These Terms of Service apply to SKYVVA - a product of Apsara Consulting GmbH (the "Service") and form a legally binding contract between you, the end user, and Apsara Consulting GmbH registered in Munich ("APSARA").
1. Terms of Service. These Terms of Service govern your rights to use the Service. Unless explicitly stated otherwise, any new features that may be added to the Service shall be subject to these Terms of Service. Terms that are capitalized are defined in the body of these Terms of Service.
2. The Service. You are solely responsible for obtaining access to the Service, which may include payment of third-party fees (such as Internet service provider fees or Salesforce.com fees). In addition, you must provide and are solely responsible for all equipment that is necessary to access the Service, such as a home computer or your desktop computer in your office.
4. International Use. You acknowledge the global nature of the Internet and you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
5. Indemnity. You agree to indemnify and hold APSARA and its subsidiaries, affiliates, officers, directors, agents, employees, partners, independent contractors, and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of content you submit, post, transmit or otherwise make available through the Service, your use of the Service, your connection to the Service, your violation of these Terms of Service, or your violation of any rights of another person or entity.
6. DISCLAIMER OF WARRANTIES & DAMAGES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. EXCEPT AS SUCH DISCLAIMER MAY BE LIMITED BY APPLICABLE LAW OR AS OTHERWISE SET FORTH HEREIN, APSARA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EXCEPT AS SUCH DISCLAIMER MAY BE LIMITED BY APPLICABLE LAW OR AS OTHERWISE SET FORTH HEREIN, APSARA MAKES NO WARRANTY WITH RESPECT TO PERFORMANCE, SECURITY, CAPABILITY, CURRENTNESS, OR THAT
(i) THE SERVICE WILL MEET YOUR REQUIREMENTS;
(ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE;
(iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE;
(iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; OR
(v) ANY ERRORS IN THE APSARA TECHNOLOGY WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL, WHETHER CAUSED BY VIRUS OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL APSARA BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM APSARA OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
b. YOU ALSO ACKNOWLEDGE TO AND FOR THE BENEFIT OF APSARA THAT THE SERVICE IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, PHYSICAL OR ENVIRONMENTAL DAMAGE OR FINANCIAL LOSS, SUCH AS NUCLEAR FACILITIES OR AIR TRAFFIC CONTROL. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, APSARA SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS SUFFERED AS A RESULT OF SUCH A FAILURE OF THE SERVICE OR A BREACH OF SECURITY INVOLVING THE SERVICE, WHETHER OR NOT SUCH LOSS OR BREACH RESULTS FROM THE DELIBERATE, RECKLESS OR NEGLIGENT ACTS OF ANY PERSON OR MAY HAVE BEEN FORESEEABLE.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RELATED TO THE LOSS OF USE, DATA, BUSINESS OR PROFITS, GOODWILL, WORK STOPPAGE, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF THE OTHER PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING FROM AN ACTION OF CONTRACT, TORT, OR OTHER LEGAL THEORY. IN NO EVENT SHALL EITHER PARTY'S LIABILITY HEREUNDER EXCEED THE FEES PAID BY YOU DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE THAT THE APPLICABLE CLAIM ARISES. THIS LIMITATION ON DAMAGES SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY, DAMAGE TO TANGIBLE PROPERTY, BREACH OF CONFIDENTIALITY OR ANY LIABILITY INDEMNIFIED HEREUNDER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. APSARA Not Responsible for Storage of Content and Data. You acknowledge that Salesforce.com will store your content and other data used within the Service. Salesfoce.com may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that uploaded content will be retained by the Service following termination of an account and the maximum disk space that will be allotted on their servers on your behalf. You agree that APSARA has no responsibility or liability for the deletion or failure to store any content or data maintained by Salesforce.com in connection with the Service or otherwise.
9. Modifications of these Terms of Service and the Service Features. APSARA reserves the right to modify, add to, change or remove any part of these Terms of Service at any time, with notice to you. Notice will be delivered to the email address provided by you during the registration process and you agree to keep your information current and you consent to our sending such notifications of modifications to these Terms of Service to your email address. Except as outlined above, all changes to these Terms of Service will be effective when posted (after a notice is sent to your email address), and your continued use of the Service after the sending of such notice will constitute your acceptance of, and your agreement to be bound by, those changes. If you do not agree to (or cannot comply with) the Terms of Service as amended, your sole remedy is to stop using the Service. While APSARA may endeavor to notify you prior to making material changes to the Service, APSARA reserves the right to add, modify, discontinue, remove, or suspend temporarily, the Service (or any part thereof), including features and specifications of products described or depicted on the Service or the APSARA web site, at any time, with or without notice. You agree that APSARA shall not be liable to you or to any third party for any modification or temporary suspension of the Service.
