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Skyelarke Platform Terms of Use

Version: 1
Effective Date: 31st March 2023
Last Reviewed: First Issue

By accessing, browsing or otherwise using our platform (the “Platform”) you agree to be bound by these terms of use.

ABOUT US

Our Website and Platform are controlled and operated by SKYELARKE TECHNOLOGIES LIMITED. and its affiliates. SKYELARKE TECHNOLOGIES LIMITED is a limited company registered in England and Wales. Our registered office address is: Dykes, Henfield Common, North Henfield, West Sussex, United Kingdom, BN5 9RL. UK Company registration number: 14340375.

HOW TO CONTACT US

You can contact us by email at info@skyelarke.com if you have any questions, comments or complaints about our Platform.

BY USING OUR PLATFORM YOU ACCEPT THESE TERMS

By using our Platform, you confirm that you accept these terms of use and that you agree to comply with them.

If you do not agree to these terms, you must not use our Platform.

THERE ARE OTHER TERMS THAT MAY APPLY TO YOU

These terms of use refer to the following additional terms, which also apply to your use of our Website and the Platform:

  • Our Privacy Notice, which sets out the terms on which we process any personal data we collect from you, or that you provide to us. By using our Website and the Platform, you consent to such processing and you warrant that all data provided by you is accurate. Please note that they may be other privacy information that are more specific and relevant to you and for more information you can contact our Data Protection Officer at privacy@skyelarke.com
  • Our Cookie Policy, which sets out information about the cookies on our Websites.

CHANGES TO THESE TERMS OF USE

We keep these terms of use under review and make amendments from time to time. Every time you wish to use our Platform, please check these terms of use to ensure you understand the terms that apply at that time.  Any changes will be effective immediately upon posting to our Website and your continued access, browsing or other use of our Website and the Platform constitute your agreement to all such terms of use.

TERMS OF USE

Unless otherwise defined herein, capitalized terms found in these Skyelarke Platform Terms of Use (“Terms of Use”) shall have meanings ascribed to them in the Master Services Agreement.

