DataMiner Cloud PLATFORM (DCP)
Terms of service
The DataMiner Cloud Platform (“DataMiner Cloud Platform”) is a cloud platform which provides a wide variety of supporting services as well as added-value software extension services for DataMiner monitoring and orchestration platforms (the “Purpose”).
These terms of service (the “Agreement”) govern the use of DataMiner Cloud Platform between, you, the user of DataMiner Cloud Platform (the “User”) and Skyline Communications NV, having its principal place of business at Ambachtenstraat 33, 8870 Izegem, Belgium (“Skyline”). User and Skyline are also individually referred to as a “Party” and collectively as the “Parties”.
It is important that you carefully read this Agreement before using DataMiner Cloud Platform.
By using DataMiner Cloud Platform (a) you are indicating that you have read and understood this Agreement, and agree to be legally bound by it on behalf of the company, government, or other entity for which you are acting (for example, as an employee or government official) or, if there is no company, government or other entity for which you are acting, on behalf of yourself as an individual; and (b) you represent and warrant that you have the authority to act on behalf of and bind such company, government or other entity (if any).
User agrees that this Agreement is like any written negotiated agreement signed by User. This Agreement is enforceable against User. If User does not agree to the terms of this Agreement, User may not use DataMiner Cloud Platform.
1. Grant of rights
Skyline hereby grants to User, who accepts, a personal, non-transferable, non-exclusive right to access and use DataMiner Cloud Platform, only as authorized in this Agreement. The scope of User’s right to access and use DataMiner Cloud Platform depends on User’s level of subscription, as set out in art. 4 of the Agreement.
2. User responsibilities
2.1. Acceptable Use. User shall comply with Skyline’s Acceptable Use Policy (“AUP”) set-out in Annex A to this Agreement. User shall not:
(a) use DataMiner Cloud Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit DataMiner Cloud Platform;
(b) provide DataMiner Cloud Platform passwords or other log-in information to any third party;
(c) share non-public DataMiner Cloud Platform features, services or content with any third party;
(d) access DataMiner Cloud Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of DataMiner Cloud Platform, or to copy any ideas, features, functions or graphics of DataMiner Cloud Platform; or
(e) engage in web scraping or data scraping on or related to DataMiner Cloud Platform, including without limitation collection of information through any software that simulates human activity or any bot or web crawler.
In the event that it suspects any breach of the requirements of this Section 2.1, Skyline may suspend User’s access to DataMiner Cloud Platform without advanced notice, in addition to such other remedies as Skyline may have. Neither this Agreement nor the AUP requires that Skyline take any action against User or other third party for violating the AUP, this Section 2.1., or this Agreement, but Skyline is free to take any such action it sees fit.
User is responsible and liable for: (a) User’s use of DataMiner Cloud Platform, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to User; and (b) any use of DataMiner Cloud Platform through User’s account, whether authorized or unauthorized.
2.2. Unauthorized Access. User shall take reasonable steps to prevent unauthorized access to DataMiner Cloud Platform, including without limitation by protecting its passwords and other log-in information. User shall notify Skyline immediately of any known or suspected unauthorized use of DataMiner Cloud Platform or breach of its security and shall use best efforts to stop said breach.
2.3. Compliance with Laws. In its use of DataMiner Cloud Platform, User shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of User Data.
3.1. Confidential Information. User recognizes that DataMiner Cloud Platform is proprietary and confidential property of Skyline. Accordingly, User shall not, without the prior express written consent of Skyline during the term of this Agreement, disclose or reveal to any third party or utilize for its own benefit other than pursuant to this Agreement, any information provided by Skyline Communications concerning DataMiner Cloud Platform, provided that such information was not previously known to User or to the general public. User agrees to only use DataMiner Cloud Platform for the Purpose only. User shall take all reasonable precautions to preserve the confidentiality of Skyline Communications’ DataMiner Cloud Platform and shall assume responsibility that its employees and assignees will similarly preserve this information against third parties. The provisions of this clause shall survive termination of this Agreement.
4.1. Free Subscription. By default, User will have access to free services only on the DataMiner Cloud Platform (“Free Subscription”).
4.2. Paid Subscription. If User wishes to access paid services on the DataMiner Cloud Platform, User needs to possess a valid paid subscription to access and use such services (a “Paid Subscription”). To obtain a Paid Subscription, User shall issue to Skyline a written purchase order to obtain a DataMiner Cloud Platform Paid Subscription in accordance with the scope and commercial terms and conditions that have been agreed between the Parties (the “Order”).
