Effective from: 7th of May 2025
These SkyCiv General Terms of Service constitute an Agreement between the Subscriber and SkyCiv. “Subscriber” means the company or other entity on whose behalf this Agreement is accepted or, if there is no company or entity, the individual accepting this Agreement. “SkyCiv” means SkyCiv Pty Ltd ABN 73 605 703 071, the owner or operator of the Platform that the User uses or accesses.
1. Acceptance
1.1. If you are accepting this Agreement on behalf of your employer or another entity, you agree that you have full legal authority to bind your employer or such entity to the terms of this Agreement and you agree to this Agreement on behalf of your employer or such entity.
1.2. If you are accepting this Agreement using an email address owned, managed or otherwise controlled by your employer or another entity, then you will be deemed to represent that employer or that entity, your acceptance of this Agreement will bind your employer or that entity to these terms, and the word “you” or “Subscriber” in this Agreement will refer to your employer or that entity.
1.3. By clicking on the “Agree” (or similar button or checkbox) that is presented to you at the time of placing an Order, or by using or accessing the Platform, you confirm that you are bound by this Agreement. If you do not wish to be bound by this Agreement, do not click “Agree” (or similar button or checkbox), or use or access the Platform.
2. Use of Platform
2.1. Permitted use – Subject to this Agreement and during the applicable Subscription Term, SkyCiv grants the Subscriber a non-exclusive, worldwide right to use the Platform and related Support for its and its Affiliates’ internal business purposes, in accordance with the Documentation and the Subscriber’s Plan Inclusions specified in the Order.
2.2. Restrictions on use – Except as otherwise expressly permitted by this Agreement, the Subscriber must not (and must not permit anyone else to):
(a) rent, lease, sell, distribute or sublicense the Platform or any part of it;
(b) provide access to the Platform or any part of it to a third party, other than to Users;
(c) charge its customers a specific fee for use of the Platform or any part of it;
(d) use the Platform or any part of it to develop a similar or competing product or service;
(e) reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to the Platform or any part of it,
(f) modify or create derivative works of the Platform or any part of it;
(g) interfere with or circumvent Platform usage limits or Plan Inclusion restrictions;
(h) remove, obscure or modify in any way any proprietary or other notices or attributions in the Platform or any part of it;
(i) violate the Acceptable Use Policy.
2.3. DPA – The DPA applies to the Subscriber’s or its Users’ use of the Platform and related Support and forms part of this Agreement.
2.4. Disclosure and Rights – The Subscriber must ensure it has made all disclosures and obtained all rights and consents necessary for SkyCiv to use User Content to provide the Platform and Support.
2.5. Product Assessment – The Subscriber is responsible for determining whether the Platform meets the Subscriber’s requirements and any regulatory obligations related to its intended use.
2.6. Responsibilities – The Subscriber may authorise Users to access and use the Platform, in accordance with the Documentation and Subscriber’s Plan Inclusions. The Subscriber is responsible for its Users’ compliance with this Agreement and all activities of its Users, including Orders they may place, Third Party-Products enabled, and how Users access and use User Content.
2.7. Use of the Platform as a tool – The Subscriber agrees and acknowledges that the Platform, or any part of it, together with its various features and capabilities, is a tool and is intended only to assist the Subscriber and its Users with their design, analysis, simulation, estimation, testing and other activities and are not a substitute for the Subscriber’s or it’s Users’ professional judgment or their own independent design, analysis, simulation, estimation, testing, or other activities, including, for example, those with respect to material, structure and component stress, safety, utility and compliance with the laws and industry codes and standards of construction and engineering imposed by law in any given jurisdiction that may at any time be in force and/or applicable. The Subscriber and its Users acknowledge that the Platform may not have been designed or tested for the Subscriber’s or its Users’ specific use, and the Platform and Output may not achieve the results the Subscriber or its Users desire within their specifications, objectives or constraints. It is the Subscriber’s responsibility to determine whether the use of the Platform is appropriate for the Subscriber’s or its Users’ or clients’ purposes, determine the appropriate use for the Platform, and select the part of the Platform and other software, resources and materials, in each case to help achieve the Subscriber’s, its Users’ or its clients’ intended results or Output.