  1. SECTION 1. DEFINITIONS
    1. “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Skyelarke Platform.
    2. “Authorized User(s)” means Client’s employees, consultants, contractors, subcontractors and agents, and employees, consultants, contractors, subcontractors and agents of clinical research sites contracted with Client who are authorized by Client to access and use the Skyelarke Platform under the rights granted to Client in these Terms of Use and for whom access to the Skyelarke Platform has been purchased in a Work Order under the Agreement and Skyelarke Technologies has provided Access Credentials.
    3. “Client’s Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Client or an Authorized User by or through the Skyelarke Platform. For the avoidance of doubt, Client Data does not include Resultant Data or any other information reflecting the access or use of the Skyelarke Platform by or on behalf of Client or any Authorized User.
    4. “Client’s Systems” means the Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party services.
    5. “Documentation” means any manuals, instructions, or other documents or materials that Skyelarke Technologies provides or makes available to Client in any form or medium and which describe the functionality, components, features, or requirements of the Skyelarke Platform, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof, including these Terms of Use and the Service Level Agreement attached as Exhibit F of the Agreement.
    6. “Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Skyelarke or its designee to disable Client’s or any Authorized User’s access to or use of the Skyelarke Platform automatically with the passage of time or under the positive control of Skyelarke Technologies or its designee.
    7. “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent Client or any Authorized User from accessing or using the Skyelarke Platform or Skyelarke Technologies’ Systems as intended by these Terms of Use. Harmful Code does not include any Disabling Device.
    8. “Skyelarke Technologies Materials” means Specifications, Documentation, and Skyelarke Technologies’ Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Skyelarke Technologies or any Subcontractor in connection with the Skyelarke Platform or otherwise comprise or relate to the Skyelarke Platform or Skyelarke Technologies’ Systems. For the avoidance of doubt, Skyelarke Technologies’ Materials include Resultant Data and any information, data, or other content derived from Skyelarke Technologies’ monitoring of Client’s access to or use of the Skyelarke Platform, but do not include Client Data.
    9. “Skyelarke Technologies Personnel” means all individuals involved making the Skyelarke Platform available as employees, agents, contractors or subcontractors of Skyelarke Technologies.
    10. “Skyelarke Technology Systems” means the information technology infrastructure used by or on behalf of Skyelarke in providing the Skyelarke Platform, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by or through the use of third-party services.
    11. “Process” means to take any action or perform any operation or set of operations that the Skyelarke Platform are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
    12. “Resultant Data” means data and information related to Client’s use of the Skyelarke Platform that is used by Skyelarke Technologies in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Skyelarke Platform.
    13. “Specifications” means the specifications for the Skyelarke Platform set forth in the applicable Work Order and to the extent consistent with and not limiting of the foregoing, the Documentation.
    14. “Access Fees” The access fee Client pays to Skyelarke Technologies for site configuration when a site is active on the Skyelarke Platform and the licence fee for access by Authorized Users’ to the Skyelarke Platform.
    15. “Transaction Fee” The transaction fee Client pays to Skyelarke Technologies for each occasion a payment is made to the patient.
    16. “Exchange Fee” The fee a Client pays for Service Provider to pay a patient outside the contracted currency on a transaction.
    17. “Setup/Startup Fee” The initial fee to cover setup/startup and configuration for the Client.
    18. “Funding Fee” The fee from Client to cover payments to the patient.
    19. “Third-Party Items” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Skyelarke Platform that are not proprietary to Skyelarke Technologies.
    20. “WE/US/OUR” means Skyelarke
    21. “YOU/YOUR/YOURS” means the Client.
  2. SECTION 2. PLATFORM ACCESS
    1. Access and Use. Subject to the terms and conditions of these Terms of Use, Skyelarke Technologies grants a limited, non-exclusive, non-transferable, revocable, right to Client for Client and its Authorized Users to access and use the Skyelarke Platform, during the term of the relevant Work Order where such access and use has been purchased, for Client’s internal purposes outlined in Section 2.2 below.
    2. Client and Authorized User Access. Client and Authorized Users shall be limited to those individuals requiring access to the Skyelarke Platform solely to facilitate Client’s reimbursement of patient expenses or other offering agreed to by the parties under an applicable Work Order. The total number of Authorized Users will not exceed the number set forth in the applicable Work Order, except as expressly agreed to by the parties in writing. Where the number of Authorized Users is increased, the corresponding increase in fees associated with adding additional Authorized Users will be invoiced to Client. Client is responsible for maintaining the confidentiality of Access Credentials. Client is responsible for Authorized Users’ use of the Skyelarke Platform and any act or omission of such individuals shall be deemed to be Client’s act or omission. Access Credentials are intended to be for a single user.