5. Intellectual property and feedback
5.1. IP Rights. Skyline retains all rights and title in and to DataMiner Cloud Platform, including without limitation all software used to provide DataMiner Cloud Platform and all graphics, user interfaces, logos, and trademarks reproduced through DataMiner Cloud Platform. Except as expressly stated herein, this agreement does not grant User any rights in DataMiner Cloud Platform. User recognizes that DataMiner Cloud Platform and its components are protected by copyright and other laws.
5.2. Feedback. Skyline has not agreed to and does not agree to treat as confidential any Feedback (as defined below) User provides to Skyline, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Skyline’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting User. Notwithstanding the provisions of Article 3 above, Feedback will not be considered Confidential Information. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Skyline’s products or services.
6. Representations and warranties
6.1. From Skyline. Skyline represents and warrants that it is the owner of DataMiner Cloud and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights set forth in this Agreement without the further consent of any third party. In the event of a breach of the this Section 8.1, Skyline, at its own expense, shall promptly take the following actions: (a) secure for User the right to continue using DataMiner Cloud Platform; (b) replace or modify DataMiner Cloud Platform to make it non-infringing; or (c) terminate the infringing features of DataMiner Cloud Platform and refund to User any prepaid fees for such features, if any, in proportion to the portion of the Subscription term left after such termination. In conjunction with User’s right to terminate for breach where applicable, the preceding sentence states Skyline’s sole obligation and liability, and User’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by DataMiner Cloud Platform.
6.2. From User. User represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through DataMiner Cloud Platform; and (c) it is a corporation, sole proprietorship or another entity authorized to do business pursuant to applicable law.
6.3. Warranty Disclaimers. Except to the extent set forth in this Section 8.1 above, User accepts DataMiner Cloud Platform “as is” and as available, with no representation or warranty of any kind, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, or noninfringement of intellectual property rights, or any implied warranty. Without limiting the generality of the foregoing: (a) Skyline has no obligation to indemnify or defend User against claims related to infringement of intellectual property; (b) Skyline does not represent or warrant that DataMiner Cloud Platform will perform without interruption or error; and (c) Skyline does not represent or warrant that DataMiner Cloud Platform is secure from hacking or other unauthorized intrusion or that User data will remain private or secure.
6.4. Free Subscription. Notwithstanding anything to the contrary in this Agreement, Skyline does not provide any representations or warranty of any kind, express or implied to Free Subscription Users of DataMiner Cloud Platform. The DataMiner Cloud Platform is provided to Free Subscription Users “as is”.
7. Limitation of liability.
7.1. Definitions. The term “Direct damage” shall mean any amounts that are paid by Skyline for the delivery of any malfunctioning software or the execution of the damaging services, as well as the amounts paid to Skyline or a third party for the remediation of the culpable shortcoming. The term “Indirect damage” shall mean, and the following list is not exhaustive: any form of consequential damage, loss of profit, financial or commercial losses, loss of savings, increase in general expenses, increases in personnel costs, loss of goodwill, loss caused by business interruption, damages caused by claims of customers of the User, damage relating to the use of articles, materials or software of third parties suggested by Skyline to the User, and damage relating to the engagement by the User of suppliers suggested by Skyline, damage caused by the disruption of the schedule and the loss of customers, loss of an opportunity, image and brand damages, etc.
7.2. Direct Damage. The total liability of Skyline for Direct damage due to a grave or minor culpable shortcoming, including any shortcoming in the fulfilment of the warranty obligations agreed with the User, if any, shall be limited to the compensation of the Direct damage, subject to the maximum of the amounts actually invoiced and paid for under this Agreement (exclusive of VAT) by User to Skyline during the year the Direct damage occurred.
7.3. Indirect Damage. The liability of Skyline for Indirect damage due to a grave or minor culpable shortcoming is expressly excluded, and so is the liability of Skyline on the grounds of damage, destruction or loss of data or documents. Insofar as such exclusion is regarded as impermissible (whether under the law or otherwise) under the prevailing legal system, the total compensation payable by Skyline shall be limited to the maximum of the amounts actually invoiced and paid for by User to Skyline under this Agreement during the year the Indirect damage occurred (exclusive of VAT).
7.4. Liability Cap. In no case shall the total liability of Skyline for any financial damage whatsoever for grave or minor shortcomings exceed € 50.000,00. The total liability of Skyline for damage in the form of material damage to assets shall never exceed € 250,000.00.
7.5. Other Exclusions. The exclusions and limitations of liability of Skyline, as contained in the Clauses 9.1 to 9.4, do not prejudice to any extent any other lower limitations on damages or exclusions of liability under alternative arrangements, if any, between the Parties. The User is aware that the limitations on damages or liability agreed between the Parties, are essential to the amount of the agreed fees and prices, and the practical modalities of cooperation between the Parties.
7.6. Not Excluded. The exclusions and limitations on liability specified in Clauses 9.1 to 9.4 shall not apply if and insofar as such damage is the result of an intentional act of Skyline.
7.7. Free Subscription Users. To the broadest possible extent permissible under the applicable law, Skyline disclaims all liability towards Free Subscription Users.
8. Term and termination
8.1. Term. This Agreement is effective as of the date User clicks “Accepted and Agreed To” (the “Effective Date”). The term of this Agreement (the “Term”) will commence on the Effective Date and continue for as long as the User has access to, or uses, DataMiner Cloud Platform. An active Subscription shall terminate after the period set forth in the applicable Order.
8.2. Material Breach. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
8.3. Effects of Termination. Upon termination of this Agreement the rights granted in art. 1 shall terminate, and User shall cease all use of DataMiner Cloud Platform. The provisions on confidentiality will survive termination of this Agreement, as well as any other provision of this Agreement that must survive to fulfil its essential purpose.
8.4 Free Subscription Users. Notwithstanding the foregoing, applicable to Free Subscription Users only, Skyline may unilaterally terminate this Agreement and all rights granted hereunder at any time, without prior notice or justification.
9.1. Publicity. User agrees that Skyline may publish a brief description describing User its deployment of DataMiner Cloud Platform and identify User as a User of Skyline’s products and services on any of Skyline Communications’ websites, client lists, press releases, and/or other marketing materials.
10. Data protection
10.1. User Data. The term “User Data” means data in electronic form input or collected through DataMiner Cloud Platform by or from User. Unless it receives User’s prior written consent, Skyline: (a) shall not access, process, or otherwise use User Data other than as necessary to facilitate DataMiner Cloud Platform; and (b) shall not intentionally grant any third party access to User Data, including without limitation other DataMiner Cloud Platform users. Notwithstanding the foregoing, Skyline may disclose User Data as required by applicable law or by proper legal or governmental authority. Skyline shall give User prompt notice of any such legal or governmental demand and reasonably cooperate with User in any effort to seek a protective order or otherwise to contest such required disclosure, at User’s expense. As between the parties, User retains ownership of User Data.
10.2. Risk of Exposure. User recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using DataMiner Cloud Platform, User assumes such risks. Skyline offers no representation, warranty, or guarantee that User Data will not be exposed or disclosed through errors or the actions of third parties.
10.3. Data Accuracy. Skyline will have no responsibility or liability for the accuracy of data uploaded to DataMiner Cloud Platform by User, including without limitation User Data and any other data uploaded.
10.4. Data Deletion. Skyline may permanently erase User Data if User’s account is delinquent, suspended, or terminated for 30 days or more.
10.5. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 12, Skyline may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. The term “Aggregate Data” refers to User Data with the following removed (if any): personally identifiable information and the names and addresses of User and any of its users or customers.
11. Miscellaneous Provisions
11.1. Entire Agreement. This Agreement contains the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces all prior agreements or understandings, including but limited to any supply agreements, partnership agreements, memorandums of understanding, letters of intents, if any, written or oral, with respect to the same subject matter still in force between the Parties.
11.2. Amendment. Any amendment to this Agreement, as well as any addition or omissions, can only be agreed in writing with the mutual consent of and duly signed by the Parties.
11.3. Assignment. User may not assign this Agreement or any of its rights or obligations hereunder without Skyline’s express written consent. Except to the extent forbidden in this Section 13.3., this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
11.4. Severability. Whenever possible, the provisions of this Agreement shall be interpreted in such a manner as to be valid and enforceable under applicable law. However, if one or more provisions of this Agreement is found to be invalid, illegal or unenforceable, in whole or in part, the remainder of any such provision and of this Agreement shall not be affected and shall continue in full force and effect as if the invalid, illegal or unenforceable provision had never been contained herein. Moreover, if the Parties decide to amend the invalid, illegal or unenforceable provision(s) or any part thereof and/or agree on a new provision, they should take care that the new or amended provision embodies as closely as possible the purpose of the invalid, illegal or unenforceable provision(s).