2.8. The Subscriber acknowledge that as between the Subscriber and SkyCiv, the Subscriber is solely responsible for:
(a) the Subscriber’s, and its Users’, use of the Platform and any results produced by the Platform, including any Output; and
(b) establishing the adequacy of independent procedures for testing the reliability, safety, accuracy, completeness, compliance with applicable legal requirements and industry standards, and other characteristics of any Output, including insights, recommendations, and all items designed through, or in connection with, the use of Platform.
SkyCiv will not be responsible or liable in any manner for issues arising due to the use of the Platform, including any Output.
2.9. Platform not to be used for Sensitive Personal Data – Any data storage functionality or capability associated with the Platform is not suitable for the storage of Sensitive Personal Data. Except as expressly required by SkyCiv, the Subscriber or its Users must not upload, import or otherwise make available to SkyCiv any Sensitive Personal Data, including any files containing Sensitive Personal Data, in connection with the Subscriber’s or its Users’ use of the Platform or any part of it.
2.10. Login Credentials – The Subscriber must ensure that each User keeps its login credentials confidential and must promptly notify SkyCiv if it becomes aware of any unauthorised access to any User login credentials or other unauthorised access to or use of the Platform or any part of it.
2.11. Age Restrictions – The Platform, is not intended for commercial use by anyone under the age of 16. SkyCiv can be used for educational purposes by persons of all ages. If the Subscriber is an educational institution, the Subscriber is responsible for using their discretion when assessing the suitability of this product.
2.12. User Content – SkyCiv may process User Content to provide the Platform and related Support in accordance with this Agreement.
2.13. Service Levels – Where applicable, service level commitments in relation to the Platform are set out in the Service Level Agreement.
2.14. Data Retrieval – The Documentation describes how the Subscriber may retrieve its User Content from the Platform.
2.15. Removals and Suspension – SkyCiv is under no obligation to monitor User Content. However, if SkyCiv becomes aware that:
(a) User Content may violate Law, Clause 2.2 (Restrictions on Use), or the rights of others; or
(b) The Subscriber’s use of the Platform threatens the security or operation of the Platform,
then, SkyCiv may in its absolute discretion limit access to, or remove, the relevant User Content or suspend the Subscriber’s or any User’s access to the Platform. SkyCiv may also take any such measures where required by Law, or at the request of a government authority. Where practicable, SkyCiv will give the Subscriber the opportunity to remedy the issue prior to taking any such measures.
2.16. Account Instances – Unless otherwise specified in the Order, each User may use only one (1) login instance to access the Platform at any one time. Without limiting clause 17 below, SkyCiv may, at its sole discretion, lock out or suspend an account if it is used simultaneously in two or more locations or instances or on an unreasonable number (in SkyCiv’s sole determination) of devices or IP addresses per month. Information regarding the SkyCiv Account limits and restrictions will be provided on the checkout page and in the user’s account profile.
2.17. Verification – Upon SkyCiv’s written request, the Subscriber will promptly confirm in writing whether its use of the Platform is in compliance with the applicable Plan Inclusions. SkyCiv or its authorised agents may audit the Subscriber’s use of the Platform in order to confirm compliance with the Subscriber’s Plan Inclusions. If the Subscriber exceeds its Plan Inclusions, including by SkyCiv may invoice for that excess use and the Subscriber will be liable to pay SkyCiv upon issuance of the invoice as a debt due and payable.
3. Third-Party Code and Third-Party Products
3.1. Third-Party Code – This Agreement and the Third-Party Code Policy apply to open source software and commercial third-party software SkyCiv includes in the Platform.
3.2. Third-Party Products – The Subscriber may choose to use the Platform with third-party platforms, apps, add-ons, integrations, services or products. Use of such Third-Party Products with the Platform may require access to User Content and other data by the third-party provider, which, SkyCiv will permit on the Subscriber’s behalf if the Subscriber has enabled that Third-Party Product. The Subscriber’s use of Third-Party Products is subject to the relevant provider’s terms of use, not this Agreement. The availability of any Third-Party Products through the Platform does not imply SkyCiv’s endorsement of or affiliation with the provider. SkyCiv does not control, and will have no liability to the Subscriber for, Third-Party Products. SkyCiv has no obligation to monitor or maintain any Third-Party Products and may replace, disable or restrict access to any Third-Party Products or cancel related integrations at any time, without notice. The calculation of uptime in the Service Level Agreement does not include any unavailability of any integration to, or otherwise use of the Platform in conjunction with, a Third-Party Product. By using or enabling any Third-Party Products, the Subscriber expressly acknowledges that any liability and remedies related to a Third-Party Product is wholly governed by the applicable third party agreement and SkyCiv disclaims all liability related to such Third-Party Product.