    3. Service and System Control. The Skyelarke Platform is provided solely as a service and neither Client nor any Authorized User is provided with any license rights in or any other right to the Skyelarke Platform under the Agreement, including these Terms of Use. Skyelarke Technologies has and will retain sole control over the operation, provision, maintenance, and management of the Skyelarke Platform and Skyelarke Technologies Materials. Client has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the Client Materials by any person by or through the Client Systems or any other means controlled by Client or any Authorized User.
    4. Changes to Skyelarke Platform. Skyelarke Technologies reserves the right to at any time and in its sole discretion make any changes to the Skyelarke Platform and Skyelarke Technologies Materials for any reason, provided that the change does not materially adversely alter the standard of service or capabilities of the Skyelarke Platform. As between Skyelarke Technologies and Client, any subsequent upgrade, enhancement, or other change to the Skyelarke Platform shall be Skyelarke Technologies’ property and subject to these Terms of Use.
  3. SECTION 3. USE RESRICTIONS; SERVICE USAGE AND DATA STORAGE
    1. Use Restrictions. Client shall not, and shall not permit any other person to, access or use the Skyelarke Platform or Skyelarke Technologies Materials except as expressly permitted by these Terms of Use and, in the case of Third-Party Materials, the applicable third-party license agreement. Without limiting the generality of the foregoing, Client shall not, except as these Terms of Use expressly permits:
      1. copy, modify, or create derivative works or improvements of the Skyelarke Platform or Skyelarke Technologies Materials;
      2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Skyelarke Platform or Skyelarke Technologies Materials to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
      3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Skyelarke Platform or Skyelarke Technologies Materials, in whole or in part;
      4. bypass or breach any security device or protection used by the Skyelarke Platform or Skyelarke Technologies Materials or access or use the Skyelarke Platform or Skyelarke Technologies Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
      5. input, upload, transmit, or otherwise provide to or through the Skyelarke Platform or Skyelarke Technologies Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
      6. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Skyelarke Platform, Skyelarke Technologies Systems, or Skyelarke Technologies’ provision of services to any third party, in whole or in part;
      7. remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Skyelarke Platform or Skyelarke Technologies Materials, including any copy thereof;
      8. access or use the Skyelarke Platform or Skyelarke Technologies Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Skyelarke Technologies’ Intellectual Property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Skyelarke Technologies’ customer), or that violates any applicable law;
      9. access or use the Skyelarke Platform or Skyelarke Technologies Materials for purposes of competitive analysis of the Skyelarke Platform or Skyelarke Technologies Materials, the development, provision, or use of a competing software service or product or any other purpose that is to Skyelarke Technologies’ detriment or commercial disadvantage;
      10. access or use the Skyelarke Platform or Skyelarke Technologies Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Skyelarke Platform could lead to personal injury or severe physical or property damage; or
      11. otherwise access or use the Skyelarke Platform or Skyelarke Technologies Materials beyond the scope of the authorization granted in these Terms of Use.
    2. Suspension or Termination of the Skyelarke Platform. Skyelarke Technologies may, directly or indirectly, and by use of a Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Client’s, any Authorized Users, or any other person’s access to or use of all or any part of the Skyelarke Platform or Skyelarke Technologies Materials, without incurring any resulting obligation or liability, if:
      1. Skyelarke Technologies receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Skyelarke Technologies to do so; or
      2. Skyelarke Technologies believes, in its good faith and reasonable/sole discretion, that: (i) Client or any Authorized User has failed to comply with any material term of these Terms of Use, or accessed or used the Skyelarke Platform beyond the scope of the rights granted or for a purpose not authorized under these Terms of Use or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Skyelarke Platform; or (iii) the relevant Work Order wherein Client purchased the access to the Skyelarke Platform expires or is terminated. This Section 3.2 does not limit any of Skyelarke Technologies’ other rights or remedies, whether at law, in equity, or under the Agreement, including these Terms of Use.
    3. Third Party Items. If Third Party Items are included in the Skyelarke Platform (e.g. third party card payment provider “B4B”), Client must comply with Third Party Item terms and conditions. Client’s right to use such Third Party Item will for all purposes be governed by the terms and conditions for such Third Party Items which shall be provided by Skyelarke Technologies to Client upon Client’s request. For purposes of clarity, in no event shall such terms and conditions be deemed Documentation. Unless otherwise agreed in writing, Client’s use of such Third Party Items shall terminate on the earlier of expiration or termination of (i) the relevant Work Order under the Agreement or (ii) the applicable agreement between Skyelarke Technologies and the third party offering the Third Party Items.
  4. SECTION 4. FEES, PAYMENT AND FUND MANAGEMENT
    1. Skyelarke Technologies shall bill Client the Setup/Startup Fee, the Funding Fee, Access Fees and a Transaction Fee for any transactions agreed to by the parties in the applicable Work Order under the Agreement, and Client shall pay Skyelarke Technologies the Setup/Startup Fee, the Funding Fee, the Access Fees and Transaction Fee in accordance with the terms of the Agreement and applicable Work Order.
    2. Skyelarke Technologies shall bill Client for any third party costs connected to any miscellaneous services provided which the Client requests and Client shall pay Skyelarke Technologies these billed third party costs.
    3. Skyelarke Technologies shall only bill Client the Access Fees when a study is active and a site has been configured and an Authorized User is assigned to the site.
    4. In the event the Service Provider is required to pay a patient in a currency other than the contracted currency, Client will pay an Exchange Fee for doing so and currency will be converted to the contracted currency on the date of the transaction.
    5. Skyelarke Technologies may increase each of the Setup/Startup Fee, Access Fees or Transaction Fee on an annual basis with effect from each anniversary of the date of the Master Services Agreement, and in the event of a decision to increase, the first such increase of the Setup/Startup Fee, the Access Fee or Transaction Fee shall take effect on the first anniversary of the date of the Agreement.
    6. All Client funds held in advance or otherwise will be managed and reconciled against fees and expenses due. You agree for us to use Client funds in the way we deem appropriate in order to preclude any extraneous charges we may be subject.
  5. SECTION 5. PREPAID CARDS, BANK TRANSFER AND TRANSACTION SETTLEMENT
    1. We will endeavor to provide prepaid cards for patients based in the U.K. and E.U. to you within 7 working days and for patients based in the U.S.A this will be within 14 working days.
    2. Where a patient uses a prepaid card for a transaction it is acknowledged that the transaction will in the main be processed instantly but can take up to 7 days or longer.
    3. We may also use bank transfer to settle patient transactions in which case it is acknowledged that the transaction will in the main be processed instantly but can take up to 7 days or longer.
  6. SECTION 6. REPRESENTATIONS AND WARRANTIES; WARRANTY DISCLAIMER
    1. We warrant that the Services will be provided using reasonable care and skill and, as far as is reasonably possible, in accordance with the relevant Work Order and these Terms of Use.
    2. We give the above warranty subject to the following conditions:
      1. we are under no liability in respect of any loss, damage, costs, expenses or other claims for compensation arising from any materials or instructions supplied by you which are incomplete, incorrect, inaccurate, illegible, out of sequence, or in the wrong form or arising from their late arrival or non-arrival or any other fault attributable to you;
      2. we are under no liability in respect of any loss, damage, costs, expenses, or other claims for compensation in circumstances where we have supplied you with a design which you have approved, and
      3. we are under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow our instructions (whether oral or in writing), misuse or alteration or repair of the Skyelarke Platform without our approval
      4. we are under no liability in respect of payment mistakes, failed payments, erroneous approval of cardholder/unauthorised issuing of card to cardholder and/or unauthorised loading and, in any case, not using card for the purposes intended. We may assist Client upon writing in resolving issues connected with the above but we cannot guarantee resolution or a timeframe in order to resolve. We may charge a nominal fee if we agree to assist Client.
    3. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS OF USE, THE SKYELARKE PLATFORM, SKYELARKE TECHNOLOGIES MATERIALS, AND RELATED SERVICES ARE PROVIDED “AS IS.” SKYELARKE TECHNOLOGIES SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SKYELARKE TECHNOLOGIES MAKES NO WARRANTY OF ANY KIND THAT THE SKYELARKE PLATFORM OR SKYELARKE TECHNOLOGIES MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY ITEMS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY ITEMS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY ITEMS.
    4. Any claim by you which is based on any defect or failure in the supply of the Services shall be notified to us within seven (7) days from the date of access or (where the defect or failure was not reasonably apparent at the relevant time) within a reasonable time after discovery of the defect or failure. If you do not notify us accordingly, we shall have no liability for such defect or failure and you shall be bound to pay the price as if the Skyelarke Platform, Skyelarke Technologies Materials, and related Services had been supplied in accordance with the relevant Work Order.
    5. Where any valid claim in respect of any Services is notified to us in accordance with these Terms of Use, we shall be entitled to repeat the supply of the Services (or the part in question) free of charge or, at our sole discretion, refund to you the Fees (or a proportionate part of the Fees) but we shall have no further liability to you.
    6. Client Representations, Warranties, and Covenants. Client represents, warrants, and covenants to Skyelarke Technologies that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Skyelarke Technologies and Processed in accordance with the Agreement, including these Terms of Use, it does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property rights, or any privacy or other rights of any third party or violate any applicable law.
  7. SECTION 7. INDEMNIFICATION AND LIMITATION OF LIABILITY
    1. Indemnification. You shall indemnify, defend and hold us, our affiliates and our respective officers, directors, employees, agents, contractors and subcontractors (collectively, “Our Indemnitees”) harmless from and against any and all claims, losses, deficiencies, liabilities, obligations, damages, penalties, costs, and expenses, including, without limitation, court costs and reasonable attorneys’ fees (collectively “Claims”) asserted by a third party arising out of or in connection with (i) any theory of product liability; (ii) any side effect or adverse reaction, illness, injury or death proximately caused by proper performance of the protocol by Our Indemnitees and occurring to any study patient; (iii) your use of any study results; (iv) breach of the Agreement, including these Terms of Use, the protocol, or the Contract with respect to the Work Orders, by you, your officers, directors, employees, contractors, subcontractors, and agents, Authorized Users, or any third party acting on behalf of you or any Authorized User; (v) violation of applicable laws by you, your officers, directors, employees, contractors, subcontractors, and agents, Authorized Users, or any third party acting on behalf of you or any Authorized User; (vi) any intellectual property infringement claims in relation to the investigational product or the Services; (vii) negligence, recklessness, omission, wilful misconduct of you, your officers, directors, employees, agents, contractors and subcontractors, Authorized Users, or any third party acting on behalf of Client or any Authorized User; (viii) Client Data, including any Processing of Client Data by or on behalf of Skyelarke Technologies in accordance with the Agreement, including these Terms of use, and the relevant Work order; or (ix) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Client or any Authorized User, including Skyelarke Technologies’ compliance with any specifications or directions provided by or on behalf of Client or any Authorized User to the extent prepared without any contribution by Skyelarke Technologies; provided, however, that you shall have no obligation to indemnify, defend and hold harmless Our Indemnitees from Claims to the extent they arose from; (a) a failure by any of Our Indemnitees to adhere to the terms of the applicable protocol, the Agreement, the Contracts with respect to the applicable Work Order(s), or these Terms of Use; (b) the gross negligence, recklessness or wilful misconduct or omission on the part of any of Our Indemnitees in performance of the Services; (c) a breach by any of Our Indemnitees of our obligations under the Agreement, the Contracts with respect to the Work Orders or these Terms of Use; or (d) a violation of any applicable laws by any of Our Indemnitees.
    2. EXCLUSION OF DAMAGES. IN NO EVENT WILL SKYELARKE TECHNOLOGIES BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, ARISING OUT OF OR RELATED TO THE SKYELARKE PLATFORM OR THE SERVICES RELATED THERETO.
    3. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE LIABILITY OF SKYELARKE TECHNOLOGIES ARISING OUT OF OR RELATED TO THE SKYELARKE PLATFORM OR THE SERVICES RELATED THERETO WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNT OF OUR FEES (WITH THE EXCLUSION, FOR THE AVOIDANCE OF DOUBT, OF THE EXPENSES) PAID BY CLIENT TO SKYELARKE TECHNOLOGIES FOR ACCESS TO THE SKYELARKE PLATFORM UNDER THE REVELEVANT WORK ORDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    4. The exclusions and limitations in Sections 7.2 and 7.3 do not apply with respect of death or personal injury resulting from Skyelarke Technologies’ negligence or wilful misconduct.
    5. Neither party shall be liable to the other nor be deemed to be in breach of the Agreement, including these Terms of Use, by reason of any delay in performing or any failure to perform, any of its respective obligations if the delay or failure was due to any cause beyond its reasonable control, with the exception of any payment obligations. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond our reasonable control:
      1. act of God, explosion, flood , tempest, fire or accident
      2. regional health warning, epidemic, pandemic, outbreak of disease;
      3. war or threat of war, sabotage, insurrection, civil disturbance or requisition;
      4. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
      5. import or export regulations or embargoes;
      6. strikes, lock-outs, or other industrial actions or trade disputes (whether involving our employees or of a third party);
      7. difficulties in obtaining raw materials, labour, fuel, parts or machinery;
      8. power failure or breakdown in machinery.
  8. SECTION 8: PROPRIETARY RIGHTS
