End User License Agreement
This End User License Agreement (“EULA”) is entered into and sets forth the legally binding terms between Optisense, Inc. (“SkyFi”) and the End User (as defined below), as an end user of the SkyFi iOS or Android application, the website located at https://www.skyfi.com/ (the “Website”) and the web application, products and services accessible thereon, and certain features, functionality, and content accessible on or through the application(s) and the Website (collectively, the “Services”).
The End User accepts and agrees to be bound by the terms of this EULA by doing any of the following:
accepting, in whole or in part, a quotation for the supply of the Product (as defined below);
signing this EULA;
accepting receipt or delivery of the Product;
accessing, downloading, installing, and/or manipulating the Services or any Product on any computer, tablet, mobile device, or electronic equipment;
making available any Derivative Work (as defined below);
damaging or destroying the Product; or
retaining the Product for more than 7 days following receipt thereof.
SkyFi may change or update this EULA at any time, and continuing to do any of (a) through (g) above constitutes End User’s acceptance of such changes and updates. End User’s access to and use of the Services will be subject to the current EULA which is posted on the Website at the time.
Article 1 Definitions
“Derivative Work” means any derivative product or information developed by the End User from the Product, which does not contain any imagery data from the Product and is irreversible and uncoupled from the source imagery data of the Product.
“End User” means either (i) the person (acting in his/her own name), (ii) the legal entity, including its possible offices and branches in its state or country of formation, or (iii) the government agency, branch or entity, which accepts this EULA. When the Product is supplied to a government agency, branch or entity (federal, state, municipal or local), the End User shall be deemed to be only that part which is located at the address to which the Product is billed when the order is placed.
“Product” means satellite imagery and data ordered, supplied and delivered to the End User using the SkyFi mobile app or web interface.
“Satellite Provider” means an operator and/or owner of satellite(s) providing satellite imagery which is delivered to the End User using the SkyFi mobile app or web interface.
“VAP” means any product developed by the End User, which contains imagery data from the Product, and resulting in a significant modification of the Product, through technical manipulations and/or addition of other data.
Article 2 License
2.1 Permitted Uses
The End User is hereby granted by SkyFi a limited, non-exclusive, non-transferable, and revocable license:
to install the Product on as many individual computers as needed in its premises, including internal computer network (with the express exclusion of the internet, except as provided under paragraph (f) below) for the permitted uses under paragraphs (b) to (h) below (the “Permitted Uses”);
to use the Product for its own internal purposes, provided that the End User shall not alter or remove any proprietary trademark or copyright marking incorporated in, marked on or affixed to any Product;
to alter or modify the Product to produce VAP or Derivative Work(s), provided that the End User shall not alter or remove any proprietary trademark or copyright marking incorporated in, marked on or affixed to any Product or VAP;
to use any VAP for its own internal needs, provided that the End User shall not alter or remove any proprietary trademark or copyright marking incorporated in, marked on or affixed to any Product or VAP;
to make available the Product and/or any VAP to contractors and consultants, only for use on behalf of the End User, provided that the End User shall not alter or remove any proprietary trademark or copyright marking incorporated in, marked on or affixed to any Product or VAP and subject to such contractors and consultants agreeing in writing (i) to be bound by the same limitations on use as applicable to the End User, and (ii) to return the Product and VAP to End User, and to keep no copy thereof, upon completion of the contracting or consulting engagement;
to post an extract of a Product or a VAP on an internet site, provided that the End User shall not alter or remove any proprietary trademark or copyright marking incorporated in, marked on or affixed to any Product or VAP. Such posting shall be used for promotion purposes only. In no event shall downloading of the posted extract be allowed, nor be used to distribute, sell, assign, dispose of, lease, sublicense or transfer such extract;
to print any extract of a Product or a VAP, and to distribute such print for promotion purposes only, provided that the End User shall not alter or remove any proprietary trademark or copyright marking incorporated in, marked on or affixed to any Product or VAP; and
to distribute Derivative Work(s).
All rights not expressly granted under the present Article 2.1 are hereby retained by SkyFi and/or Satellite Provider.
2.2 Prohibited Uses
The End User recognizes and agrees that the Product is and shall remain the property of SkyFi and/or Satellite Provider, contains proprietary information, and thus is provided to the End User on a confidential basis.
The End User shall not and shall not cause any contractor or consultant engaged pursuant to the provisions of Article 2.1(e) to do any of the following:
do anything not expressly authorized under Article 2.1;
portray any person depicted in the Product in a way that a reasonable person would find offensive, including in connection with pornography, the promotion of tobacco products, in a political context, and engaging in immoral or criminal activities;
use any Product in a defamatory or deceptive manner, or in a manner that could be considered libelous, obscene or illegal;
resell, redistribute, provide access to, share or transfer a Product except as explicitly provided for herein;
use any Product in a manner that infringes upon any third party’s intellectual property or proprietary rights, or would give rise to any claims of deceptive advertising or unfair competition; and/or
alter or remove any proprietary trademark or copyright marking incorporated in, marked on or affixed to any Product or VAP, or falsely represent that any Product was created by End User or a person other than Satellite Provider.
