTS FURNISHED OR PROVIDED TO YOU UNDER THIS AGREEMENT.
9.4 As-Is Basis: THE PRODUCTS ARE PROVIDED TO YOU UNDER THIS AGREEMENT ON AN "AS-IS" BASIS. SKYCORE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
10. Information Security
10.1 Skycore will employ, and shall require any third party contractors to employ security measures that include the implementation of reasonable and appropriate administrative, technical and physical safeguards to protect Registered User Data in Skycore’s possession or control against unauthorized access or loss.
10.2 Skycore agrees that Skycore has not, and will not introduce into the Services, and shall use up-to-date anti-virus software designed to prevent the introduction of any material which allows or causes the installation, transferring or in any way facilitating the installation or transfer of any malware including, without limitation, spyware, viruses, worms, rootkits, adware, keystroke loggers, dialers, time bombs or time locks, or bot software.
10.3 Skycore shall implement reasonable restrictions regarding physical and electronic access to information and Skycore systems, including, but not limited to, physical access controls, secure user authentication protocols, secure access control methods, firewall protection, malware protections, and use of encryption for information being transmitted across the public internet or wirelessly and as otherwise required by Privacy Laws and Regulations.
10.4 Skycore shall maintain a reasonable and appropriate written data security policy that includes technological, physical, administrative and procedural controls to protect the confidentiality, integrity and availability of information and Skycore systems that encompasses access, retention and transport of information and that provides for disciplinary action in the event of its violation.
10.5 Skycore shall prevent terminated employees from accessing information and Skycore systems by immediately terminating their physical and electronic access to such information.
10.6 Skycore shall employ assessment, monitoring and auditing procedures to ensure internal compliance with these safeguards.
10.7 Skycore shall conduct a complete assessment of these safeguards at least annually and, upon written request, provide a report, at the Clients expense if a report is not available, on the results of this assessment, including, but not limited to, any discrepancies to Client.
10.8 Neither party will use any Confidential Information of the disclosing party except as expressly permitted in this Agreement or as expressly authorized in writing by the disclosing party. Each party will use the same degree of care to protect the disclosing party's Confidential Information as it uses to protect its own Confidential Information of like nature, and in any event, no less than commercially reasonable efforts. Except as required by law, neither party is allowed to disclose the other party's Confidential Information to any person or entity other than the receiving party's officers, employees, consultants and legal advisors who need access to such Confidential Information to effect the intent of the Agreement, and a party shall be strictly liable for the unauthorized disclosure of the disclosing party’s Confidential Information. Each party agrees to notify the other of any known unauthorized use or disclosure of Confidential Information and to provide reasonable assistance to such other party, and its licensors, in the investigation and prosecution of such unauthorized use or disclosure.
11. Restricted Persons, Export of Services
11.1 Restrictions: You warrant you and your Authorized Users are not a 'Restricted Person'. For purposes of this Agreement, a Restricted Person is any officer, director, or controlling shareholder of the entity on behalf of which you are using the Products for (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) a designate on a Denied Persons List or Entity List by the U.S. Commerce Department; (4) designates engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) an entity owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify Skycore within twenty-four (24) hours, and Skycore shall have the right to terminate any further obligations, effective immediately and with no further liability, but without prejudice to your outstanding obligations to Skycore.
11.1.1 You agree to not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Products, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
12.1 Assignment: Neither party may assign any of its rights or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, without the prior express written consent of the other party. Assignment without such consent will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
12.2 Choice of Law: This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, with venue and jurisdiction in the state and federal courts located in Boston, Massachusetts.
12.3 Arbitration and Equitable Relief: The parties agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, will be settled by expedited arbitration to be held in the Commonwealth of Massachusetts in accordance with the rules of the American Arbitration Association then in effect. The arbitrator, who will be agreed to by the parties, may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator will be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court having jurisdiction. Skycore and you will each pay one-half of the costs and expenses of such arbitration, and each of the parties will separately pay its counsel fees and expenses. The prevailing party as determined by the arbitrator will be entitled to costs and fees associated with the action.
12.4 Independent Entities: The parties are independent entities. Neither party will be deemed to be an employee, agent, partner nor legal representative of the other for any purpose, and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other, solely as a result of this Agreement.
12.5 Severability: Any provision of this Agreement that is held to be unenforceable in any jurisdiction will be ineffective only as to that jurisdiction, and only to the extent of the unenforceability of such provision without invalidating the remaining provisions hereof.
12.6 Complete Understanding: This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
12.7 Survival. The respective rights and obligations under all sections of this Agreement that by their nature should survive termination will survive termination including, without limitation, ownership, warranty disclaimers and limitations of liability.