Skoop grants the user of the Software (“Customer”) a limited, non-exclusive, non-transferable license to use the Software, solely for Customer’s own business purposes. “Software” means the specific version of Software operated and maintained by Skoop, accessible via its web site or another designated web site or IP address, or ancillary services rendered to Customer by Skoop, to which Customer is being granted access under this Agreement, including the Skoop SaaS Technology and the Content. Skoop will provide Customer with access to the Software through an approved browser interface. Skoop reserves all rights not expressly granted to Customer herein.
Customer shall not, without prior written approval by Skoop: (a) license, grant, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Software or the Content in any way; (b) reverse engineer or access the Software in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions, or graphics of the Software, or (iii) copy any ideas, features, functions, or graphics of the Software; (c) modify or make derivative works based upon the Software or the Content; or (d) create Internet “links” to the Software or “frame” or “mirror” any Content on any other server or wireless or Internet-based device. The right to use the Software cannot be shared or used by more than one individual User.
Skoop shall provide telephone or email support between the hours of 8:00 am to 5:00 pm, Eastern Time, Monday through Friday (excluding holidays) but Skoop has no obligation to provide Customer with hard-copy documentation, upgrades, enhancements, modifications, or other support unless specifically contracted for by Customer.
Customer is responsible for all activity occurring under Customer’s User accounts and shall abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with Customer’s use of the Software, including those related to data privacy, international communications, and the transmission of technical or personal data. Customer will: (a) notify Skoop immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (b) report to Skoop immediately and use reasonable efforts to stop immediately, any copying or distribution of Content that is known or suspected by Customer or any User; and (c) not impersonate another Skoop User or provide false identity information to gain access to or use the Software.
Customer will own any data, information, or material that Customer submits to the Software in the course of using the Software (“Client Data”). Customer, not Skoop, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data and Skoop shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Client Data. If this Agreement is terminated (other than by reason of Customer’s breach), Skoop will make available to Customer a file of the Client Data within thirty (30) days of termination if Customer so requests in writing and pays any outstanding balance and termination fee owing on the date of termination. Customer agrees and acknowledges that Skoop has no obligation to retain the Client Data, and may delete such Client Data, on the 31st day after termination. Skoop reserves the right to withhold, remove and/or discard Client Data, without notice, for any breach, including, without limitation, Customer’s non-payment. Upon termination for cause, Customer’s right to access or use Client Data immediately ceases and Skoop shall have no obligation to maintain or provide any Client Data
Skoop alone will own all right, title, and interest, including all related Intellectual Property Rights, in and to the Skoop SaaS Technology, the Content, and the Software and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Software. The Skoop name, the Skoop logo and the product names associated with the Software are trademarks of Skoop or third parties and no right or license is granted to use them. This Agreement is not a sale, but only a license to use and does not convey to Customer any rights of ownership in or related to the Software, the Skoop SaaS Technology, or the Intellectual Property Rights owned by Skoop. Customer acknowledges that, except as specifically provided under this Agreement, no other right, title, or interest in these items is granted.
Skoop will defend or, at its sole option, settle, at its own expense any suit, action or proceeding brought in a court of competent jurisdiction against Customer by a third party to the extent it is based on or arises out of a claim that any Software infringe any United States patent issued or any copyright or trade secret arising under the laws of any jurisdiction (an “IP Action”), and Skoop will pay damages finally awarded against Customer in such IP Action, or those monetary damages agreed to by Skoop and the claimant in a monetary settlement of such IP Action; provided that Skoop will be relieved of the foregoing obligations unless Customer: (a) gives Skoop prompt written notice of each such claim; (b) tenders to Skoop sole control of the defense or settlement of each such IP Action; and (c) cooperates with Skoop in defending or settling each such IP Action. If Skoop receives notice of an allegation that any Software infringe or misappropriates a third party’s intellectual property rights, or if Customer’s use of the Software are prohibited by permanent injunction of a court of competent jurisdiction as a result of such an infringement or misappropriation, Skoop may, at its sole option and expense: (a) procure for Customer the right to continue use such Software as provided hereunder; (b) modify the Software so that they are no longer infringing; or (c) replace the Software with other Software of equal or superior functional capability. If none of the foregoing is in Skoop’s reasonable determination commercially reasonable, Skoop will have the right to terminate any and all of the Software granted hereunder. If Skoop terminates as described above, Skoop will refund the applicable fees paid for such Software in advance. Notwithstanding anything set forth in this Section 8, no settlement that requires Customer to make any payments or does not fully release Customer must be approved by the Customer in writing prior to any agreement between Skoop and claimant.
