Terms and Conditions
THESE TERMS OF SERVICE (THIS “AGREEMENT”) ARE AN AGREEMENT BETWEEN YOU (“YOU”) AND DKAC CORP. (“SKADCO”) AND SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH SKADCO AGREES TO GRANT YOU THE RIGHT TO ACCESS AND USE CERTAIN SKADCO PRODUCTS AND SERVICES.BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR PLACING AN ORDER (AS DEFINED IN SECTION 1 BELOW) THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE REFERENCES TO “YOU” AND “YOUR” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY.
Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, and your Order. For the purpose of this Agreement, an “Order” means an order for one or more SKADCO services placed by you and accepted by SKADCO.2. THE SERVICE.
2.1Access. SKADCO shall make available to you the SKADCO services identified in the Order, subject to the terms of this Agreement and any scope limitations set forth in the Order (the “Service”).
2.2 Restrictions and Conditions. You shall not, directly or indirectly: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service or access to data provided through the Service; (b) publicly publish, copy (except for internal use), duplicate or replicate the Service or any data provided through the Service; (c) scrape any data, content or intellectual property, or otherwise trespass or interfere with SKADCO's Service or systems; (d) "frame," "mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (e) allow access to the Service by multiple individuals impersonating a single end user; (f) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any SKADCO technologies, services, systems or other offerings, including data transmission, storage and backup; (g) use the Service for the purpose of developing a product or service that competes with the SKADCO online products and services; (h) circumvent or disable any security features or functionality associated with Service; or (i) use the Service in any manner prohibited by law.
2.3 Service Limitations. You agree and acknowledge that SKADCO Services may include errors or bugs that may result in erroneous information, including but not limited to, computations and calculations. You agree that SKADCO is not responsible or liable for any errors, bugs, malfunctions, or incomplete or erroneous information that may result from your use of SKADCO Services or from any related software or applications that are provided by SKADCO or a third party. You agree and acknowledge that any tax computation(s) that you generate or request from SKADCO Services may not be reliable and you should therefore always use a third party professional to calculate any and all taxes. You expressly agrees that SKADCO is not responsible or liable in any way to you for the accuracy of any tax computation or calculation of any kind that the you perform using SKADCO Services, any related software or applications. SKADCO is not liable for transactions or the outcome of transactions between you and any third party.3. YOUR Obligations.
3.1 Fees and Payment Terms. In consideration of the rights granted herein, you shall pay SKADCO the amounts specified in each applicable Order (“Fees”).
(a) Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to your execution of this Agreement or use of the Service (collectively, “Sales Taxes”). You shall be solely responsible for the payment of any Sales Taxes. In the event SKADCO is required to pay Sales Taxes on your behalf, you shall promptly reimburse SKADCO for all amounts paid.
(b) Unless otherwise specified in the applicable Order, all amounts shall be paid to SKADCO immediately upon the execution of the Order.
(c) Except as otherwise specified in this Agreement, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the scope of the subscription cannot be decreased during the relevant subscription term.
3.2 Compliance with Laws and Acceptable Use Policy. The SKADCO Service is of U.S. origin. You shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which you use the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. You will not upload any data or information to the Service for which you do not have full and unrestricted rights. You agree to adhere to SKADCO’s Acceptable Use Policy, available for review at http://www.skadco.com/TermsAndConditions, as updated by SKADCO from time to time (the “AUP”). SKADCO reserves the right to deny, suspend, terminate or revoke access to the SKADCO Services, in whole or in part, if SKADCO believes you are in breach of this Agreement or are otherwise using or accessing the SKADCO Services inconsistent with the terms and conditions of this Agreement or the AUP.
3.3 Feedback and Use of Data. You have no obligation to give SKADCO any suggestions, comments or other feedback (“Feedback”) relating to the Service or other current or potential SKADCO products or services. However, SKADCO may use and include any Feedback that you provide to improve the Service or other SKADCO products, services, software and technologies. Accordingly, if you provide Feedback, you grant SKADCO and its affiliates and subsidiaries a worldwide, non-exclusive, irrevocable, royalty-free, perpetual license to, directly or indirectly, use, reproduce, license, sublicense, distribute, make, have made, sell and otherwise commercialize the Feedback in the Service or other products, services, software and technologies. You further agree not to provide any Feedback that (a) you know is subject to any patent, copyright or other intellectual property claim or right of any third party or (b) is subject to license terms which seek to require any products incorporating or derived from such Feedback, or other SKADCO intellectual property, to be licensed to or otherwise shared with any third party.4. PROPRIETARY RIGHTS.
4.1 Reservation of Rights. All rights not expressly granted to you are reserved by SKADCO, its suppliers and licensors.
4.2 Ownership of Document. You will retain all right, title and interest to the content created by you through your use of the SKADCO Services, subject to any rights of SKADCO and its affiliates to elements provided by SKADCO and any associated Derivative Work or underlying documents, graphics, images, data or information related to the SKADCO Service.
4.3 Limited License to SKADCO. By submitting any content (including without limitation, any photograph, words, pictures, or symbols) or information to us in connection with your registration for and use of the Service, including your product listings, you grant us a license to use, copy, modify, create derivative works, publicly perform and distribute such content for the purpose of providing you with the Service, and for the purposes of improving SKADCO’s products and services. If you post content to public facing features of the Service, including as part of a page or product listing hosted by SKADCO, you grant us a perpetual, irrevocable, worldwide, non-exclusive, royalty-free license, sublicensable through multiple tiers, in all media now known or hereinafter created and for any purpose, license to use, copy, modify, create derivative works, publicly perform and distribute such content in connection with providing our products and services to you. You represent and warrant that you have sufficient rights to grant us the foregoing licenses. The foregoing licenses include any personality or publicity rights encompassed in such content, and you acknowledge we may use any such content to promote the Service. You must obtain consent and a release from any person (or the legal guardians of any persons) depicted in your content before you submit it to us, with full knowledge from these persons that we may use and publish the content in which they are depicted it in any manner whatsoever.