10. APSARA's Intellectual Property.
a. All right, title, and interest in and to the Service and the APSARA Technology remains the property of APSARA. "APSARA Technology" means all of APSARA's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to you by APSARA in providing the Service. You agree to keep the APSARA Technology that is not publicly known confidential to yourself and not to disclose such information to others without APSARA's prior written approval.
b. Except as expressly authorized by APSARA, you agree not to (a) reproduce, modify, rent, lease, loan, sell, resell, distribute or create derivative works based on, the Service or the APSARA Technology, in whole or in part, or (b) access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes. APSARA grants you a personal, non-transferable and non-exclusive right to use the Service and the APSARA Technology solely for your own personal or internal business purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make the Service or the APSARA Technology available to any third party; (ii) modify or make derivative works based upon the Service or the APSARA Technology; or (iii) attempt to reverse compile or otherwise reverse engineer the APSARA Technology. You agree not to access the Service by any means other than those provided by APSARA for use in accessing the Service.
c. You cannot use any of the trademarks or protected copyright materials found on and within the Service except as specified herein, in accordance with applicable law, or without prior written permission of the owner. Any unauthorized use may violate copyright laws, trademark laws, the laws of privacy and publicity, and civil or criminal statutes. Nothing contained in the Service should be construed as granting by estoppel or otherwise, any license or right of use to any trademark.
11. Termination. You may terminate your use of the Service at any time. You agree that APSARA may terminate your use of the Service for any violation of these Terms of Service including, without limitation, failure to pay for the Service. Termination of your Service account includes (i) removal of access the Service, (ii) deletion by Salesforce.com of your files and content related to the Service; and (iii) barring of further use of the Service. Any termination shall be made in APSARA's sole discretion and APSARA shall not be liable to you or any third party for any termination of your account or your access to the Service or the deletion of your content.
12. Payment; Subscription Renewal. The Service is sold by subscription only. You are responsible for the payments for your account. Your credit card or other form of payment will be charged or otherwise debited annually. APSARA will store your payment information (e.g., credit card number) so that it can charge you for the service in accordance with your payment choice. Your subscription to the Service will be automatically renewed annually and you will be charged or invoiced unless you notify us at least 90 days prior to the renewal date that you do not wish to renew. Payment must be made on time to avoid a lapse in service. If you should desire to cancel the Service at any time, please contact APSARA Customer Service, who will terminate future automatic renewals and charges. Prior charges are not refundable. We may modify our fees for any automatic renewal term upon 30 days' prior written notice; provided, that any increase in fees noticed during an automatic renewal term shall not take effect until the beginning of the next automatic renewal term.
a. Each party understands and agrees that during the course of this Agreement information that is confidential or proprietary to one party ("Disclosing Party") may be disclosed to the other party ("Receiving Party") (including, without limitation, algorithms, computer programs, inventions, techniques, processes, methodologies, formulas, schematics, know-how, ideas, analysis and performance information, user documentation, internal documentation and the features, mode of operation or other details of products and services, product benchmarking results, technical processes, product designs, pricing and cost, other unpublished financial information, product and business plans, advertising revenues, advertising relationships, projections, and marketing data ("Confidential Information") . Confidential Information shall not include information that the Receiving Party can demonstrate (i) is part of the public domain through no fault of the Receiving Party; (ii) was lawfully known to the Receiving Party as of the time of its disclosure and is not subject to any restriction on disclosure, (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information as evidenced by written records, (iv) is subsequently learned from a third party not under a confidentiality obligation to the party providing such information, (v) is required by court order, provided that Receiving Party shall provide prompt prior written notice thereof to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
b. While this Agreement remains in effect and for three (3) years thereafter, the Receiving Party shall not disclose any of the Confidential Information of the Disclosing Party to anyone other than its employees who have a need to know in connection with this Agreement and who are bound in writing to confidentiality obligations at least as restrictive as the confidentiality obligations contained herein. Receiving Party agrees to promptly notify the Disclosing Party of any unauthorized disclosure of Confidential Information. Each party shall keep this Agreement and its terms and conditions confidential and shall not disclose this Agreement or its terms without first obtaining the written consent of the other party. The confidentiality obligations herein do not apply to the existence of this Agreement or the fact that the parties have executed this Agreement, but do apply to the specific terms of this Agreement. The Receiving Party shall notify its employees and contractors of its confidentiality obligations with respect to Disclosing Party's Confidential Information disclosed hereunder. Upon expiration or termination, all licenses granted hereunder shall immediately terminate, and the parties shall promptly return or destroy, with written certification all Confidential Information of the other party and any and all copies and derivatives thereof.
c. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
14. Publicity. APSARA may use your corporate logo on client lists in various forms (e.g., a printed list, an online list, etc.) and in other marketing materials, for the sole purpose of identifying you (or your employer, as the case may be) as a customer of APSARA. In any use of your logo, we will comply with any logo usage guidelines that you may provide and we will promptly fix any defect that you bring to our attention. APSARA may use your name, logo, website link, quote, and any other information that you may provide to develop case studies, press releases, and other marketing pieces in any form (e.g., print, audio, video, and other formats) that pertain to your use of APSARA products or services. APSARA may publish and freely distribute all such information, quote(s) or input. APSARA will never broadly publish your individual contact information (i.e., it will not appear on our customer list or in a case study) without your prior written consent. Your consent or approval, where required, will be deemed given if APSARA has tried to contact you by both telephone and email and you have not responded within 10 days. APSARA is not obligated to publish or otherwise use any information or logo that you may provide. The rights that you grant to APSARA are without any fee or royalty.
15. Miscellaneous Provisions.
a. Governing Law & Disputes. These Terms of Service shall be governed by the laws of Germany. The United Nations Convention on the International Sale of Goods shall have no application to this Agreement. In the event of any dispute relating to this Agreement, the parties agree to initially make a full and good faith attempt to resolve such dispute by negotiation at an executive level, to the extent reasonable under the circumstances, prior to commencing court proceedings. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered at the Arbitration Institute of the German Chamber of Commerce (IHK) in Munich.
b. Entire Agreement; Waiver. These Terms of Service contain the complete understanding between the parties with respect to the subject matter hereof, and supersede all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Service shall be of no effect. The failure or delay of APSARA to exercise any of its rights under these Terms of Service or upon any breach of these Terms of Service shall not be deemed a waiver of those rights or of the breach. No provision hereof shall be deemed waived or modified except in writing.
c. Survival. Sections 4 through 10 and 13 shall survive termination. If any provision of these Terms of Service is held invalid, the remainder of these Terms of Service will remain in full force and effect.
e. Relationship of the Parties. You and APSARA agree that you are not agents, partners or joint venturers, or and that these Terms of Service does not create any fiduciary duty or comparable relationship of trust between the parties.
f. Notice. APSARA may provide you with notices, including those regarding changes to these Terms of Service, by email or regular mail and APSARA may also post such changes on the Service. You shall send any notices to: Apsara Consulting GmbH.
Carl-Zeiss-Ring 11, 85737 Ismaning b. München.
g. No Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms of Service, there shall be no third-party beneficiaries to these Terms of Service.
h. Invalidity of Provision, Interpretation. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that effect should be given to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect.
i. Remedies. You agree that any unauthorized use of the Service or the APSARA Technology contained therein would result in irreparable injury to APSARA, for which money damages would be inadequate. Therefore, in such event APSARA shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you and to prevent any unauthorized use. Nothing contained in this Section or elsewhere in these Terms of Service shall be construed to limit remedies available pursuant to statutory or other claims that APSARA may have under separate legal authority. You understand and agree that your cancellation of your APSARA account is your sole right and remedy with respect to any dispute with APSARA.
j. Consulting Services. In addition to Subscriptions to the Service, you may purchase consulting, implementation or technical services provided by APSARA. For purposes of this Agreement, such Consulting Services are not included within the definition of the "Service." You can inquire about the purchase of Consulting Services by sending an email to email@example.com. If you and APSARA agree upon the Consulting Services that APSARA will provide, the details regarding those Consulting Services will be described more fully in a separate document signed by both parties ("Statement of Work"). Each Statement of Work, however, will be governed by and subject to the terms of this Agreement.
k. Taxes. You are wholly responsible for any taxes that may arise out of your use of the Service.
Last modified: June 2015