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Terms and Conditions for SKYPAD for Dillard's

These terms and conditions govern the reporting service thatwill be provided to your company (“CUSTOMER”) by Sky IT Group, 345 SeventhAvenue New York, NY 10001 (“SKY”). By checking the box “I accept the Terms andConditions” on the SKYPAD for Dillard’s Billing Form you agree to the terms andconditions set forth herein.

Definitions:

  1. 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.
  2. User-Named-License: License     that grants access to the entire CUSTOMER SKYPAD Application. SKYPAD for Dillard’s     Subscribers receive ONE (1) allocated user-license with subscription.     Additional licenses are available for a fee per user/month.
  3. RETAILER: Dillard’s

A.       Program Scope

SKY will distribute, and process into a data warehouse,sales and inventory data provided from RETAILER (“Data”) toCUSTOMER as specified by the VENDOR # approved by RETAILER andlocated on the “SKYPAD for Dillard’s Billing Form”. Each week, SKY will providereporting services (“Reporting Services” or “Reports”) via a secure WebPortal SKYPAD. The Reports will include unit sales and inventoryand other values as such information is provided from RETAILER.  

B.        Fees

The applicable monthly subscription fee (“Monthly Fee”) andinitial set-up fee (“Setup Fee”) will be listed on the “SKYPAD for Dillard’s BillingForm”. The Setup Fee is applied to specific aspects of onboarding Reports to production status. This includes establishing theenvironment, data warehousing construction, Report template construction, andReport delivery set-up. Unless otherwise specified, payment of the firstMonthly Fee and the Setup Fee is due upon clicking “Pay and Proceed to UserRegistration” on the “SKYPAD for Dillard’s Billing Form”. Pricing is subject tochange based on UPC/Door Volume adjustments through Retailer. As provided byCUSTOMER, the Monthly fee and Setup Fee represents the distribution of POS datafrom SKY to CUSTOMER for the Vendor # and Brand listed in the “SKYPAD for Dillard’sUser Registration Page” and or “SKYPAD for Dillard’s Billing Form”. Anyadditional requests outside of these Vendor #s  may result in increased Monthly Fees and SetupFees. CUSTOMER will provide valid and updated credit card information as perthe “SKYPAD for Dillard’s Billing Form” provided to CUSTOMER by SKY, and byselecting the “Pay and Proceed to User Registration” button CUSTOMERauthorizes SKY to charge such credit card for all purchased services, includingbut not limited to, recurring Monthly Fees, and initial Setup Fee.

C.        3rdParty Reporting Partner Exclusivity

By subscribing to SKYPAD for Dillard’s, Supplieracknowledges and agrees that SKY is Supplier’s only authorizedthird-party sales and inventory reporting partner with respect to Dillard’sdata, and that no other third party may receive such dataduring the term of the subscription.

D.        Customizedservices

Services beyond the scope of this Agreement will be pricedby quotation and will be incorporated by reference into this Agreement as anadditional service and executed in writing by both parties.

E.       Term andTermination

The term of this Agreement will automatically renew eachmonth. CUSTOMER or SKY may terminate thisAgreement at any time with or without cause with thirty (30) days writtennotice. All fees incurred by the CUSTOMER prior to terminationwill be due and payable within fifteen (15) days after such termination per theapplicable invoices sent to CUSTOMER. In addition, SKY mayimmediately terminate this Agreement without notice if CUSTOMER failsto make payments as required herein.

F.       Service Levels andLiabilities

Execution and delivery of the Reporting Services by SKY isdependent on the availability, timely delivery, and accuracy of the underlyingelectronic Data from RETAILER and other sources. SKY shallnot be responsible for any delays in performance or inaccuracies in Data orReports that are due to the actions or inactions of the RETAILER orother sources in reporting the underlying Data. Except as specifically setforth herein, SKY makes no representation and warranty, andexpressly disclaims any liability with respect to the content of the ReportingServices, including but not limited to, libel, infringement of rights ofpublicity, privacy, trademark rights, moral rights, or the disclosure ofconfidential information. Except as expressly set forth herein, the ReportingServices are provided on an “as is” basis and SKY disclaimsany and all other warranties, conditions, or representations, express orimplied, including, without limitation, any warranties as to the completeness,reliability, suitability or merchantability or fitness for any particularpurpose of any Reporting Services furnished hereunder. You represent andwarrant that you are duly authorized and have the legal capacity to execute anddeliver this Agreement and bind CUSTOMER to its terms and conditions. In noevent will either party be liable for any lost or anticipated profits, or anyindirect, incidental, punitive, exemplary, special, or consequential damageshowever so caused and neither party’s liability arising or relating to thisAgreement shall exceed the amount of fees paid by CUSTOMER to SKY forthe preceding twelve (12) month period.

G.       Network Security

SKY follows industry standard best practices toensure high-level security and protection for CUSTOMER’s dataas well as its internal network.  SKY uses multiplesecure solutions for inbound and outbound traffic consisting of Private Linesand industry standard protocols including, but not limited to, secure FTP, SSLencryption. Traffic passing through high availability firewalls is monitored topermit communications only from verified CUSTOMER networks.Multiple spyware tools and industry standard virus protection software are usedthroughout the SKY domain to provide real time virusprotection for servers, workstations, and e-mail. Security updates areimplemented immediately to prevent newly found vulnerabilities and to ensure astable and secure network.

H.       Data Security

SKY assumes full responsibility for the actions of all SKY personnel,contractors or others having access to CUSTOMER Data whileperforming services under this Agreement, including but not limited to, datatheft, unauthorized distribution, duplication and/or data manipulation. SKY willuse secure transmission protocols using methods mutually acceptable to theparties engaged in the specific data or report exchange. SKY willexecute quality assurance protocols against the Data. The types of protocolswill depend upon the type of services provided. SKY and CUSTOMER agreeto follow the acceptable use policy of any network user or provider, includingthird-party networks, used to support this Agreement. SKY and CUSTOMER shallbe responsible for their own costs of any network provider with which itcontracts separately unless agreed otherwise.

I.       Data Accuracy

SKY will implement QC (Quality Control)processes consistent with industry practices to safeguard Data Accuracy. SKY willuse best efforts to provide to CUSTOMER, details pertaining to Dataelements as listed below. If Reports cannot be delivered to CUSTOMER dueto RETAILER’S failure to provide the requested Data, SKY willnotify CUSTOMER. SKY will not be held accountablefor Data that the RETAILER fails to transmit but will usereasonable efforts to procure from the RETAILER the data thatwas not transmitted. In the event SKY fails to provide Datathat was, in fact, transmitted by the RETAILER, CUSTOMER willnotify SKY of any such reporting deficiencies, and SKY willprovide to CUSTOMER within one business day of suchnotification a corrected Report at no additional charge to CUSTOMER.

J.       Confidentiality

All non-public information of a party acquired by the otherparty through the course of this Agreement, including Data and Reports receivedby CUSTOMER from SKY, will be confidential and will not be disclosed by thereceiving party to any third parties (other than its affiliates and personnel)except to the extent disclosed pursuant to law regulation, or court order, oras mutually agreed upon by the parties. Each party shall indemnify, defend, andhold harmless the other party and its affiliates and its and their respectiveofficers, directors, employees, and contractors from and against any and alllosses, claims, actions, liability, damages, costs, and expenses (includingreasonable attorneys’ fees) suffered or incurred by such other party that arisedirectly out of or relate to any claim that the receiving party  breached its confidentiality obligations withrespect to the Data and Reports.

K.        ForceMajeure

Neither party will be liable to the other party for anydelay, error, failure in performance, or interruption of performance resultingdirectly or indirectly from causes beyond that party’s reasonable control.

L.       Assignment:

Neither this Agreement nor any rights or obligationshereunder, may be assigned by either party without the prior written approvalof the non-assigning party. Notwithstanding the foregoing, either party mayassign this Agreement to a successor entity (including an acquirer of all orsubstantially all of such party’s assets, business or equity securities,whether by sale, merger or otherwise) or an entity that controls, is controlledby, or under common control with such party.

M.       Governing Law/Jurisdiction

This Agreement shall be construed, interpreted and enforcedin accordance with the laws of the State of Delaware, excluding the applicationof any principles of conflicts of laws which would cause the laws of any otherjurisdiction to apply. The parties hereby submit to the exclusive jurisdictionof the state and federal courts sitting in the state of Delaware, in the eventof any dispute arising hereunder. The parties waive the right to a jury trial.

N.      Publicity

CUSTOMER grants to SKY anon-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 thisAgreement (i.e., in providing the reporting services to CUSTOMER; any other useof CUSTOMER’s trademark, logo, or name is subject to prior written consent ofCUSTOMER in CUSTOMER’s sole discretion. 

O.       Notice

Any notice by either party to the other shall be in writingand shall be deemed to have been duly given only if

(a) delivered personally or (b) sent by registered mail orcertified mail, return receipt requested, in a postpaid envelope or (c) sent byrecognized overnight courier service such as Federal Express. Any notice sosent shall be deemed given upon its receipt or rejection as evidenced by a billof lading or return receipt or upon delivery if personally served.

P.       Entire Agreement

This Agreement, in addition to the Customer SpecificationForm, represents the entire agreement of the parties and supersedes the termsof any prior agreements, except to the extent that the terms of any prioragreements are expressly incorporated herein. This Agreement may not bemodified, unless such modification is in writing and signed by the authorizedagents of the parties.

 

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