4.4 Responsibility for Content. You are solely responsible for any content that you submit, post or transmit via our Service. You may not post or submit any content that: (i) infringes the copyright, trademark, or other intellectual property rights of any person; (ii) is defamatory; (iii) contains nudity or sexually explicit content, or is otherwise obscene; (iv) may disparage any ethnic, racial, sexual, religious, or other group by stereotypical depiction or otherwise; (v) depicts or advocates the use of illicit drugs; (vi) makes use of offensive language or images; (vii) characterizes violence as acceptable, glamorous or desirable; (viii) provides a link to any other websites; or (ix) provides a phone number, email or other personal contact information. SKADCO has no obligation to process or post any specific content from you or anyone else. SKADCO may, in our sole and unfettered discretion, edit, remove or delete any content that you post or submit, including without limitation, if such content is judged by SKADCO to violate the foregoing restrictions or otherwise inappropriate for the Service.
4.5 Derivative Works. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by SKADCO and its affiliates and all right, title and interest in and to each such Derivative Work shall automatically vest in SKADCO and its affiliates. SKADCO and its affiliates shall have no obligation to grant you any right in any such Derivative Work. Title, ownership rights and intellectual property rights in and to the content accessed through the Services, such as a product catalog, are the property of SKADCO and the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives you no rights to such catalog or related content separate or independent of the Services.
5. term and termination. Unless otherwise specified in the Order, the initial term of this Agreement will begin on the Effective Date and shall continue thereafter until terminated by either party upon notice to the other. SKADCO, in its sole discretion, may terminate this Agreement and your Service with SKADCO, your password, and/or your account, and remove any content within the Service for any reason, including and without limitation, the lack of use, or if SKADCO believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service or the SKADCO AUP. SKADCO may also in its sole discretion and at any time discontinue providing the SKADCO Service, or any part thereof, with or without notice. You agree that any termination by SKADCO of access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that SKADCO may immediately deactivate or delete any content hosted on the Service, as applicable, and all related information and files. SKADCO reserves the right to bar any further access to such files or the SKADCO Service. You agree that SKADCO shall not be liable to it or any third-party for any termination of access to the SKADCO Service. Upon expiration or termination for any reason, you shall discontinue all use of the Service.
6. Indemnification. You shall indemnify and hold SKADCO, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with your use of the Service or breach of this Agreement. In the event SKADCO is required to seek legal remedies to enforce collection of any amounts due under this Agreement, you agree to reimburse for all additional costs associated with collection of that past due amount, including reimbursement of collection and attorney's fees.
7. WARRANTY/ LIABILITY/ TOTAL LIABILITY.
7.1 Warranties. Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.
7.2 Disclaimer. THE SERVICE AND ANY OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, “SERVICES”) AND ALL DATA PROVIDED IN CONNECTION WITH THE SERVICES ARE PROVIDED STRICTLY ON AN "AS IS" BASIS. SKADCO DOES NOT WARRANT THE COMPETENESS OR ACCURACY OF DATA PROVIDED, AND YOU SHOULD INDEPENDENTLY VERIFY SUCH INFORMATION. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SKADCO, ITS SUPPLIERS AND ITS LICENSORS.
7.3 Internet Risk. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS. SKADCO IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND SKADCO’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY SKADCO.
7.4 Limitation. YOUR EXCLUSIVE REMEDY AND SKADCO’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU, UP TO THE GREATER OF THE AGGREGATE AMOUNTS PAID BY YOU AND RECEIVED BY SKADCO HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM OR ONE HUNDRED US DOLLARS ($100). THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. YOU HEREBY RELEASE SKADCO, ITS SUPPLIERS AND LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT SKADCO’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.
7.5 Exclusion of Certain Damages and Limitations of Types of Liability. IN NO EVENT WILL SKADCO BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
8. Copyright Infringement. SKADCO respects the intellectual property rights of others, and ask you to do the same. It is our policy to terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been posted on the Service in a way that constitutes copyright infringement, please contact us at the address below and provide the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed, and identification of the time(s) and date(s) the material that you claim is infringing was displayed on the Service; (3) your address, telephone number, and email address; (4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
If you believe that your user content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your user content, you may send a counter-notice containing the following information to the copyright agent: (1) your physical or electronic signature; (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (4) your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in the Western District of Washington and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the copyright agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Our designated agent for notice of copyright infringement can be reached at: DKAC Corp. Attention: Copyright Notice, firstname.lastname@example.org.
9. Modifications to Agreement. Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that SKADCO may: (a) revise the terms and conditions of this Agreement; and/or (b) change part of the Services provided under this Agreement at any time. Any such revision or change will be binding and effective on you through your continued use of the SKADCO Services after any such revisions. You agree to periodically review notices posted on the Service, to be aware of any such revisions. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice. Notice of your termination will be effective on receipt and processing by us. By continuing to use SKADCO Services after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes.
10. General. This Agreement shall be governed by Washington law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in King County, Washington. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of SKADCO to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. Sections 1, 3, 4, 5, 6, 7, 8, 9 and 10 survive termination or expiration of this Agreement for any reason. If any part of this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate, except for those provisions noted above which will continue in full force and effect. This Agreement may not be transferred or assigned by you to any third party, including by operation of law, without SKADCO’s prior written consent. This Agreement, together with any applicable Orders comprises the entire agreement between you and SKADCO and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.