Terms of Use

Last Updated: December 16, 2022

THIS TERMS OF USE AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF ANY WEB SITE, MOBILE APPLICATION OR RELATED SERVICE (COLLECTIVELY, THE “SERVICE”) MADE AVAILABLE BY SKYSELECT, INC. (“SKYSELECT” OR “WE”). BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR OTHERWISE USING THE SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT WITH SKYSELECT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU, AS THE “USER”, HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.

IMPORTANT NOTES:

SKYSELECT DOES NOT PROVIDE WARRANTIES OR INDEMNITIES FOR THE SERVICE, AND THESE TERMS LIMIT SKYSELECT'S LIABILITY TO YOU.
DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR THE SERVICE MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.

Application and Acceptance of Terms and Conditions

For purposes of this Agreement, a “User” is any person who accesses the Service for any purpose and has registered on the Service as a registered User. A User includes the person using this Service and any legal entity which may be represented by such person under actual or apparent authority.

By accessing or using the Service, you hereby agree to accept the terms and conditions set forth in this Agreement as a User. You shall be bound by the terms and conditions of this Agreement with respect to your access or use of this Service and any further upgrade, modification, addition or change to this Service. If you do not accept all of the terms and conditions of this Agreement, please do not use this Service.

SkySelect may revise this Agreement at any time by posting the revised terms on the Service. Unless SkySelect says otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. Your continued use of the Service shall be deemed to be acceptance of the revised terms. This Agreement may not otherwise be modified, except in writing by an authorized officer of SkySelect.

Services

SkySelect reserves the right in its sole discretion to restrict or deny service to any User for whatever reason in order to protect the interests of SkySelect.

Free Trials

If we make available any Service that is not made generally available to our customers, or has been designated by us as beta, limited release, developer preview, development or test bed environments, or by descriptions of similar import, or under a free trial designation (“Free Trial Service”), then you may use the Free Trial Service for evaluation purposes only, and you acknowledge that the Free Trial Service is not supported and may be subject to additional terms as communicated to you.

Users Generally

Users may use this Service solely for their own personal or internal purposes. Each User agrees that it shall not copy, reproduce or download any information, text, images, video clips, directories, files, databases or listings available on or through the Service (the "SkySelect Content”) for the purpose of re-selling, re-distributing or re-publishing the SkySelect Content, mass mailing (via emails, wireless text messages, physical mail or otherwise), operating a business that competes with SkySelect, or otherwise commercially exploiting the SkySelect Content. Systematic retrieval of SkySelect Content from this Service to create or compile, directly or indirectly, a collection, compilation, database or directory (whether through robots, spiders, automatic devices or manual processes) without written permission from SkySelect is prohibited. In addition, use of the content or materials for any purpose not expressly permitted in this Agreement is prohibited.

Some of the SkySelect Content displayed on this Service is provided or posted by third parties (“Third Party Content”). SkySelect is not the author of Third-Party Content, whether contributed by Users or paid content providers. Any Third Party Content is the sole responsibility of the party who provided the content. SkySelect is not responsible for the accuracy, propriety, lawfulness or truthfulness of any Third Party Content, and shall not be liable to any User in connection with such User’s reliance of such Third Party Content. In addition, SkySelect is not responsible for the conduct of any User’s activities on the Service, and shall not be liable to any person in connection with any damage suffered by any person as a result of such User’s conduct.

SkySelect may allow Users to access content, products or services offered by third parties through hyperlinks (in the form of word link, banners, channels or otherwise) to such third parties’ web sites. You are cautioned to read such sites’ terms and conditions and/or privacy policies before using such sites in order to be aware of the terms and conditions of your use of such sites. User acknowledges that SkySelect has no control over such third parties’ web sites, does not monitor such sites, and SkySelect shall not be responsible or liable to anyone for such web sites, or any content, products or services made available on such websites.

Messages or information sent by a User through communication systems provided by the Service, or through emails, fax or letters to addressees obtained from the Service, shall not contain any of the materials described in the provisions of Section “Users Who Post Information on the Service” below.

SkySelect reserves the right to limit, deny or create different access to and use of the Service and its features and functions with respect to different Users, or to change any of the features and functions or introduce new features and functions without prior notice. Each User acknowledges that inability to use the Service wholly or partially for whatever reason may have adverse effects on its business. Each User hereby agrees that in no event shall SkySelect be liable to the User or any third parties for any inability to use the Service (whether due to disruption, limited access, changes to or termination of any features on the Service or otherwise), any delays, inaccuracies, errors or omissions with respect to any communications or transmission, or any damage (direct, indirect, consequential or otherwise) arising from the use of or inability to use the Service or any of its features.