    1. Proprietary Rights. The Skyelarke Platform and Skyelarke Technologies Materials and all of their enhancements, upgrades, modifications, configurations, customizations, derivative works, algorithms, compilations, aggregations, source code and/or object code, and copies thereof, and all information, methods, processes and all intellectual property contained therein are and will remain the Intellectual Property of Skyelarke Technologies. Skyelarke Technologies has, retains, and reserves exclusive right and title to, and has all patent, copyright, trademark, trade secret and all other intellectual property rights in and to the Skyelarke Platform and Skyelarke Technologies Materials. Nothing in the Agreement, including these Terms of Use, constitutes a transfer of any Intellectual Property right in the Skyelarke Platform or Skyelarke Technologies Materials by Skyelarke Technologies to Client. Skyelarke Technologies shall have the right to register patents, trademarks and copyrights related to the Skyelarke Platform or Skyelarke Technologies Materials with any governmental authority anywhere in the world.
    2. Resultant Data. In furtherance of the foregoing Section 7.1, Client hereby unconditionally and irrevocably grants to Skyelarke Technologies an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property rights relating thereto.
    3. Consent to Use Client Data. Client hereby irrevocably grants all such rights and permissions in or relating to Client Data as are necessary or useful to Skyelarke Technologies to enforce the Agreement, including these Terms of Use, and exercise its rights and perform its obligations hereunder.
  9. SECTION 9. CLIENT SYSTEM AND COOPERATION
    1. Client Systems and Cooperation. Client shall at all times: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Client Systems on or through which the Skyelarke Platform is accessed or used; (b) provide Skyelarke Technologies Personnel with such access to Client’s premises and Client’s Systems as is necessary for Skyelarke Technologies to operate the Skyelarke Platform in accordance with the Service Level Agreement at Exhibit F; and (c) provide all cooperation and assistance as Skyelarke Technologies may reasonably request to enable Skyelarke Technologies to exercise its rights and perform its obligations under the Agreement, including these Terms of Use and the Service Level Agreement at Exhibit F.
    2. Effect of Client Failure or Delay. Skyelarke Technologies is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under the Agreement, including these Terms of Use and the Service Level Agreement at Exhibit F (each, a “Client Failure”).
    3. Client Control and Responsibility. Client has and will retain sole responsibility for: (a) all Client Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Client or any Authorized User in connection with the Services; (c) Client Systems; (d) the security and use of Client’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Skyelarke Platform and Skyelarke Technologies Materials directly or indirectly by or through the Client Systems or its or its Authorized Users’ Access Credentials, with or without Client’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
    4. Access and Security. Client shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Skyelarke Platform; and (b) control the content and use of Client Data, including the uploading or other provision of Client Data for Processing by the Skyelarke Platform.
    5. Corrective Action and Notice. If Client becomes aware of any actual or threatened activity prohibited by these Terms of Use, Client shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Skyelarke Platform and Skyelarke Technologies Materials); and (b) immediately notify Skyelarke Technologies of any such actual or threatened activity.
  10. SECTION 10. EFFECT OF SUSPENSION, TERMINATION, OR EXPIRATION
    1. Effect of Suspension, Termination or Expiration. Except as expressly otherwise provided in the relevant Work Order, upon suspension, termination, or expiration of Client’s or its Authorized Users’ Skyelarke Platform access under Section 3.2 of these Terms of Use, Client shall and Client shall ensure that its Authorized Users (i) immediately cease all use of the Skyelarke Platform or Skyelarke Technologies Materials; (ii) return to Skyelarke Technologies, at Skyelarke Technologies’ request, all Skyelarke Technologies Materials, documents and tangible materials containing, reflecting, incorporating, or based on any Skyelarke Technologies Materials or Skyelarke Technologies Confidential Information, and permanently erase all Skyelarke Technologies Materials and Skyelarke Technologies Confidential Information from all systems Client or Client’s Authorized User(s) directly or indirectly control. Client may retain one archival copy of Confidential Information in accordance with Client’s document retention policies, where such retention is required by applicable law.
  11. SECTION 11.MISCELLANEOUS
    1. Equitable Relief. Client acknowledges and agrees that a breach or threatened breach by Client of any of its obligations under the Agreement, including these Terms of Use, would cause Skyelarke Technologies irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Skyelarke Technologies will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
  12. SECTION 12: GOVERNING LAW AND VENUE
    1. These Terms of Use shall at any and all times be governed by the laws of England and Wales / the State of Delaware, and you agree to submit to the exclusive jurisdiction of the English Courts / Delaware Courts.

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