Customer will pay all fees or charges under this Agreement. Any fees, charges, or billing terms not expressly set forth in this Agreement will be payable and due under the terms then in effect at the time a fee or charge is incurred. Skoop will issue an invoice to Customer in advance of the end of a billing period for payment of the recurring fees for the following billing period. Customer is responsible for paying all fees and charges ordered for the entire Term, without regard to whether all Users or Screens are active. Payment terms are described on the relevant Software Platform License Order Form. Payment for recurring charges is due prior to the beginning of the applicable month, unless mutually agreed upon otherwise in writing. All other fees and charges are due within ten days after receipt of an invoice from Skoop.
An Authorized Administrator may add additional Screens by notifying Skoop in writing or through the Software. Added Screens will be subject to the following: (a) the term of added Screens will be coterminous with the Term (either Initial Term or Renewal Term) of this Agreement; (b) the fee for the added Screens will be the then current, applicable fees at the time ordered; and (c) Screens added in the middle of a billing month will be charged in full for that billing month. Skoop reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to Customer, which notice may be provided by e-mail; provided however, that changes in the fees shall not be applicable to a current Screen until the end of the existing Term.
All fees and charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer will be responsible for payment of all such taxes, levies, or duties, excluding only federal or state taxes based solely on Skoop’s income.
Customer agrees to update its billing and account information within thirty (30) days of any change. That information includes Customer’s legal company name, street address, e-mail address and the name and telephone number of an authorized billing contact and Authorized Administrator. If the contact information Customer provides is false or fraudulent, Skoop reserves the right to immediately terminate Customer’s access to the Software, in addition to any other legal remedies.
If Customer believes that the fees or charges to Customer’s account are incorrect, Customer must contact Skoop in writing within forty-five (45) days of the date of the charge in question, or the fees and charges assessed by Skoop will be deemed to be correct and accepted by Customer.
In addition to any other rights of Skoop, Skoop reserves the right to suspend or terminate this Agreement and Customer’s access to the Software if Customer’s account becomes delinquent and remains delinquent thirty (30) days after written notice of such delinquency. Invoices and accounts that are delinquent are subject to interest of 1.5% per month (or the maximum permitted by law, whichever is less) on any delinquent balance, plus all expenses of collection. If Customer’s use of the Software is suspended but not terminated, Customer will be obligated for and agrees to pay the fees for the number of Screens for the balance of the full Term. Customer agrees that Skoop may charge any unpaid fees and charges to Customer’s credit card, initiate an ACH transaction or otherwise bill Customer for such unpaid fees and charges. Skoop reserves the right to impose a then current reconnection fee if Customer’s rights are suspended and Customer thereafter requests access to the Software. Customer agrees and acknowledges that Skoop has no obligation to retain Client Data and that such Client Data may be irretrievably deleted if Customer’s account is thirty (30) days or more delinquent. Customer acknowledges that suspension or non-payment will occur if a third party is paying the fees for such Customer’s access and such third party fails to make necessary payments.
Any breach of Customer’s payment obligations or any use of the Software contrary to the terms and conditions of this Agreement will be deemed a material breach of this Agreement. In such event Skoop may immediately terminate this Agreement and all Software access to Customer without further liability.
Skoop, in its sole discretion, may terminate Customer’s password, account or use of the Software if Customer breaches or otherwise fails to comply with this Agreement, or if Customer signage, in the sole judgment of Skoop, is deemed offensive, discriminatory or otherwise will harm the Skoop name, brand or reputation.
In the event Customer terminates this Agreement prior to expiration of the full initial term, Customer shall pay Skoop an early termination fee equal to 75% of the remaining contract balance due.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Skoop represents and warrants that it will provide the Software in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Software will perform substantially in accordance with Skoop’s specifications under normal use and circumstances. Customer represents and warrants that Customer has not falsely identified Customer or any User nor provided any false information to gain access to the Software and that Customer’s billing information is correct.
SKOOP MAKES NO REPRESENTATION, WARRANTY OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE OR ANY CONTENT. SKOOP DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SOFTWARE OR THE SERVER(S) THAT MAKE THE SOFTWARE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SOFTWARE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SKOOP.
SKOOP’S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF THE AMOUNTS ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY SUCH LIABILITY OR $100.00.
IN NO EVENT SHALL SKOOP BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SOFTWARE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SOFTWARE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
Customer on behalf of itself and its Users shall indemnify and hold Skoop, its licensors and their parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, causes of action, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) an allegation that use of the Client Data infringes the rights of, or has caused harm to, a third party; (b) violation by Customer of Customer’s representations and warranties; or (c) the breach by Customer or any User(s) of the terms of this Agreement, provided in any such case, that Skoop (d) gives written notice of the claim promptly to Customer; (e) gives Customer sole control of the defense and settlement of the claim (except Customer may not settle any claim, without Skoop’s consent, unless Customer unconditionally releases Skoop of all liability and such settlement does not affect Skoop’s business or Software,); (f) provides to Customer all available information and assistance; and (g) has not compromised or settled such claim.
Skoop may give notice by means of a general notice on the Software, electronic mail to Customer’s e-mail address on record in Skoop’s account information or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Skoop’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
Skoop reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software at any time, effective upon posting of an updated version of this Agreement on its web site. Customer is responsible for regularly reviewing this Agreement. Continued use of the Software after any such changes shall constitute Customer’s consent to such changes.
This Agreement may not be assigned by Customer without the prior written approval of Skoop but may be assigned without Customer’s consent by Skoop to (a) a parent or subsidiary, (b) an acquirer of assets, or (c) a successor by merger. Any purported assignment in violation of this Section shall be void.
Customer agrees that Skoop may release Customer’s name, logo, contact information, and identify Customer as a customer of Skoop. Skoop may reproduce Customer’s logo on Skoop’s website for this purpose. If at any time Customer does not believe it can provide positive references for Skoop, Customer will notify Skoop in writing.
This Agreement shall be governed by Michigan law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Software shall be subject to the exclusive jurisdiction of the state and federal courts located in Ingham County, Michigan. The prevailing party in such action shall be awarded its reasonable attorney fees and costs. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer or any User and Skoop as a result of this Agreement or use of the Software. The failure of Skoop to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Skoop in writing. This Agreement, together with exhibits, comprises the entire agreement between Customer and Skoop and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
As used in this Agreement the following terms are defined as follows: “Authorized Administrator(s)” means the person(s) designated by Customer to create User and Site accounts and otherwise administer Customer’s use of the Software. “Content” means the audio and visual information, documents, software, products and services contained or made available to Customer under this Agreement in the course of using the Software. “Skoop Technology” means all of Skoop’s proprietary technology (including software, hardware, source code, products, business concepts, programs, processes, logic algorithms, graphical user interfaces (GUI), techniques, designs and other tangible or intangible technical material or information) made available to Customer by Skoop in providing the Software, including the Enterprisewide Integrated Management System (“Software”). “Intellectual Property Rights” means all rights, title and interest in and to the Skoop SaaS Technology, the Content, and all copyrights, patents, trade secrets, trademarks, service marks or other intellectual property or proprietary rights and any corrections, bug fixes, enhancements, updates, releases, or other modifications, including custom modifications made by Skoop relating thereto, and the media on which same are furnished. “Screen” – means both a physical and digital sign or banner display.“Site” means the website located at https:Skoop.digital. For the Skoop App it shall be app.skoop.digital “User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized under this Agreement to use the Software and who have been supplied User identifications and passwords by the Authorized Administrator (or by Skoop at Authorized Administrator’s request). Customer is responsible for a User’s compliance with the terms of this Agreement. If specifically identified in this Agreement, Customer suppliers may be provided access to specific modules and will be considered Users.