SkyCentral Product – License Agreement
Grant of Subscription License
ITSM Cloud Corporation dba SkyCentral Corporation (“Licensor”), a Utah corporation, hereby grants to the person or organization accepting this Subscription License, and those who lawfully use the software accepted by such person or organization, (“Licensee”) a non-exclusive, non-transferable and non-assignable subscription license to use this version of the computer software and associated user documentation which may accompany this Agreement (all referred to herein as the “Licensed Software”) in accordance with the terms and conditions of this Agreement. THIS SUBSCRIPTION LICENSE IS SUBJECT TO COLLECTION OF APPROPRIATE PAYMENT AND/OR REGISTRATION IN ACCORDANCE WITH YOUR SUBSCRIPTION AGREEMENT WITH LICENSOR OR LICENSOR’S AUTHORIZED DEALER/REPRESENTATIVE.
Scope of Permitted Use
You may only use the attached software for the number of designated users granted by this license in accordance with the terms of your subscription agreement. If the number of users of the software exceeds the licenses, you must have a reasonable process in place to assure that the number of persons using the software does not exceed the number of subscription licenses.
DISCLAIMER OF WARRANTY
Although Licensor has tested the software and reviewed the documentation, THE LICENSED SOFTWARE IS FURNISHED BY LICENSOR AND ACCEPTED BY LICENSEE “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. LICENSOR DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED SOFTWARE IS WITH LICENSEE. Some states do not allow the exclusion of implied warranties or liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. This warranty gives you specific legal rights, and you may also have other rights that vary from state to state.
LIMITATION OF LICENSOR LIABILITY
IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THE LICENSED SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL OPERATE TO RELIEVE LICENSOR FROM LIABILITY FOR ITS OWN WILLFUL OR WANTON RECKLESSNESS OR INTENTIONAL TORTS.
If any part of this software is delivered on physical medium and if you discover physical defects in the media, Licensor will replace the media or documentation at no charge to you, provided you return the item to be replaced with proof of payment to Licensor during the 90-day period after having taken delivery of the software. No Licensor dealer, representative, agent, or employee is authorized to make any modifications or additions to this limited warranty.
Proprietary Expression and Information
Licensor is the copyright owner of the Licensed Software, and the ideas, procedures, processes, systems, methods of operation, and concepts which are embodied within the Licensed Software and trade secret information of Licensor. This subscription license is not a sale of a copy of the Licensed Software and does not render Licensee the owner of a copy of the Licensed Software. Ownership of the Licensed Software and all components and copies thereof shall at all times remain with Licensor, regardless of who may be deemed the owner of the tangible media in or on which the Licensed Software may be copied, encoded or otherwise fixed.
Licensor may provide you with support services related to the Licensed Software (“Support Services”). Use of Support Services is governed by the Licensor policies and programs described in the user manual, in “online” documentation, and/or in other Licensor-provided materials. Any supplemental software code provided to you as part of the Support Services shall be considered part of the Licensed Software and subject to the terms and conditions of this subscription license agreement. With respect to technical information you provide to Licensor as part of the Support Services, Licensor may use such information for its business purposes, including for product support and development. Licensor will not utilize such technical information in a form that personally identifies you. Licensee acknowledges it will provide, at its own expense, software, hardware and support services for its own computer infrastructure, including, but not limited to, operating systems, networking (including Internet), browser, emailing, database and other similar 3rd party software / systems. Licensee also acknowledges that any software support, for Licensed Software, it may contract from Licensor does not include support for such infrastructure components.
Solicitation of Employment – – Before Payment is Made for its subscription to Licensed Software Licensee confirms genuine interest in evaluating and / or using Licensed Software, and agrees not to target, and not to suggest that others target, employees or contractors of Licensor as possible candidates for employment or contract work – – directly or indirectly. Furthermore, Licensee agrees not to solicit to or actually hire,
retain, contract with or engage the employment or services of any current employee or consultant of Licensor, except through Licensor, during the term of this agreement and for a period of twelve (12) months thereafter. Furthermore, Licensee hereby agrees, covenants and warrants that it shall not, during the term of this agreement and for a period of twelve (12) months thereafter, retain in any manner except through Licensor, either directly or indirectly (including through a 3rd party or consulting firm), the services of any of Licensor’s current employees or consultants.
Solicitation of Employment – – After Payment is Made for its subscription to Licensed Software Licensee agrees not to target, and not to suggest that others target, employees or contractors of Licensor as possible candidates for employment or contract work – – directly or indirectly. Furthermore, Licensee agrees not to solicit to or actually hire, retain, contract with or engage the employment or services of any current or former employee or consultant of Licensor, except through Licensor, during the term of this agreement and for a period of twelve (12) months thereafter. Furthermore, Licensee hereby agrees, covenants and warrants that it shall not, during the term of this agreement and for a period of twelve (12) months thereafter, retain in any manner, either except through Licensor directly or indirectly (including through a 3rd party or consulting firm), the services of any of Licensor’s current or former employees or consultants.
Restrictions Upon Duplication, Reverse Engineering and Disclosure
Any copy of the Licensed Software made by Licensee must bear the same copyright and other proprietary notices that appear on the copy furnished to Licensee by Licensor. Licensee will not disassemble, decompile, translate or otherwise attempt to “reverse engineer” the Licensed Software, nor shall Licensee permit any other person to do so. Licensee will make reasonable efforts to prevent any unauthorized copying of the Licensed Software or disclosure or use of Licensor’s trade secret information, and Licensee will advise Licensee’s employees who are permitted access to the Licensed Software of the restrictions upon duplication, reverse engineering, disclosure and use contained in this Agreement. Licensee will be liable for any unauthorized copying, reverse engineering and/or disclosure by Licensee’s employees or agents. Only with specific written permission (e.g., a Subscription License addendum) from an officer of Licensor may any party other than Licensor produce any derivative work based on the Licensed Software. Otherwise you may not produce any derivative work based on the Licensed Software.
Restriction upon Transfer
Licensee will not lease, rent, sell, distribute, pledge, assign, sublicense, sub-subscribe, loan or otherwise transfer to any third party any part of the Licensed Software or any copy thereof or any of Licensee’s rights under this Agreement.
This subscription license and your right to use this software automatically terminates if you fail to comply with any provision of this subscription license agreement. This subscription license and your right to use this software also automatically terminates if you fail to pay the applicable subscription license fees as stated in your subscription agreement with Licensor or Licensor’s authorized dealer/representative.
U.S. Government Restricted Rights
The Licensed Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) in The Rights in Technical Data and Computer Software Clause at DFARS 252.227-7013, or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable. Contractor/manufacturer is ITSM Cloud Corporation (dba SkyCentral Corporation), 563 West 500 South, Suite 400, Bountiful, Utah 84010.
The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
Severability and Choice of Law
Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect. This Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws of the United States of America and the state of Utah. Any action between Licensor and Licensee will be venued in a state or federal court situated within the state of Utah, and Licensee irrevocably submits to the personal jurisdiction of such courts for such purpose. In the event of litigation or arbitration, the prevailing party shall recover and be awarded all costs and expenses incurred in pursuing said litigation or arbitration, including all reasonable attorneys’ fees.
Assignment and Binding Effect
Licensor may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations to any person or entity. Licensee may not assign, delegate or otherwise transfer this Agreement or any of Licensee’s rights or obligations hereunder without the prior written consent of Licensor. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
This Agreement sets forth the entire agreement and understanding between Licensor and Licensee regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. This Agreement may not be modified or amended except by a writing signed by the party against whom the same is sought to be enforced.