11.5. No Waiver. Any failure or delay by either Party in exercising any right under this Agreement, the exercise, in whole or in part, of any right under this Agreement, or any reaction or absence of reaction by either Party in the event of violation by the other Party of one or more provisions of this Agreement shall not operate or be interpreted as a waiver (whether express or implied, in whole or in part) of any of its rights under this Agreement or under said provision(s), nor shall it preclude the further exercise of any such rights. Any waiver of a right must be express and in writing. If one Party has expressly waived a right in writing following a specific failure by the other Party, this waiver cannot be invoked by the latter Party in favour of a new failure, similar to the previous one, or any other failure.
11.6. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, pandemics, other acts of nature, strikes or other labour disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
12. Applicable law and jurisdiction
12.1. Choice of Law. All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of this Agreement as well as all tort matters and extra-contractual liability between the Parties, shall be governed by and construed in accordance with Belgian law, without giving effect to any other choice of law or conflict-of-laws rules or provisions (Belgian, foreign or international), that would cause the laws of any jurisdiction other than Belgium to be applicable. The United Nations Convention on Contracts for the International Sale of Goods (1980) (“Vienna Convention”) is not applicable between Parties.
12.2. Jurisdiction. Any dispute concerning the validity, interpretation, enforcement, performance or termination of this Agreement as well as any dispute on a tort or any other extra-contractual matter shall be submitted to the exclusive jurisdiction of the competent courts of Gent, division Kortrijk, Belgium. However, before initiating any legal proceedings, the Parties will negotiate in good faith in order to settle their dispute out of court.
Annex1: Acceptable Use Policy
Latest update: July 1st, 2020.
A. Unacceptable Use
Skyline requires that all users of Skyline Cloud conduct themselves with respect for others. In particular, observe the following rules in your use of Skyline Cloud:
1) Abusive Behaviour: Do not harass, threaten, or defame any person or entity. Do not contact any person who has requested no further contact. Do not use ethnic or religious slurs against any person or group.
2) Privacy: Do not violate the privacy rights of any person. Do not collect or disclose any personal address, social security number, or other personally identifiable information without each holder’s written permission. Do not cooperate in or facilitate identity theft.
3) Intellectual Property: Do not infringe upon the copyrights, trademarks, trade secrets, or other intellectual property rights of any person or entity. Do not reproduce, publish, or disseminate software, audio recordings, video recordings, photographs, articles, or other works of authorship without the written permission of the copyright holder.
4) Hacking, Viruses, & Network Attacks: Do not access any computer or communications system without authorization, including the computers used to provide Skyline Cloud. Do not attempt to penetrate or disable any security system. Do not intentionally distribute a computer virus, launch a denial of service attack, or in any other way attempt to interfere with the functioning of any computer, communications system, or website. Do not attempt to access or otherwise interfere with the accounts of other users of Skyline Cloud.
5) Spam: Do not send bulk unsolicited messages or e-mails (“Spam”) or sell or market any product or service advertised by or connected with Spam. Do not facilitate or cooperate in the dissemination of Spam in any way.
6) Fraud: Do not issue fraudulent offers to sell or buy products, services, or investments. Do not mislead anyone about the details or nature of a commercial transaction. Do not commit fraud in any other way.
7) Violations of Law: Do not violate any law.
B. Consequences of Violation
Violation of this Acceptable Use Policy (this “AUP”) may lead to suspension or termination of the user’s account or legal action. In addition, the user may be required to pay for the costs of investigation and remedial action related to AUP violations. Skyline reserves the right to take any other remedial action it sees fit.
C. Reporting Unacceptable Use
Skyline requests that anyone with information about a violation of this AUP report it via e-mail to the following address: firstname.lastname@example.org. Please provide the date and time (with time zone) of the violation and any identifying information regarding the violator, including e-mail or IP (Internet Protocol) address if available, as well as details of the violation.
D. Revision of AUP
Skyline may change this AUP at any time by posting a new version on this page and sending the user written notice thereof. The new version will become effective on the date of such notice.