Terms of Professional Services

Skytap, Inc. Terms of Professional Services

Effective as of May 10, 2023

These are terms of professional services (“TOPS”). These TOPS apply to the professional services (“Professional Services”) that Skytap, Inc. (“Skytap”) provides to you (the “Customer”) under one or more written and duly executed statements of work (each an “SOW”) describing in detail the professional services provided to Customer for its own direct benefit of if Customer is a Skytap resale or integration partner, for the benefit of Customer’s end clients (“End User”). Each SOW together with the TOPS are the complete agreement between the Parties for the Professional Services (collectively, the “Agreement”). The terms “you,” “your,” and “yours,” also refers to Customer, including any authorized individual acting for the Customer under the applicable SOW.

The TOPS govern only Skytap providing Professional Services. Any hardware, software, and/or subscription services, including maintenance and support to be provided by Skytap to Customer shall be governed by a separate agreement.

Skytap and Customer may each be referred to in this Agreement as a “Party,” and collectively as the “Parties.”

1. Definitions.

(a) Customer Materials: Any materials that are the property of Customer (or its End Users), including, but not limited to, information or materials related to Customer or End User data, business process or procedures, designs, programs, flowcharts, documentation relating to information technology and any similar materials. Customer Materials also includes data, including all text, sound, software, image or video files that are provided to Skytap or its Affiliates by, or on behalf of, Customer and its Affiliates for use within the Skytap Cloud service (“Customer Data”).

(b) Skytap Materials: Any and all of Skytap’s proprietary materials, information and know-how, developed by Skytap and used by Skytap in the conduct of its business, including, by way of illustration but not limitation, technical information, plans, designs, templates, processes, methodologies, procedures, tools and software.

(c) Deliverables: Any and all work product or deliverables identified, delivered, created, or produced under or pursuant to the SOW, including, but not limited to, software, discoveries, inventions, data, findings, documents, plans, reports, designs, charts, graphs, procedures, methods, workflow processes, or materials of any kind in the performance of the Professional Services.

(d) Project: The tasks, deliverables, and associated delivery schedule for implementation of the Skytap Service for Customer or an End User as set forth in the SOW.

(e) Professional Services: All consulting, implementation, training, configuration, testing, development, or other professional services work to be done by Skytap for Customer in connection with the Project as further described on the SOW.

(f) SOW(s): One or more documents providing a Project-specific that plan work and Professional Services to be performed for the Project and under the SOW including a Project scope, the tasks to be performed by Skytap, the tasks to be performed by Customer (or its End User), the Deliverables to be delivered by Skytap, assumptions, a schedule according to which the tasks specified in the SOW will be completed, and the fees, payment schedule and anticipated expenses associated with the SOW.

(g) Onsite Visits: All Professional Services will be conducted remotely unless expressly set forth in the SOW. Skytap agrees to abide by Customer (or an End User’s) customary visitor’s written policies and procedures for all onsite visits as provided in advance to Skytap and its personnel. Skytap engages vendors to perform criminal background checks on all Skytap employees prior to employment; any additional checks Customer requires are in Skytap’s sole discretion and will be at the sole cost and expense of Customer.

(h) Other Contracts. Skytap may have other contracts covering other specific aspects of its relationship with Customer or End User (“Other Contracts”) that may include without limitation (i) subscription or other terms and conditions for Customer’s or an End User’s use of the Skytap Cloud Services; or (ii) data protection addendums for privacy and security, safety and control and processing of Personal Data, if applicable or required by law. Any SOW incorporating the TOPS is separate from and in addition to any Other Contracts.

(i) Personal Data. means any information relating to an identified or identifiable natural person that is subject to any applicable data protection or privacy law (e.g., EU GDPR, UK GDPR, CCPA/CPRA).

2. Professional Services.

(a) Skytap’s Obligation to Perform the Professional Services. Skytap will provide the Professional Services pursuant to the SOW incorporating these TOPS.

(b) Skytap’s Obligation to Provide Personnel. All personnel of Skytap provided under the SOW (including any subcontractors) will remain under the supervision, management, and control of Skytap.

(c) Preparation and Execution of SOW. To the extent that there is any conflict between these TOPS and the incorporating SOW, the terms of the SOW will control. Any changes to scope, assumptions, or obligations must be approved by both Parties using a Change Request described under the SOW.

(d) Non-Exclusive; Independent Development. Skytap will not be precluded by this Agreement from providing services or developing work products that are functionally comparable to or compete with, the services rendered, and Deliverables provided hereunder. subject to Skytap’s obligations of confidentiality and Customer’s proprietary rights, Skytap shall not be restricted in its use of ideas, concepts, know-how and techniques acquired or learned, or retained in the unaided memories of Skytap’s personnel in the course of providing any Professional Service, subject to Skytap intentionally breaching its obligations of confidentiality to Customer.

(e) Customer’s Obligations.

• (i) Customer Materials. Customer will promptly and timely deliver any Customer Materials required for the Professional Services and any Deliverables. Customer has all rights necessary to, and hereby grants Skytap a non-exclusive, non-transferable, royalty-free limited right and license to use, copy, modify and create derivative works of the Client Materials solely in connection with Skytap’s performance of the Professional Services.
• (ii) Customer Cooperation and Assistance. Customer will provide reasonable cooperation, information and assistance as agreed in the SOW or as reasonable for Skytap to perform the Professional Services. Skytap is not responsible for delays in the Project due to Customer’s failure or delay in assisting Skytap as required.

3. Fees and Expenses.

(a) Payment. Customer agrees to pay Skytap the fees in USD and pursuant to the SOW. Unless otherwise agreed in a SOW, Skytap will invoice and Customer will pay (i) fifty percent (50%) of the total fees for the Project upon execution of the SOW, and (ii) the remaining fifty percent (50%) of total fees for the Project upon completion. In the event Customer disputes a portion of an invoice reasonably and in good faith, Customer agrees to fully pay the undisputed portion, and Skytap’s acceptance of such partial payment will not waive any of its rights to the remaining balances or be an accord and satisfaction. Customer agrees to pay all fees when due regardless of any payment from an End User.

(b) Expenses. Customer will reimburse Skytap for the reasonable and customarily documented out-of-pocket expenses of its personnel incur providing the Professional Services. Skytap personnel traveling out-of-town will be reimbursed for coach class airfare, auto rental, lodging and reasonable and actual meal expenses. Skytap will invoice Customer each month for all reasonable and approved out-of-pocket expenses incurred during the previous month.

(c) Taxes. Unless expressly set forth under a SOW, all fees and rates thereunder are in USD. If owed under an SOW, Customer will pay all fees within 30 days of receipt of an invoice specifying the amounts due. All fees payable under this Agreement are exclusive of sales, use, VAT, customs duties, excise, and any other similar taxes. Skytap remains responsible, however, for any taxes on its net income.

4. Warranties.

(a) Customer Warranties. Customer represents and warrants that it has sufficient rights in the Customer Materials to allow Skytap to perform the activities contemplated herein, and such Customer Materials do not and will not infringe any third-party copyrights, trademarks, patents, or any other proprietary rights (including misappropriating any trade secrets).

(b) Skytap Warranties. Skytap represents and warrants the following.:

• (i) Skytap will perform the Professional Services and provide any Deliverables in a workmanlike and professional manner, and such Deliverables and Professional Services will conform materially to any written specification included with or incorporated into the applicable SOW. If Customer notifies Skytap in writing of a breach of any of the foregoing warranties within the later of fifteen (15) days following any acceptance under the SOW or thirty (30) days following expiration of the SOW, Skytap will promptly remedy such non-conformity at Skytap’s expense by re-performing the Professional Services or repairing or replacing the Deliverable, as applicable, to cause the Professional Services or Deliverable to conform to the warranties in this section.
• (ii) Skytap has used customary technology and processes to scan, detect and remove from the Deliverables, Skytap Materials, and any other software provided by Skytap any third party malicious program, virus, worm, trap door, back door, timer, or clock that would erase data or programming or otherwise cause them to become inoperable, inaccessible, or incapable of being used in accordance with the SOW.