Article 3 Export Control
3.1 The End User will not make available, directly, indirectly, or retransfer the Product(s) to any person or entity that is (1) located in a country or region subject to embargo or similar restrictions under the U.S. Export Administration Regulations and economic sanctions administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), (2) listed on the U.S. Consolidated Screening List, (3) listed on the United Nations Security Council Consolidated List or (4) engaged in activities related to proliferation of nuclear, chemical or biological weapons or missiles. The End User certifies that it is not listed on the U.S. Consolidated Screening List, United Nations Security Council Consolidated List and is not owned 50 percent or more by one or more OFAC sanctioned parties. The End User will defend, indemnify, and hold harmless SkyFi and Satellite Provider from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by SkyFi or Satellite Provider as a result of any violation of such laws and regulations by the End User or any of End User’s employees, representatives, contractors or consultants.
3.2 The End User shall comply with all applicable international, national, state, regional, local laws and regulations in any of its dealings with respect to the Products, including, but not limited to any laws relating to the End User’s purchase of and access to the Products.
Article 4 Intellectual Property Rights
4.1. The satellite imagery data contained in the Product are the property of Satellite Provider, who retains all rights, title and interest in and to the Products, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to End User in this Agreement.
4.2. The Product is protected by the jurisdiction of the satellite operator and international copyright laws. Article 5 Warranty Liability
5.1. Satellite Provider has warranted to SkyFi that it has sufficient ownership rights in the Product to make the Product available to SkyFi and the End User under the terms hereof.
5.2. THE PRODUCTS ARE COMPLEX AND ARE PROVIDED “AS IS”; SKYFI DOES NOT WARRANT AND EXPRESSLY DISCLAIMS ANY WARRANTIES THAT THE PRODUCTS ARE FREE OF BUGS, ERRORS, DEFECTS OR OMISSIONS, OR THAT OPERATION OF THE PRODUCTS WILL BE ERROR FREE OR UNINTERRUPTED NOR THAT ALL NON-CONFORMITIES WILL OR CAN BE CORRECTED. SKYFI DOES NOT WARRANT AND EXPRESSLY DISCLAIMS ANY WARRANTIES THAT THE PRODUCTS SHALL MEET THE END USER’S REQUIREMENTS OR EXPECTATIONS OR SHALL BE FIT FOR THE END USER’S INTENDED PURPOSES. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF FITNESS OR MERCHANTABILITY GIVEN IN CONNECTION WITH THE SALE OR USE OF ANY PRODUCTS. SKYFI EXPRESLLY DISCLAIMS ALL OTHER WARRANTIES NOT EXPRESSLY PROVIDED IN ARTICLE 5.1. IN THE EVENT THE MEDIUM ON WHICH THE PRODUCTS OR SERVICES ARE SUPPLIED TO THE END USER ARE DEFICIENT, AS DEMONSTRATED BY THE END USER AND ACCEPTED BY SKYFI AND SATELLITE PROVIDER, SATELLITE PROVIDER SHALL REPLACE SAID MEDIUM. ANY SUCH CLAIM FOR REPLACEMENT SHALL BE SUBMITTED TO SKYFI WITHIN SEVEN (7) DAYS AFTER DELIVERY OF THE PRODUCT TO THE END USER.
5.3. SKYFI AND ITS AFFILIATES, AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (THE “SKYFI PARTIES”) PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF SKYFI PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL SKYFI PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED THE AMOUNT PAID BY END USER TO SKYFI FOR ACCESS TO THE SERVICES WITHIN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE.
5.4. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Article 6 Miscellaneous
6.1 This EULA shall continue for an unlimited term; provided however that SkyFi may, in addition to all other remedies to which it may be entitled under this EULA or at law, terminate this EULA immediately upon written notice to End User if the End User breaches any provision of this EULA. Such written notice shall be deemed valid when sent to the End User’s email address provided during the checkout process at the time the End User purchased the Product(s). The End User shall have no claim to a refund of any kind in the event of End User’s breach of this EULA. Upon termination, the End User shall return to SkyFi the Product(s) and any and all VAPs.
6.2 The End User may not transfer this EULA, or any part or obligation included therein, without SkyFi’s prior written consent.
6.3 In the event that any provision of this EULA is declared invalid or unenforceable, the remaining provisions of this EULA shall be applicable.
6.4 This EULA shall be governed by the laws of the State of Texas without regard to conflict of laws provisions. ANY DISPUTES ARISING UNDER OR RELATED TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN HARRIS COUNTY, TEXAS, AND THE PARTIES HERETO IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS.