Terms of Service

Last Updated: March 04, 2019 Effective Date: March 04, 2019

1. Agreement. These Terms of Service (“Terms”) form a legal agreement between you, the customer, and Tilde, Inc. (“Provider,” “we,” or “us”) that governs your use of the Skylight website, mobile application, and platform (collectively called “Platforms”). We may offer trial, beta, open source, or other free versions of the Platforms (referred to as “Free Platforms”). Different terms apply to your use of the Free Platforms than to paid licenses (referred to as “Paid Platforms”). Any references to the generic term “Platforms” refers to both Free Platforms and Paid Platforms. By accessing the Platforms, you signify that you have read, understand and agree to be bound by these Terms. Please note that these Terms include important legal provisions, including an arbitration agreement in which you agree to waive your rights to a jury trial and to participate in a class action lawsuit. If you would like to opt out of the arbitration agreement, please email us within 30 days after accepting these terms at support@skylight.io.
2. Platforms.
   1. Changes. Provider may make any changes to the Platforms that it deems necessary or useful to: (a) maintain or enhance the Platforms; or (b) to comply with applicable law. We may, in our sole discretion, modify these Terms via email or by posting notice on any part of the Platforms. The “Last Updated” date at the top the Terms of Service indicates when the latest modifications were made to the Terms of Service. By continuing to access and use the Platforms after the Terms are modified, you agree to such modifications.
   2. Additional Terms. Some Platforms are subject to posted guidelines or policies applicable to such Platforms that may be posted from time to time. All such guidelines or policies are incorporated by reference into these Terms.
   3. Suspension or Termination.
      1. If you are using Free Platforms, we reserve the right in our sole discretion to (i) terminate your account, (ii) delete any of your content, (iii) restrict your use of all or any part of the Platforms, and (iv) modify or discontinue the Free Platforms (or any part of the Free Platforms), for any or no reason, without notice, and without liability to you or anyone else.
      2. If you are using Paid Platforms, we may lock, suspend or terminate your access to the Platforms without liability, but only if:
         1. We receive a legal demand that requires us to do so; or
         2. We reasonably believe that: (i) you have breached these Terms, including your payment obligations; (ii) you have used the Platforms in any fraudulent or unlawful activities; or (iii) these Terms expire or are terminated. This Section 2.3 does not limit any of our other rights or remedies.
      3. We may also terminate your account for any reason upon notice to you. In that case, we will refund any prepaid amounts.
      4. You may terminate your use of the Paid Platforms at any time. No refunds or credits for Fees will be provided if you terminate your subscription to a Paid Service or otherwise cancel your account before the end of your subscription term.
3. Data Usage and Ownership; Intellectual Property Rights.
   1. Definitions. For purposes of this Agreement, the following definitions apply:
      1. “Your Customers’ Data” means data and other content, in any form or medium, that pertains to your customers and is provided by you, by or through the Platforms.
      2. “User Data” means information, data and other content, in any form or medium, that is collected from or generated or uploaded by you, by or through the Platforms, including Your Customers’ Data and your Personal Data. User Data excludes De-Identified Data and Feedback.
      3. “De-Identified Data” means information, data and other content that is derived by or through use of the Platforms or from Processing User Data and is sufficiently different from such User Data that neither the specific User Data nor any Personal Data included in the User Data may be reverse engineered or otherwise identified.
      4. “Feedback” means all suggestions, comments, and other feedback provided by you related to its use of the Platforms.
      5. “Intellectual Property Rights” means all patent rights, copyrights, trade secret rights, rights of publicity, and other intellectual property rights.
      6. “Personal Data” means any information relating to an identified or identifiable natural person.
      7. “Process” means any operation or set of operations with respect to data, including to collect, store, organization, structuring, adaptation or alteration, compile, copy, adapt, disseminate, transmit, and analyze. “Processing” and “Processed” have correlative meanings.
      8. “Provider Materials” means the software, design, graphics, text, pictures, and other files or content available through the Platforms or generated by Provider, including De-Identified Data. Provider Materials also include Feedback but exclude User Data.
      9. “Third Party Materials” means software, information, data, documents, and materials relating to the Platforms that are not owned by Provider or you.
   2. Ownership of User Data. As between you and us, you will remain the owner of all User Data, including related Intellectual Property Rights, subject to the permissions granted in Section 3.3.
   3. Consent to Use User Data. You hereby irrevocably grant to Provider:
      1. the right to Process User Data solely to the extent necessary to provide the Platforms to you and respond to support requests; and
      2. the right to Process User Data in such a way that renders it De-Identified Data. All De-Identified Data is owned exclusively by us. We may use De-Identified Data as legally permitted.
   4. Privacy Statement. Any other uses of User Data are described in our privacy statement, available at https://skylight.io/privacy (“Privacy Statement”).
   5. Prohibited Data. You acknowledge that the Platforms are not designed for Processing the following categories of information: (a) Personal Data within Your Customers’ Data; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). Unless we have a separate written agreement saying otherwise, you shall not, and shall not permit any third party to, provide any Prohibited Data to, or Process any Prohibited Data through the Platforms. You are solely responsible for reviewing all User Data and shall ensure that no User Data constitutes or contains any Prohibited Data. You specifically represent and promise that Your Customers’ Data does not contain Personal Data.
   6. Provider’s Intellectual Property Rights. We will be the exclusive owner of all Intellectual Property Rights in and to all Provider Materials. You hereby assign to us all Intellectual Property Rights in and to the De-Identified Data and Feedback. Except as expressly provided, nothing in these Terms grants or licenses to you any Intellectual Property Rights in or to the Platforms, Provider Materials or Third Party Materials.
4. Access Rights and Restrictions.
   1. Grant of Rights. Conditioned on your compliance with these Terms and payment of the Fees (if applicable), Provider grants you the right to access and use the Platforms during the Term for your internal business operations only.
   2. Authorization Limitations and Restrictions. Your use of the Platforms is subject to these restrictions:
      1. You must be at least 16 years old to use the Platforms. If you are under the age of 16, you represent that you have the consent of a parent or legal guardian to use and access the Platforms.
      2. You shall not permit any third party to access or use the Platforms.
      3. Unless expressly permitted by Provider or applicable law, you shall not:
         1. copy, modify or create derivative works or improvements of the Platforms or Provider Materials;
         2. reverse engineer, disassemble, decompile, or decode the source code of the Platforms or Provider Materials;
         3. use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any aspect of the Platforms;
         4. configure or use the Platforms in any way that is not intended;
         5. bypass or breach any security device or protection used by the Platforms, or access the Platforms other than through your own valid Access Credentials;
         6. upload or transmit any Harmful Code (“Harmful Code” means information or materials that contain or activate any technology, including viruses or malware, that permits unauthorized access to or impedes the Platforms or Provider’s systems, or prevents other users from accessing or using the Platforms);
         7. access or search or attempt to access or search the Platforms by any means other than through our currently available, published interfaces that are provided by us;
         8. create or maintain any link from another application to any page at the Platforms without our prior authorization;
         9. remove or alter any intellectual property notices from any Platforms or Provider Materials; or
         10. access or use the Platforms or Provider Materials in any manner that infringes or violates any Intellectual Property Right or other right of any third party or that violates any applicable law.
   3. Audit Right; Fees for Unauthorized Use. Provider may access your account to determine compliance with these Terms. You shall cooperate with us in conducting such audits and provide reasonable access to records, systems, equipment, information and personnel. We agree to only examine information directly related to your use of the Platforms. If the audit determines that your use of the Platforms exceeds the use permitted by these Terms, then you shall, within 15 days we notify you about the underpayment, pay us the retroactive Fees for such excess use. If the use exceeds the permitted use by more than 5%, you shall also pay our audit costs.
5. Your Obligations. You are solely responsible for:
   1. all User Data, including its content and use;
   2. all information, instructions and materials provided by or on your behalf;
   3. your systems;
   4. the security and use of your Access Credentials;
   5. all access to and use of the Platforms and Provider Materials;
   6. compliance with all applicable laws regarding the use of the Platforms; and
   7. compliance with these Terms.
6. Fees; Payment Terms.
   1. Fees. Fees associated with your use of the Platforms (“Fees”) are generally billed monthly, based on your usage within the prior month. Your usage tier will be automatically adjusted each month depending on your actual usage of the Platforms. If you prefer to pre-pay Fees on an annual basis, please contact us directly via the in-app messenger. No refunds or credits will be provided to you if you cancel your plan. We reserve the right to contact you about special pricing. You can read more about our Fees and annual billing options at https://skylight.io/pricing and https://skylight.io/support/app-and-account-management#billing.
   2. Fee Increases. Provider may increase Fees:
      1. if you maintain an unusually high number of apps sending data, an unusually high monthly support ticket ratio, or other excessive stress on the Platforms; and/or
      2. no more than once annually by providing you with written notice at least 60 days before becoming effective. You may terminate these Terms upon 30 days’ notice to us if you do not agree to the Fee increase.
   3. Taxes. All Fees and other amounts payable by you under these Terms are exclusive of taxes and similar assessments. You are responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by you, other than any taxes imposed on our income.
   4. Payment. If you fail to pay Fees within 5 business days after notice from us, or if you fail to provide updated payment information upon our request, then:
      1. we may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law;
      2. you shall reimburse us for all costs we incur in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and
      3. we may either: (i) lock your account and/or suspend performance of the Platforms until all undisputed past due amounts have been paid or (ii) terminate your access to the Platforms and these Terms, in either case, without liability to you.
   5. No Deductions or Setoffs. All amounts payable to us under this Agreement will be paid without any setoff or deduction.
7. Confidentiality. By accessing and using the Platforms, you may encounter confidential information owned by Provider, including information relating to our technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing (“Confidential Information”), in each case whether or not marked as “confidential.” You agree that you shall: (a) not access or use Confidential Information other than as necessary to perform your obligations as an Authorized User; (b) not disclose or permit access to Confidential Information to any third party; and (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care you use to protect your own confidential information (in no event less than a reasonable degree of care).
8. Effect of Expiration or Termination. Upon any expiration or termination of these Terms: (a) all rights, licenses, consents and authorizations granted by either party to the other will immediately terminate; (b) we may retain User Data in our backups, archives and disaster recovery systems until User Data is deleted in the ordinary course, or as required by applicable law; (c) you shall immediately cease all use of any Platforms or Provider Materials and promptly return or destroy (at our request), all documents and materials containing, reflecting, incorporating or based on our Confidential Information; and (d) we may disable all access to the Platforms and Provider Materials.
   1. Surviving Terms. The following provisions will survive any expiration or termination of this Agreement: Section 4.2, Section 6.3, Section 6.4, Section 7, Section 9, Section 10, Section 11 and Section 13.
9. Representations and Warranties.
   1. Mutual Representations and Warranties. Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing; and (b) it has the full right and authority to enter into and perform its obligations under these Terms.
   2. Additional Representations and Warranties by You. You represent and warrant that you own or otherwise have (and will have) the necessary rights and consents related to the User Data so that the User Data 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, so long as the User Data is Processed in accordance with these Terms.
   3. DISCLAIMER OF WARRANTIES. Except for the express warranties set forth in section 9, all Platforms and Provider Materials are provided “as is.” You acknowledge that the Free Platforms are provided without any warranty of any kind, and that you use the Free Platforms at your own risk. Provider hereby disclaims all warranties, whether express, implied, or statutory, and Provider 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. Provider makes no warranty that the Platforms or Provider Materials will meet your or any other third party’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 Materials are provided “as is.”

10. Indemnification.

    1. Indemnification. You shall indemnify, defend and hold harmless Provider and its officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including attorneys’ fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers (“Losses”) incurred by a Provider Indemnitee in connection with any claim, suit, action or proceeding (each, an “Action”) by a third party to the extent that such Losses arise out of any:
       1. User Data, including any Processing of User Data;
       2. any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on your behalf, including our compliance with any directions provided by or on your behalf;
       3. breach of any of your representations, warranties, or obligations under these Terms; or
       4. negligence, recklessness or willful misconduct by you, or any third party acting on your behalf.
    2. Mitigation. If any of the Platforms or Provider Materials are, or in our opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, we may:
       1. obtain the right for you to continue to use the Platforms and Provider Materials;
       2. modify or replace the Platforms and Provider Materials, in whole or in part, to seek to make the Platforms and Provider Materials (as so modified or replaced) non-infringing, while providing equivalent features and functionality; or
       3. terminate your subscription on written notice to you, provided that you will be entitled to a refund of any prepaid and unused Fees.

    THIS SECTION 10 DESCRIBES YOUR SOLE REMEDY AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE PLATFORMS AND PROVIDER MATERIALS INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.

11. Limitations of Liability.
    1. EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, DELAY OR INABILITY TO USE THE PLATFORMS, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) 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. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE.
    2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL OUR AGGREGATE LIABILITY IN CONNECTION WITH THESE TERMS, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE GREATER OF: (i) AMOUNT OF FEES RECEIVED FROM YOU WITHIN THE SIX MONTHS BEFORE THE CLAIM AROSE OR (ii) $500. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12. Force Majeure.
    1. No Breach or Default. In no event will either party be liable for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), if the failure or delay is caused by any circumstances beyond the party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.

13. Miscellaneous.

    1. Copyright Infringement Notice Procedure. If you believe your copyrighted work has been copied or posted on or through the Platforms in a way that constitutes copyright infringement, then please contact us at support@skylight.io and provide the following information:

       1. A description of the copyrighted work that you believe has been infringed;
       2. A description of what the allegedly infringing work is;
       3. A description of the location where the allegedly infringing work is located on the Platforms;
       4. An address and phone number where you can be contacted, including an email address if possible;
       5. A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
       6. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright; and
       7. A statement, made under penalty of perjury, that the above information in the notice is accurate and that the signatory is the copyright owner or is authorized to act on behalf of the copyright owner.

       Consult your legal advisor before filing an infringement notice, because there can be penalties for false claims.

    2. Electronic Communications. By using the Platforms, you agree to receive certain electronic communications from us, whether through the Platforms or by email, including marketing communications. You agree that any notice, agreement, disclosure or other communication that we send you electronically will satisfy any legal notice requirements, including that such communications be in writing. All calls, emails and other communications between you and Provider may be recorded, and you consent to such recordings.
    3. Marketing. We may use your logos, trademarks and service marks (“Marks”) for the limited purpose of identifying you as a customer on our website and marketing materials. We shall comply with any usage guidelines you provide in writing and shall not assert any ownership interest in the Marks.
    4. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    5. Entire Agreement. These Terms, together with any other documents referenced, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings and agreements, written or oral, with respect to such subject matter.
    6. Assignment. These Terms are personal to you, the user. You may not assign these Terms or any rights and licenses in these Terms to another party. These Terms may be assigned by Provider without restriction.
    7. No Third-party Beneficiaries. These Terms are for the sole benefit of the parties and their respective permitted successors and permitted assigns. These Terms do not confer upon any other person any legal or equitable right, benefit or remedy of any nature.
    8. Amendment and Modification; Waiver. No waiver, amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each party. No waiver of any violation or nonperformance of these Terms in one instance will be deemed to be a waiver of any subsequent violation or nonperformance.
    9. Severability. If any term or provision is deemed invalid or unenforceable, the remainder of these Terms will be valid and enforced to the fullest extent permitted by law.
    10. Arbitration and Class Action Waiver. Subject to the exceptions described below, all disputes arising out of or related to these Terms or any aspect of your relationship with Provider, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a single arbitrator instead of in a court by a judge or jury. You agree that Provider and you are each waiving the right to trial by a jury. You agree that any arbitration will take place on an individual basis. You hereby waive the ability to participate in a class action. The parties agree that the arbitrator will have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this arbitration agreement.
        1. You and Provider each retain the right to: (i) bring an individual action in small claims court and (ii) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement or misappropriation of a party’s trade secrets or intellectual property rights.
        2. You will also have the right to litigate any other dispute that would otherwise be subject to this arbitration agreement if you opt out of the arbitration agreement by sending an email to support@skylight.io or a letter to Tilde, Inc. 707 SW Washington, Ste 1400, Portland, OR 97205 within 30 days after the date you first agree to these Terms of Use. If you don’t provide Provider with a timely opt-out notice, this arbitration agreement applies.
        3. The arbitration will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (currently available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879). The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines that an in-person hearing is appropriate. Any in-person appearances will be held at a location that is reasonably convenient to both parties. If the parties are unable to agree on a location, the arbitrator will determine the location. If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Provider will contribute to your filing and hearing fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. The arbitrator’s decision will follow the terms of this Agreement (including the Limitation of Liability provision) and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction.
    11. Contact Information. You may contact us at support@skylight.io.