(c) Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT WITH RESPECT TO THE PROJECT, THE PROFESSIONAL SERVICES OR THE DELIVERABLES.

5. Term.

Unless terminated in accordance with Section 6(a) below, the term of this Agreement commences on the Effective Date and continues until the later of (a) all Professional Services with Customer under an SOW have been completed; or (b) the termination date agreed in the SOW.

6. Termination.

(a) Termination. This Agreement may be terminated: (i) by either Party upon thirty (30) days written notice if the other Party materially breaches any of its obligations under this Agreement, such notice to be effective unless breaching Party cures said breach within the thirty (30) day period; or (ii) immediately by either Party if the other Party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding, is subject to the appointment of a receiver, or admits in writing its inability to pay its debts as they become due. Any right to terminate the Agreement without cause will be set forth in the applicable SOW.

(b) Effect of Termination. Upon termination and the payment of all outstanding fees due by Customer, Skytap shall promptly deliver to Customer all materials and information supplied by Customer in connection with the terminated Project, together with all Deliverables or work product in process at the effective date of termination.

7. Confidential Information.

(a) Confidential Information. During the term of this Agreement, either Party (for purposes of this section, the “Disclosing Party”) may disclose or cause to be disclosed, to the other Party (for purposes of this section, the “Receiving Party”) certain confidential information (“Confidential Information”). Confidential Information includes, but is not limited to, information or materials related to the Disclosing Party’s or related Parties’ respective business affairs and/or procedures, designs, programs, flowcharts, and documentation relating to information technology, whether or not owned by Disclosing Party or any of its related Parties, and all documents and information supplied by Disclosing Party marked confidential or which by the nature or type of information or manner of disclosure would reasonably indicate the proprietary or confidential nature thereof, including Personal Data and any other information related to the Professional Service. Unless subject to an exclusion in (b) below, Confidential Information for Customer includes Customer Material and for Skytap includes Skytap Materials. Receiving Party agrees to use Confidential Information solely in connection with the Service and not to disclose such Confidential Information to any third party, or make commercial use of such Confidential Information, except as permitted hereunder or as expressly consented to in advance in writing by Disclosing Party in its sole discretion, which consent may be withheld. Receiving Party agrees to take all precautions necessary to safeguard the Confidential Information, which is in its custody or control, which in no event will be less than reasonable care. Receiving Party will disclose the Confidential Information only to its employees and permitted contractors, agents and representatives who have reason to know such Confidential Information in the performance of the Services hereunder and who are bound by obligations of confidentiality no less protective of Disclosing Party’s rights than provided under this section.

(b) Exclusions. Confidential Information does not include information which (i) is or becomes publicly known through no wrongful act of the Receiving Party (except to the extent confidentiality and non-use obligations are required by applicable privacy regulations), (ii) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party, (iii) is rightfully received by Receiving Party from a third party who is authorized to make such disclosure, or (iv) is independently developed by Receiving Party without reliance upon any of Disclosing Party’s Confidential Information.

(c) Return or Destroy Confidential Information. Disclosing Party will have the right to request at any time and from time to time during the term of this Agreement, the return and/or destruction of Confidential Information and all copies, written descriptions or notes relating thereto. Receiving Party will as soon as practical following such request provide Disclosing Party with a certification that the Confidential Information has been returned and/or destroyed pursuant to Disclosing Party’s request.

(d) Legal Order. In the event that Receiving Party is subject to a court order, an order of a governmental or regulatory authority, or a similar process (a “Summons”) compelling disclosure or transfer of any Confidential Information, Receiving Party may disclose Confidential Information to the extent required by such Summons, provided that (i) Receiving Party immediately notifies Disclosing Party if legally permissible, so that Disclosing Party may seek a protective order, (ii) Receiving Party reasonably cooperates with Disclosing Party (at Disclosing Party’s expense) in seeking such protective order, (iii) if Disclosing Party cannot obtain a protective order, Receiving Party discloses only those portions of Confidential Information that in the reasonable opinion of its legal counsel are required to be disclosed, and (iv) all such Confidential Information required to be disclosed will remain subject to the obligations in this Agreement.

