These terms and conditions governs the reporting service that will be provided to your company (“CUSTOMER”) by Sky IT Group, 330 Seventh Avenue New York, NY 10001 (“SKY”).
- SKYPAD: Hosted web-based Point of Sale (POS) reporting and analysis application. With user-granted-access by SKY, CUSTOMER, with secure login credentials, can access the CUSTOMER Specific SKYPAD Application to analyze sales and inventory data across RETAILER’S Retail Channels as presented herein.
- Reporting Method 1: SKYPAD NMG Premium: A version of SKYPAD with premium functionality, metrics and granularity that requires a Monthly Fee and Setup Fee.
- Reporting Method 2: SKYPAD NMG Lite: Email based reporting with limited metrics, granularity, and functionality that is free of charge. Reports are emailed to ONE (1) email address. To distribute to additional email addresses will result in a fee per user/month.
- UPC: A universal product code which is assigned to retail merchandise which ID’s the product and vendor which sells the item.
- User-Named-License: License that grants access to the entire CUSTOMER SKYPAD Application. SKYPAD NMG Premium Subscribers receive ONE (1) allocated user-license with subscription. Additional licenses are available for a fee per user/month.
- RETAILER: NEIMAN MARCUS GROUP
A. Program Scope
SKY will distribute sales and inventory data provided from RETAILER (“Data”) to CUSTOMER as specified by the Supplier Site ID/Supplier Name/Brand combination located on the “SKYPAD NMG Premium Trial Registration Page” and/or “Point-of-Sale Reporting Service Agreement" and process the Data into a Data Warehouse. Each weekday, SKY will provide reporting services (“Reporting Services” or “Reports”) via a secure Web Portal (SKYPAD NMG PREMIUM) or via emailed reports (SKYPAD NMG LITE). The Reports will include unit sales and inventory and other values as such information is provided from RETAILER. Data-granularity, available metrics, and features/functionality associated with these Reports will vary based on the elected subscription by CUSTOMER at the end of their TRIAL PERIOD.
The applicable monthly subscription fee (“Monthly Fee”) and initial set-up fee (“Setup Fee”) will be listed on the “SKYPAD NMG Premium Trial Registration Page” and/or “Point-of-Sale Reporting Service Agreement". The Setup Fee is applied to specific aspects of on boarding Reports to production status. This includes establishing the environment, data warehousing construction, Report template construction, and Report delivery set-up. Unless otherwise specified, payment of the first Monthly Fee and the Setup Fee is due upon expiration of “Trial Period”. Pricing is subject to change based on UPC/Door Volume adjustments through Retailer. As provided by CUSTOMER, the Monthly fee and Setup Fee represents the distribution of POS data from SKY to CUSTOMER for the Supplier ID and Brand listed in the “SKYPAD NMG Premium Trial Registration Page” and or “Point-of-Sale Reporting form”. Any additional requests outside of these Supplier IDs and Brands may result in increased Monthly Fees and Setup Fees. CUSTOMER will provide valid and updated credit card information as per the “SKYPAD NMG Premium Billing Information Page” provided to CUSTOMER by SKY, and CUSTOMER authorizes SKY to charge such credit card for all purchased services, including but not limited to, recurring Monthly Fees, and initial Setup Fee.
a. Customized services
Services beyond the scope of this Agreement will be priced by quotation and will be incorporated by reference into this Agreement as an additional service and executed in writing by both parties.
b. Trial Period
This Agreement includes an initial Trial Period of NINTEY (90) days (“Trial Period”) which allows the CUSTOMER to use the SKYPAD NMG Premium application under the terms specified herein with no Monthly Subscription Fee. Additionally, no One-Time Setup Fee with be due during this Trial Period. During the Trial Period, either party may terminate this Agreement with or without cause with five (5) days written notice. At the end of the Trial Period, CUSTOMER will promptly notify SKY if it wishes to proceed with a SKYPAD NMG Premium or instead elect the SKYPAD NMG Lite subscription. Upon written confirmation that CUSTOMER wishes to proceed with a SKYPAD NMG Premium subscription, CUSTOMER will be responsible for paying the Monthly Fees and Setup Fee listed on the “SKYPAD NMG Premium Trial Registration Page” and/or “Point-of-Sale Reporting Agreement”.
C. Term and Termination
The term of this Agreement will automatically renew each month. CUSTOMER or SKY may terminate this Agreement at any time with or without cause with thirty (30) days written notice. All fees incurred by the CUSTOMER prior to termination will be due and payable within fifteen (15) days after such termination per the applicable invoices sent to CUSTOMER. In addition, SKY may immediately terminate this Agreement without notice if CUSTOMER fails to make payments as required herein.
D. Service Levels and Liabilities
Execution and delivery of the Reporting Services by SKY is dependent on the availability, timely delivery, and accuracy of the underlying electronic Data from RETAILER and other sources. SKY shall not be responsible for any delays in performance or inaccuracies in Data or Reports that are due to the actions or inactions of the RETAILER or other sources in reporting the underlying Data. Except as specifically set forth herein, SKY makes no representation and warranty, and expressly disclaims any liability with respect to the content of the Reporting Services, including but not limited to, libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information. Except as expressly set forth herein, the Reporting Services are provided on an “as is” basis and SKY disclaims any and all other warranties, conditions, or representations, express or implied, including, without limitation, any warranties as to the completeness, reliability, suitability or merchantability or fitness for any particular purpose of any Reporting Services furnished hereunder. You represent and warrant that you are duly authorized and have the legal capacity to execute and deliver this Agreement and bind CUSTOMER to its terms and conditions. In no event will either party be liable for any lost or anticipated profits, or any indirect, incidental, punitive, exemplary, special, or consequential damages however so caused and neither party’s liability arising or relating to this Agreement shall exceed the amount of fees paid by CUSTOMER to SKY for the preceding twelve (12) month period.