4. Support
4.1. SkyCiv will provide Support as described in the Order and in accordance with the Support Policy. SkyCiv’s provision of Support is subject to the Subscriber providing timely access to User Content and personnel reasonably requested by SkyCiv.
5. Ordering and Delivery
5.1. No Order is binding until SkyCiv provides its acceptance, including by sending a confirmation email, providing access to the Platform, or making logins or access credentials available to the Subscriber or its Users. No terms of any purchase order or other business form used by the Subscriber will supersede, supplement, or otherwise apply to this Agreement or SkyCiv. If a Subscriber or User has not already created a SkyCiv account and specified login or access credentials at the time of placing an Order, SkyCiv will either deliver login instructions or access credentials for the Platform electronically, to the Subscriber’s account (or through other reasonable means) promptly upon receiving payment of the fees. The Subscriber is responsible for the intialisation and setting up of User accounts on the Platform, including installing any desktop version of the Platform that may from time to time be available for download, and SkyCiv has no further delivery obligations with respect to the Platform after delivery of logins or access credentials.
6. Billing and Payment
6.1. Fees
(a) Purchases – If the Subscriber purchases directly from SkyCiv, fees and any payment terms are specified in the Subscriber’s Order with SkyCiv.
(b) Renewals – Unless otherwise specified in an Order and subject to the Platform and Support continuing to be generally available, a Subscription Term will automatically renew at SkyCiv’s then current rates for:
(i) if the Subscriber’s prior Subscription Term was for a period less than twelve (12) months, another Subscription Term of a period equal to the Subscriber’s prior Subscription Term; or
(ii) if the Subscriber’s prior Subscription Term was for twelve (12) months or more, twelve (12) months.
Either party may elect not to renew a Subscription Term by giving notice to the other party before the end of the current Subscription Term. The Subscriber must provide any notice of non-renewal through account settings in the Platform, by contacting SkyCiv’s support team or by otherwise providing SkyCiv written notice.
(c) Increased Plan Inclusions – The Subscriber may increase its Plan Inclusions by placing a new Order or modifying (by mutual agreement with SkyCiv) an existing Order. Unless otherwise specified in the applicable Order, SkyCiv will charge the Subscriber for any increased Plan Inclusions at SkyCiv’s then-current rates, prorated for the remainder of the then-current Subscription Term.
(d) Refunds – All fees and expenses are non-refundable, except as otherwise provided in this Agreement.
(e) Credit Card Payments – If the Subscriber uses a credit card or similar online payment method for its initial Order, then SkyCiv may bill that payment method for renewals, additional Orders, overages to Plan Inclusions, expenses, and unpaid fees, as applicable and the Subscriber authorises SkyCiv to debit that payment method for this purpose.
6.2. Taxes
(a) Taxes Generally – Fees and expenses are exclusive of any sales, use, GST, value-added, withholding or similar taxes or levies that apply to the Subscriber’s Orders. Other than taxes on SkyCiv’s net income, the Subscriber is responsible for any such taxes or levies and must pay those taxes or levies, which SkyCiv will itemise separately, in accordance with an applicable invoice.
(b) Withholding Taxes – To the extent the Subscriber is required to withhold tax from payment to SkyCiv in certain jurisdictions, the Subscriber must provide valid documentation it receives from the taxing authority in such jurisdictions confirming remittance of withholding. This documentation must be provided at the time of payment of the applicable invoice to SkyCiv.
(c) Exemptions – If the Subscriber claims exemption from any sales tax, VAT, GST or similar taxes under this Agreement, the Subscriber must provide to SkyCiv a valid tax exemption certificate or tax ID at or before the time of Order, and after receipt of valid evidence of exemption, SkyCiv will not include applicable taxes on the relevant Subscriber’s invoice.
6.3. Return Policy – Within thirty (30) days of its initial Order of SkyCiv Professional Account, the Subscriber may terminate the Subscription Term for the Plan Inclusions specified in that Order, for any or no reason, by providing notice to SkyCiv. Following such termination, upon request (which may be made through the Subscriber’s account on the Platform), SkyCiv will refund the Subscriber the amount paid in respect of the applicable Order.
6.4. Suspension for Non-payment – SkyCiv may suspend the Subscriber’s rights to use the Platform or receive Support if payment is overdue, and SkyCiv has given the Subscriber notice of the overdue payment on no fewer than two (2) occasions.