No User shall undertake any scheme to undermine the integrity of the computer systems or networks used by SkySelect and/or any other User and no User shall attempt to gain unauthorized access to such computer systems or networks. No User may take any action which may undermine the integrity of SkySelect's feedback system, such as leaving positive feedback for himself using secondary User IDs or through third parties or by leaving unsubstantiated negative feedback for another User.

We urge that you read SkySelect's Privacy Policy which governs the protection and use of personal information in the possession of SkySelect and/or its affiliates. Each individual User hereby accepts the Privacy Policy and any updates and amendments thereto. Each User acknowledges that SkySelect may change the Privacy Policy from time to time provided that SkySelect shall make available the updated version of the Privacy Policy on the Service at all times. Your continuation of use of the Service shall be deemed to be your acceptance of the Privacy Policy which is then displayed on the Service at the time of such use.

As a condition of your access to and use of SkySelect, you agree that you will not use the SkySelect services to infringe the intellectual property rights or other legitimate rights of others in any way. For Users who are the subject of repeat complaints of infringement on copyrights or other intellectual property rights and legitimate rights of others, SkySelect and/or its affiliates may suspend or terminate the accounts of these Users.

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. SkySelect will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to SkySelect's Copyright Agent at corporate@skyselect.com (subject line: “DMCA” Takedown Request”). You may also contact us by mail or facsimile at:

Attention:

Copyright Manager
SkySelect, Inc.
530 Divisadero St.
PMB 859
San Francisco, CA 94117
Phone: +14159911185
Email: corporate@skyselect.com

Notice: To be effective, the notification must be in writing and contain the following information:

an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.

In addition, SkySelect and/or its affiliates reserves the right to terminate the account of a User upon any single infringement of the rights of others in conjunction with use of the SkySelect services, or if SkySelect believes that User’s conduct is harmful to the interests of SkySelect, its affiliates, or other users, or for any other reason in SkySelect's sole discretion, with or without cause.

Registered Users

Each User who has completed and submitted a registration form online on the Service is a registered user of the Service (a “Registered User”). An account (“Account”) will be established for each Registered User and each Registered User will be assigned a user alias (“User ID”) and password (“Password”) for log-in access to its own Account.

If the Registered User is a business entity, you represent that (a) you have the authority to bind the entity to this Agreement; (b) the address you use when registering is the principal place of business of such business entity; and (c) all other information submitted to SkySelect and its affiliates during the registration process is true, accurate, current and complete. By becoming a Registered User, you consent to the inclusion of your personal data in our database and authorize SkySelect and its affiliates to share such information with other Users. SkySelect can refer to any Registered User, including business entity, on the Service and in other marketing materials used to promote the Service.

SkySelect or its affiliates may impose the limitations on or suspend or terminate the use of a Registered User’s Account at any time by giving no less than 24-hour notice to the Registered User; provided, however, that notice is not required for such termination if (a) in SkySelect's determination, there is any breach of the provisions of this Agreement or other terms, rules and policies for the uses of any services on a Service by the Registered User; or (b) SkySelect has reasonable grounds to suspect that any information provided by a Registered User is untrue, inaccurate or is not current or complete, or (c) SkySelect believes that the Registered User’s actions may cause financial loss or legal liability to such Registered User, SkySelect's other Users, or SkySelect or its affiliates. If the Registered User is in breach of any provisions of this Agreement or other terms, rules and policies for uses of any services of a Service, SkySelect also reserves the right to publish the records of such breach on a Service. If such breach involves any dishonest or fraudulent activities, SkySelect also reserves the right to disclose the records of such breach to its affiliates and to request such affiliate to impose limitations on, suspect or terminate the Registered User’s use of all or part of the services provided by such affiliates and to take other remedial actions such as to publish the records of such breach on the websites operated by or controlled by SkySelect's affiliates.

SkySelect may at any time, in its reasonable discretion, impose limitations on, suspend or terminate the use of a Registered User’s Account without being liable to the Registered User if the Registered User is in breach of any agreement or undertaking with any affiliate of SkySelect upon written notice to such Registered User and such breach involves dishonest or fraudulent activities. SkySelect shall have the right to publish the records of such breach on a Service. SkySelect shall not be required to investigate such breach or request confirmation from the Registered User.

A Registered User may not sell, attempt to sell, offer to sell, give, assign or otherwise transfer an Account, User ID or Password to a third party without the prior written consent of SkySelect. SkySelect may suspend or terminate the Account of a Registered User or the transferee of a Registered User in the event of a sale, offer to sell, gift, assignment or transfer in violation of this Section.