E. Network Security
SKY follows industry standard best practices to ensure high-level security and protection for CUSTOMER’s data as well as its internal network. SKY uses multiple secure solutions for inbound and outbound traffic consisting of Private Lines and industry standard protocols including, but not limited to, secure FTP, SSL encryption. Traffic passing through high availability firewalls is monitored to permit communications only from verified CUSTOMER networks. Multiple spyware tools and industry standard virus protection software are used throughout the SKY domain to provide real time virus protection for servers, workstations, and e-mail. Security updates are implemented immediately to prevent newly found vulnerabilities and to ensure a stable and secure network.
F. Data Security
SKY assumes full responsibility for the actions of all SKY personnel, contractors or others having access to CUSTOMER Data while performing services under this Agreement, including but not limited to, data theft, unauthorized distribution, duplication and/or data manipulation. SKY will use secure transmission protocols using methods mutually acceptable to the parties engaged in the specific data or report exchange. SKY will execute quality assurance protocols against the Data. The types of protocols will depend upon the type of services provided. SKY and CUSTOMER agree to follow the acceptable use policy of any network user or provider, including third-party networks, used to support this Agreement. SKY and CUSTOMER shall be responsible for their own costs of any network provider with which it contracts separately unless agreed otherwise.
G. Data Accuracy
SKY will implement QC (Quality Control) processes consistent with industry practices to safeguard Data Accuracy. SKY will use best efforts to provide to CUSTOMER, details pertaining to Data elements as listed below. If Reports cannot be delivered to CUSTOMER due to RETAILER’S failure to provide the requested Data, SKY will notify CUSTOMER. SKY will not be held accountable for Data that the RETAILER fails to transmit but will use reasonable efforts to procure from the RETAILER the data that was not transmitted. In the event SKY fails to provide Data that was, in fact, transmitted by the RETAILER, CUSTOMER will notify SKY of any such reporting deficiencies, and SKY will provide to CUSTOMER within one business day of such notification a corrected Report at no additional charge to CUSTOMER.
All non-public information of a party acquired by the other party through the course of this Agreement, including Data and Reports received by CUSTOMER from SKY, will be confidential and will not be disclosed by the receiving party to any third parties (other than its affiliates and personnel) except to the extent disclosed pursuant to law regulation, or court order, or as mutually agreed upon by the parties. CUSTOMER shall indemnify, defend, and hold harmless SKY and its affiliates and its and their respective officers, directors, employees, and contractors from and against any and all losses, claims, actions, liability, damages, costs, and expenses (including reasonable attorneys’ fees) suffered or incurred by SKY that arise directly or indirectly out of or relate to any claim that CUSTOMER breached it confidentiality obligations with respect to the Data and Reports.
While this Agreement is in effect, and for a period of two (2) Years following the termination of this Agreement, both parties will refrain from directly or indirectly soliciting for employment and will not employ any employee of the other party involved in the performance of this Agreement.
J. Force Majeure
Neither party will be liable to the other party for any delay, error, failure in performance, or interruption of performance resulting directly or indirectly from causes beyond that party’s reasonable control.
Neither this Agreement nor any rights or obligations hereunder, may be assigned by either party without the prior written approval of the non-assigning party. Notwithstanding the foregoing, either party may assign this Agreement to a successor entity (including an acquirer of all or substantially all of such party’s assets, business or equity securities, whether by sale, merger or otherwise) or an entity that controls, is controlled by, or under common control with such party.
L. Governing Law /Jurisdiction
This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of New York, excluding the application of any principles of conflicts of laws which would cause the laws of any other jurisdiction to apply. The parties hereby submit to the exclusive jurisdiction of the state and federal courts sitting in the County of New York, in the event of any dispute arising hereunder. The parties waive the right to a jury trial.
CUSTOMER grants to SKY a non-exclusive, worldwide, royalty-free, non-transferable license to use CUSTOMER’s trademark, logo and/or name only to the extent necessary for the performance of this Agreement (i.e., in providing the reporting services to CUSTOMER; any other use of CUSTOMER’s trademark, logo, or name is subject to prior written consent of CUSTOMER in CUSTOMER’s sole discretion.
Any notice by either party to the other shall be in writing and shall be deemed to have been duly given only if
(a) delivered personally or (b) sent by registered mail or certified mail, return receipt requested, in a postpaid envelope or (c) sent by recognized overnight courier service such as Federal Express. Any notice so sent shall be deemed given upon its receipt or rejection as evidenced by a bill of lading or return receipt or upon delivery if personally served.
O. Entire Agreement
This Agreement, in addition to the Customer Specification Form, represents the entire agreement of the parties and supersedes the terms of any prior agreements, except to the extent that the terms of any prior agreements are expressly incorporated herein. This Agreement may not be modified, unless such modification is in writing and signed by the authorized agents of the parties.