7. SkyCiv Warranties
7.1. Performance Warranties – SkyCiv warrants to the Subscriber that:
(a) the Platform will operate in substantial conformity with the applicable Documentation during the applicable Subscription Term;
(b) SkyCiv will not materially decrease the functionality (but not the discontinuation or deprecation of a feature) or overall security of the Platform during the applicable Subscription Term; and
(c) SkyCiv will use reasonable efforts designed to ensure that the Platform, when and as provided by SkyCiv, is free of any viruses, malware or similar malicious code
(each, a “Performance Warranty”).
7.2. Performance Warranty Remedy – If SkyCiv breaches a Performance Warranty and the Subscriber makes a reasonably detailed warranty claim within thirty (30) days of discovering the issue, SkyCiv will use reasonable commercial efforts to correct the non-conformity. If SkyCiv determines such remedy to be impracticable and gives notice of same, either party may terminate the affected Subscription Term. SkyCiv will then refund to the Subscriber any pre-paid, unused fees for the terminated portion of the Subscription Term. These procedures are Subscriber’s exclusive remedy and SkyCiv’s entire liability for breach of a Performance Warranty.
7.3. Exclusions – The warranties in this clause 7 (SkyCiv Warranties) do not apply to:
(a) the extent the issue or non-conformity is caused by Subscriber’s unauthorised use, modification of the Platform or breach of this Agreement;
(b) unsupported versions of the Platform; or
(c) Third-Party Products.
7.4. Disclaimers – Except as expressly provided in this clause 7 (SkyCiv Warranties), the Platform, Support and all related SkyCiv services and deliverables are provided “AS IS.” SkyCiv makes no other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or non-infringement. SkyCiv does not warrant that the Subscriber’s use of the Platform, or the Support provided to the Subscriber, will be uninterrupted, bug-free or error-free. SkyCiv is not liable for delays, failures or problems inherent in use of the internet and electronic communications or other systems outside SkyCiv’s control.
8. Term and Termination
8.1. Term – This Agreement commences on the date the Subscriber accepts it and expires when all Subscription Terms have ended.
8.2. Termination of Convenience – The Subscriber may terminate this Agreement or a Subscription Term upon notice for any reason. Subject to clause 6.3 (Return Policy), the Subscriber will not be entitled to any refunds as a result of exercising its rights under this clause 8.2, and any unpaid amounts for the then-current Subscription Terms and any related service periods will become a debt due and payable immediately upon such termination.
8.3. Termination for Cause – Either party may terminate this Agreement or a Subscription Term if the other party:
(a) fails to cure a material breach of this Agreement (including a failure to pay fees) within thirty (30) days after notice;
(b) ceases operation without a successor;
(c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within thirty (30) days.
If the Subscriber terminates this Agreement or a Subscription Term in accordance with this clause 8.3, SkyCiv will refund to the Subscriber any pre-paid, unused fees for the terminated portion of the Agreement or applicable Subscription Term.
8.4. Effect of Termination – Upon expiration or termination of this Agreement or a Subscription Term:
(a) the Subscriber’s rights to use the Platform is limited to that of a Free User and any right of the Subscriber to receive Support will cease;
(b) the Subscriber must immediately cease accessing the Platform in any manner other than as a Free User; and
(c) Following expiration or termination, unless prohibited by Law, upon request SkyCiv will delete User Content in accordance with the Documentation and the Privacy Policy.
9. Ownership
Except as expressly set out in this Agreement, neither party grants the other any rights or licenses to its intellectual property under this Agreement. As between the parties, the Subscriber owns all intellectual property and other rights in User Content provided to SkyCiv or used with the Platform. SkyCiv and its licensors retain all intellectual property and other rights in the Platform, any Support, deliverables and related source code, SkyCiv technology, templates, formats and dashboards, including any modifications or improvements.
10. Limitations of Liability
10.1. Damages Waiver – Except for Excluded Claims or Special Claims, to the maximum extent permitted by Law, neither party will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if reasonably foreseeable or informed of their possibility in advance.
10.2. General Liability Cap – Except for Excluded Claims, to the maximum extent permitted by Law, each party’s entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid to SkyCiv for the Platform and/or Support giving rise to the liability during the twelve (12) months preceding the first event out of which the liability arose. The Subscriber’s payment obligations under clauses 6.1 (Fees) and 6.2 (Taxes) are not limited by this clause 10.2.