(e) Independent Development. Skytap will not be restricted in any way under any SOW from providing any services or developing works that are functionally comparable to or compete with any Customer products or services, and Skytap shall not be restricted in its use of ideas, concepts, know-how and techniques acquired or learned in the course of activities hereunder, or retained in the unaided memories of Skytap personnel, provided Skytap does not intentionally breach any confidentiality obligation to Customer in this Section 7.

8. Privacy.

(a) Processing of Personal Data; GDPR. Customer consents to the processing of Personal Data by Skytap, and its respective agents and subcontractors, as provided in this Agreement. Before providing Personal Data to Skytap, Customer will obtain all required consents from third parties (including Customer’s contacts, partners, distributors, administrators, and employees) under applicable privacy and data protection laws. To the extent Skytap is a processor or subprocessor of Personal Data subject to the GDPR, any such processing is subject to Skytap’s Data Processor Addendum (“DPA,” located at https://www.skytap.com/terms/data-protection-addendum/) and to the extent of any international transfers outside of the EU (or UK as applicable) of any Personal Data Skytap processes pursuant to this Agreement and for which Skytap is a data processor or data controller the Standard Contractual Clauses govern the same. Customer may request Skytap enter into the relevant Standard Contractual Clauses by emailing the request to skytapDPA@skytap.com. Skytap is a Service Provider under CCPA and CPRA, and the DPA also explains Skytap’s obligations necessary to maintain its status as a Service Provider.

(b) Privacy Policy. Skytap’s privacy policy (https://www.skytap.com/terms/privacy-policy/) provides further explanation of rights and Skytap’s duties regarding privacy and Personal Data/Information.

9. Indemnification.

(a) Mutual Defense and Indemnification. Each Party (“Indemnifying Party”) will defend and indemnify the other Party and its respective directors, officers, employees, representatives, agents and contractors (each an “Indemnified Party”) from and against all third party claims, liabilities, damages, losses and expenses (“Claims”) to the extent arising directly out of the Indemnifying Party’s (i) violation of any third parties’ intellectual property rights related to providing or using the Professional Services, (ii) violation of applicable law or regulation, (iii) negligent error or omission causing a data breach, or (iv) other grossly negligent or willful act or omission related to this Agreement. An Indemnifying Party is responsible under this Section 9(a) for the conduct of its employees or agents acting within the scope of their duties in connection with this Agreement. The foregoing right to defense and indemnification shall not apply to any Claims against Customer that would not have occurred but for the Customer’s (v) modification of the Deliverables or Professional Services; (vi) combination of the Professional Services with any service, Customer Material, third party software applications, or other technology product not provided by Skytap; or (vii) Customer’s failure to comply with the terms of this Agreement.

(b) Indemnification Procedures. The Indemnified Party shall (i) promptly give written notice of the claim to the Indemnifying Party, (ii) give the Indemnifying Party sole control of the defense and settlement of the claim (provided that the Indemnifying Party may not settle or defend any claim unless it unconditionally releases the Indemnified Party of all liability), and (iii) provides to the Indemnifying Party, at the Indemnifying Party’s cost, all reasonable assistance, at the Indemnifying party’s cost.

(c) This Section 9 states the Indemnifying party’s sole liability to, and the Indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.

10. Limitation of Liability.

A. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SKYTAP HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES) RESULTING FROM CUSTOMER’S USE OF THE PROFESSIONAL SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF ANY EXPRESS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. FOR THE AVOIDANCE OF ANY DOUBT, HOWEVER, THIS EXCLUSION DOES NOT APPLY TO ANY DAMAGES AWARDED TO A THIRD PARTY BY A COURT OF COMPETENT JURISDICTION IN A CLAIM FOR WHICH INDEMNITY IS PROVIDED UNDER SECTION 9 ABOVE.

B. A PARTY’S LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS CONTRACTUAL, NON-CONTRACTUAL, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SKYTAP UNDER THE APPLICABLE SOW EXCEPT WITH RESPECT TO A PARTY’S DEFENSE AND INDEMNITY OBLIGATIONS, WHICH SHALL NOT EXCEED THE GREATER OF THREE (3) TIMES THE AMOUNT PAID OR TO BE PAID BY CUSTOMER UNDER THE APPLICABLE SOW OR TWO HUNDRED THOUSAND UNITED STATES DOLLARS (USD$200,000.00).

C. NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT, NEITHER PARTY LIMITS OR EXCLUDES ITS LIABILITY WITH RESPECT TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

11. Relationship of Parties.

The Parties are independent contractors without authority to bind each other or to make any representations on behalf of the other Party. The Parties shall not be deemed to be partners or co-venturers.

12. Feedback.

By submitting ideas, suggestions or feedback regarding its each Party’s respective software service, the Parties agree that such items submitted do not contain confidential or proprietary information, and each Party hereby grants the other Party an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.

13. Prohibition Against Undue Influence.

Neither Party will use any payment or other benefit to offer, promise or pay any money, gift or any other thing of value to any person for the purpose of influencing official actions or decisions affecting this Agreement, while knowing or having reason to know that any portion will, directly or indirectly, be given, offered or promised to an employee, officer or other person acting in an official capacity for any government or agency or any political party, party official or candidate for political office. The Parties will at all times refrain from engaging in any illegal, unfair or deceptive trade practices or unethical business practices.

14. Force Majeure.

Neither Party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond such Party’s reasonable control. The affected Party will notify the other Party of such event and resume performance as soon as reasonably practicable.

15. Assignability.

Neither Party may assign its rights, duties, and obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that either Party may assign this Agreement without consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all such Party’s obligations under this Agreement.

16. Notices.

Except as otherwise expressly set forth in this Agreement, any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth below for Skytap, and at the address set forth on the most recent applicable Order Form for Customer and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this section. Notices sent within the U.S. are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier, and notices sent internationally are deemed given seven (7) business days following the date of mailing or four (4) business days following delivery to a courier. Skytap’s address for deliveries is: Skytap, Inc., Attn: Legal Department, 255 South King Street, Suite 800, Seattle, WA 98104, U.S.A.

17. General.

(a) Governing Law; Jurisdiction. (a) This Agreement is governed by the laws of the State of Washington, without regard to conflicts of law principles. Customer consents to the exclusive jurisdiction of the state and federal courts located in King County, Washington, U.S.A. to resolve any dispute, claim or controversy that arises in connection with this Agreement, except as described below.

(b) Dispute Resolution. Notwithstanding the above, before initiating any legal action or any formal method of dispute resolution relating to a dispute in connection with this Agreement, the Parties agree to work in good faith to resolve disputes and claims arising out of this Agreement. Either Party may request that each Party designate an officer or other management employee with settlement authority to meet to resolve the dispute or claim. If the dispute is not resolved within thirty (30) days from the commencement of efforts under this subsection, either Party may pursue formal dispute resolution or legal action. This subsection will not apply if expiration of the applicable time for bringing an action is imminent and will not prohibit a Party from pursuing injunctive or other equitable relief to which it may be entitled.

(c) Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Skytap must be sent to the address stated in the SOW. Notices to Customer will be sent to the individual at the address Customer identifies on the SOW. Skytap may send notices and other information to Customer by email or other electronic form. Notices to Skytap by email will be transmitted to legal@skytap.com.

18. Waiver.

The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future.

19. No Third-Party Beneficiaries.

Nothing in this Agreement shall be deemed or construed to create any third-party beneficiaries or otherwise give any third party any claim or right of action against any Party to this Agreement.

20. Entire Agreement, Amendments and Counterparts.

This Agreement constitutes the full and complete understanding and agreement of the Parties relating to the subject matter hereof and supersedes all prior understandings and agreements relating to such subject matter. Any waiver, modification, or amendment of any provision of this Agreement shall be effective only if in writing and signed by the Parties. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be original and all of which shall constitute the same instrument.

21. Severability.

If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Professional Services under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Professional Services will immediately terminate.

22. Survival.

The terms of this Agreement, including the applicable SOW, that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement including the applicable SOW, will survive termination or expiration, including all indemnity obligations and procedures.