10.3. Excluded Claims – “Excluded Claims” means:
(a) The Subscriber’s breach of clause 2.2 (Restrictions on use); or
(b) either party’s breach of clause 12 (Confidentiality) but excluding claims relating to User Content.
10.4. Nature of Claims and Failure of Essential Purpose – The exclusions and limitations in this clause 10 (Limitations of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
10.5. Non-derogation – Nothing in this Agreement shall, or is intended to, exclude, limit or derogate from any party’s obligations, rights or remedies which as a matter of law cannot be excluded, limited or derogated from pursuant to any legislation or statute, including, but not limited to, the Australian Consumer Law.
11. Indemnification by Subscriber
11.1. Indemnity – The Subscriber must:
(a) defend SkyCiv from and against any third-party claim to the extent alleging any cause of action, loss or damage incurred by the third-party as a result of or in connection howsoever with the Subscriber’s use of the Platform, Support or any Output (“Third-Party Claim”); and
(b) indemnify and hold harmless SkyCiv against any damages, monetary sum, judgement, fines, expenses or costs finally awarded by a court, tribunal, finder of fact or arbitration forum of competent jurisdiction (including legal costs on a full indemnity basis) or agreed in settlement by SkyCiv resulting from a Third-Party Claim.
12. Confidentiality
12.1. Definition – “Confidential Information” means information disclosed by one party to the other under or in connection with this Agreement that:
(a) is designated by the disclosing party as proprietary or confidential; or
(b) should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure.
SkyCiv’s Confidential Information includes any source code and technical or performance information about the Platform. The Subscriber’s Confidential Information includes User Content.
12.2. Obligations – Unless expressly permitted by the disclosing party in writing, the receiving party must:
(a) hold the disclosing party’s Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement; and
(b) only use such Confidential Information to fulfill its obligations and exercise its rights in this Agreement.
The receiving party may disclose such Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for SkyCiv, the subcontractors referenced in clause 16.12 (Subcontractors and Affiliates)), provided the receiving party remains responsible for their compliance with this clause 12 (Confidentiality) and they are bound to confidentiality obligations no less protective than this clause 12 (Confidentiality).
12.3. Exclusions – These confidentiality obligations do not apply to information that the receiving party can demonstrate:
(a) is or becomes publicly available through no fault of the receiving party;
(b) it knew or possessed prior to receipt under this Agreement without breach of confidentiality obligations;
(c) it received from a third party without breach of confidentiality obligations;
(d) it independently developed without using the disclosing party’s Confidential Information.
The receiving party may disclose Confidential Information if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the disclosing party in advance and cooperates, at the disclosing party’s cost, in any reasonable effort to obtain confidential treatment.
12.4. Remedies – Unauthorised use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or anticipated breach of this clause 12 (Confidentiality).
13. Free Users
13.1. Free Access – Subscribers may receive access to the Platform on a free, fully discounted or trial basis, or as an alpha, beta or early access offering (“Free Access Plans”). Limited access to some of the features of the Platform may from time to time be available without registering to use the Platform (“Limited Access”). Registering to use the Platform prior to placing an Order for a paid subscription will grant a user access to the Platform under a Free Access Plan. Use of the platform under either Limited Access or a Free Access Plan is subject to this Agreement and any additional terms specified by SkyCiv, such as the applicable scope, term of use and Plan Inclusions.
13.2. Termination or Modification – At any time, SkyCiv may terminate or modify the Subscriber’s use of Free Access Plans (including applicable terms and Plan Inclusions), without any liability to the Subscriber. For Modifications to Free Access Plans, the Subscriber must accept those modifications to continue accessing or using the Free Access Plans.
13.3. Disclaimer – Notwithstanding anything else in this Agreement, to the maximum extent permitted by Law, SkyCiv provides no warranty, indemnity, service level agreement or support for Limited Access use or Free Access Plans and its aggregate liability in relation to Limited Access use or Free Access Plans is limited to AU$100.
14. Feedback
If the Subscriber or a User provides SkyCiv with feedback or suggestions regarding the Platform or other SkyCiv offerings, SkyCiv may use the feedback or suggestions without restriction or obligation.
15. Promotional Material
SkyCiv may identify the Subscriber as a customer of SkyCiv in its promotional materials and may use the Subscriber’s or its Users’ Output (including designs) in its promotional materials. SkyCiv will promptly stop doing so upon the Subscriber’s request sent to support@skyciv.com.
16. General Terms
16.1. Compliance with Laws – The Subscriber must, and must ensure its Users, comply with all Laws applicable to its business in its performance of obligations or exercise of rights under this Agreement.
16.2. Assignment
(a) The Subscriber may not assign or transfer any of its rights or obligations under this Agreement or an Order without SkyCiv’s prior written consent, which consent may be withheld in SkyCiv’s absolute discretion. However, the Subscriber may assign this Agreement in its entirety (including all Orders) to its successor resulting from a merger, acquisition, or sale of all or substantially all of the Subscriber’s assets or voting securities, provided that the Subscriber provides SkyCiv with prompt written notice of the assignment and the assignee agrees in writing to assume all of the Subscriber’s obligations under this Agreement and complies with SkyCiv’s procedural and documentation requirements to give effect to the assignment.
(b) Any attempt by the Subscriber to transfer or assign this Agreement or an Order, except as expressly authorised by this clause 16.2 (Assignment), will be null and void.
(c) SkyCiv may assign its rights and obligations under this Agreement (in whole or in part) without the Subscriber’s consent.
16.3. Governing Law, Jurisdiction and Venue – This Agreement is governed by the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of the Courts of New South Wales, Australia and any Courts from which appeals from those Courts may be led. This Agreement will be governed by such laws without regard to conflicts of laws provisions. The United Nations Convention on the International Sale of Goods does not apply to this Agreement.
16.4. Notices
(a) Except as specified elsewhere in this Agreement, notices under this Agreement must be in writing and are deemed given on:
(i) personal delivery;
(ii) when received by the addressee if sent by a recognised overnight courier with receipt request;
(iii) the third business day after mailing;
(iv) the first business day after sending by email.
(b) Notices to the Subscriber must be provided to the billing or technical contact provided to SkyCiv, which may be updated by the Subscriber from time to time in the Subscriber’s account portal. It is the Subscriber’s responsibility to maintain accurate contact details in the Subscriber’s account portal. However, SkyCiv may provide general or operational notices via email, on its website or through the Platform.
16.5. Entire Agreement – This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In the event of a conflict among the documents making up this Agreement, the main body of this Agreement will control, except that the Policies and DPA will control for their specific subject matter.
16.6. Interpretation – In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation.
16.7. Waiver – Waivers must be granted in writing and signed by the waiving party’s authorised representative.
16.8. Severability – If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
16.9. Survival – The following clauses survive expiration or termination of this Agreement: 2.2 (Restrictions on use), 6.1 (Fees), 6.2 (Taxes), 7.4 (Disclaimers), 8.4 (Effect of Termination), 9 (Ownership), 10 (Limitations of Liability), 11 (Indemnification by Subscriber), 12 (Confidentiality), 13.3 (Disclaimer), 14 (Feedback), 16 (General Terms), 16.9 (Survival) and 17 (Definitions).
16.10. Amendments to this Agreement
(a) SkyCiv may modify this Agreement (which includes the Policies and DPA) from time to time, by publishing the modified portion(s) of this Agreement on SkyCiv’s website. SkyCiv will use commercially reasonable efforts to post any such modification at least fourteen (14) days prior to its effective date.
(b) For Free Access Plans, modifications become effective during the then current Subscription Term, in accordance with SkyCiv’s notice.
(c) For paid subscriptions:
(i) except as specified below, modifications to this Agreement will take effect at the next Order or renewal unless either party elects to not renew pursuant to clause 6.1(b) (Renewals); and
(ii) SkyCiv may specify that modifications will become effective during a then-current Subscription Term and, if SkyCiv does so, the Subscriber may terminate the remainder of the then-current Subscription Term as its exclusive remedy. To exercise this right, the Subscriber must notify SkyCiv of its termination under this clause 16.10(c) within thirty (30) days of the modification notice, and SkyCiv will refund any pre-paid fees for the terminated portion of the applicable Subscription Term.
16.11. Force Majeure – Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control and occurring without that party’s fault or negligence.
16.12. Subcontractors and Affiliates – SkyCiv may use subcontractors or its Affiliates in the performance of its obligations under this Agreement, but SkyCiv remains responsible for its overall performance under this Agreement and for having appropriate written agreements in place with its subcontractors to enable SkyCiv to meet its obligations under this Agreement.
16.13. Independent Contractors – The parties are independent contractors, not agents, partners or joint venturers.
16.14. Export Restrictions – The Platform may be subject to U.S. export restrictions and import restrictions of other jurisdictions. The Subscriber must comply with all applicable export and import Laws in its access to and use of the Platform or any content or records entered into the Platform. The Subscriber must not (and must not allow anyone else to) export, re-export, transfer or disclose the Platform or any direct product or Output of the Platform:
(a) to (or to a national or resident of) any U.S. embargoed jurisdiction;
(b) to anyone on any U.S. or applicable non-U.S. restricted- or denied-party list; or
(c) to any party that the Subscriber has reason to know will use the Platform in violation of U.S. export Law, or for any restricted end user under U.S. export Law.
16.15. No Contingencies – The Platform and Support in each Order are purchased separately and not contingent on purchase or use of other SkyCiv products and services, even if listed in the same Order. The Subscriber’s purchases are not contingent on delivery of any future functionality or features.
17. Definitions
“Acceptable Use Policy” means SkyCiv’s Acceptable Use Policy.
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “ownership” means the beneficial ownership of more than fifty percent (50%) of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
“Agreement” means this SkyCiv General Terms of Service, as well as the DPA and the Policies.
“User Content” means any data, content or materials provided to SkyCiv by or at the direction of Users, including Subscribers, via the Platform, including from Third-Party Products.
“Documentation” means SkyCiv’s usage guidelines and standard technical documentation for the Platform available here.
“DPA” means the SkyCiv Data Processing Addendum.
“Laws” means all applicable laws, regulations, conventions, decrees, decisions, orders, judgments, codes and requirements of any government authority (federal, state, local or international) having jurisdiction.
“Order” means SkyCiv’s ordering document or online checkout system specifying the Plan Inclusions and Support to be provided under this Agreement, accepted by SkyCiv in accordance with clause 5 (Ordering and Delivery).
“Output” means all results, work product, calculations, estimations, models, simulations, designs, prototypes or other items created or generated, including reports and summaries generally as well as in relation to the foregoing, by or through any use of any part of the Platform.
“Policies” means the Acceptable Use Policy, Support Policy, Privacy Policy, Service Level Agreement, Third-Party Code Policy and any additional SkyCiv policies published from time-to-time.
“Privacy Policy” means SkyCiv’s Privacy Policy.
“Platform” means the cloud-based software platform made available by SkyCiv in connection with an Order and includes the SkyCiv websites including but not limited to; skyciv.com and all subdomains, beamdimensions.com and bendingmomentdiagram.com.
“Plan Inclusions” means the Subscriber’s entitlements to the features and parts of the Platform specified in an Order, which may include: (a) number and type of Users, (b) numbers of licenses, copies or instances, (c) entity, division, business unit, website, field of use or other restrictions or billable units, (d) features and tools that form part of the Platform or (e) Support levels.
“Sensitive Personal Data” means social security numbers, credit or debit card numbers, financial account numbers, driver’s license numbers, medical information, or health insurance information; data about personal characteristics or other personal data, such as race or ethnic origin, religion or philosophical beliefs, political affiliation or opinions, genetic or biometric data, sexual orientation, or trade union membership; or other information that may expose, or pose a risk of harm to, an individual if improperly disclosed or used.
“Service Level Agreement” means the service level commitments, if any, for the Platform as described here.
“Subscription Term” means the term for the Subscriber’s use of or access to the Platform and related Support in accordance with the Plan Inclusions as identified in an Order.
“Support” means the level of support for the Platform corresponding to Subscriber’s Plan Inclusions, as identified in the Support Policy.
“Support Policy” means the SkyCiv Support Policy.
“Third-Party Code Policy” means SkyCiv’s Third-Party Code Policy.
“User” means any individual that uses the Platform, including whether under Limited Access Plan or a Free Access Plan), and including Users that a Subscriber authorises to use the Platform. Users may include: (i) The Subscriber’s and its Affiliates’ employees, consultants, contractors and agents (ii) third parties with which Subscriber or its Affiliates transact business (iii) individuals invited by Subscriber’s users (iv) individuals under managed accounts, or (v) individuals interacting with the Platform as the Subscriber’s customer.
“User Content” means any data, content or materials provided to SkyCiv by or at the direction of Users, including Subscribers, via the Platform, including from Third-Party Products.