Notwithstanding this “Registered Users” Section, SkySelect may refuse registration and deny the issuance of an Account and associated User ID and Password to any User for whatever reason.

Data from Third Party Sites

Registered Users use SkySelect to retrieve data maintained online by third parties with which they have customer relationships, maintain accounts or engage in e-commerce transactions (“Account Information”). SkySelect may work with one or more online marketplaces to access this data. You agree to provide SkySelect with credentials necessary to retrieve information on your behalf from such third parties (“Access Information”), and you hereby grant SkySelect permission to use the Access Information and Account Information your behalf for the purposes contemplated by this Agreement. You represent and warrant you have the right and ability to provide any such Access Information. You understand that SkySelect does not review the data for accuracy, legality or non-infringement but instead is directed by its Registered Users. SkySelect is not responsible for the data, content, products or services offered by or on third party sites, and does not guarantee that any such third party sites will continue to be made available within the Service; such sites may be removed or disabled by us at any time without notice to you. You acknowledge and agree that the Service may not be sponsored or endorsed by the third party sites accessible through the Service.

SkySelect cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings or other service interruptions. SkySelect cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings. For example, when displayed through the Bids view, part information is only as fresh as the time shown, which reflects when the information is obtained from such sites. Such information may be more up-to-date when obtained directly from the relevant sites. You can refresh your third-party site credentials through your Account settings.

Fees and Payment

You may be required to purchase or pay a fee to access certain portions of the Service. You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Service. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. We bill you through an online billing account for purchases made via the Service. Sales tax may be added to the price of purchases as deemed required by us. We may change prices at any time. All payments shall be in U.S. dollars.

You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorize us to charge your chosen payment provider for any such amounts upon making your purchase.

We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed through the Service.

Users Who Post Information on the Service

You must be a Registered User in order to post information on the Service using the self-help submit and edit tools provided through the Service. Your status as a Registered User is governed by the provisions of Section “Registered Users” above.

No sales agency relationship is created between any User and SkySelect, or our affiliates, directors, officers or employees, by virtue of SkySelect's display of any of the User’s information on the Service.

Each User hereby represents, warrants and covenants that it will (a) provide SkySelect with true, accurate, current and complete information to be displayed on the Service and (b) maintain and promptly update all information to keep it true, accurate, current and complete. Each User hereby grants an irrevocable, perpetual, worldwide and royalty-free, sublicensable (through multiple tiers) license to SkySelect to display and use all information provided by such User in accordance with the purposes set forth in this Agreement and to exercise the copyright, publicity, and database rights such User has in such material or information, in any media now known or not currently known.

Each User hereby represents, warrants and agrees that it has obtained all necessary third party copyright, trademark, trade secrets or patent licenses and permissions, or such other licenses or permissions as may be required in connection with any other personal or proprietary rights of any third party (including but not limited to rights of personality and rights of privacy), for any material or information it posts on the Service or provides to SkySelect or authorizes SkySelect to display. Third party copyrights, trademarks, trade secret rights, patents and other personal or proprietary rights affecting or relating to material or information displayed on the Service, or affecting or relating to products that are offered or displayed on the Service, including but not limited to rights of personality and rights of privacy, are hereafter referred to as “Third Party Rights.” Each User hereby represents, warrants and agrees that it shall be solely responsible for ensuring that any material or information it posts on the Service or provides to SkySelect or authorizes SkySelect to display does not, and that the products represented thereby do not, violate any Third Party Rights, and/or are posted with the permission of the owner(s) of such rights. Each User hereby represents, warrants and agrees that it has the right to manufacture, offer, sell, import, export and distribute the products it offers and displays on the Service, and that such manufacture, offer, sale, importation, export and/or distribution of those products violates no Third Party Rights.

Each User hereby represents, warrants and agrees that information submitted to SkySelect for display on the Service shall not:

contain fraudulent information or make fraudulent offers of items or involve the sale or attempted sale of counterfeit or stolen items or items whose sales and/or marketing is prohibited by applicable law, or otherwise promote other illegal activities;
be part of a scheme to defraud other Users of the Service or for any other unlawful purpose;
relate to sale of products or services that infringe or otherwise abet or encourage the infringement or violation of any third party’s copyright, patent, trademarks, trade secret or other proprietary right or rights of publicity or privacy, or any other Third Party Rights;
impersonate any person or entity, misrepresent yourself or your affiliation with any person or entity;
violate any applicable law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
be defamatory, libelous, unlawfully threatening or unlawfully harassing;
be obscene or contain or infer any pornography or sex-related merchandising or any other content or otherwise promotes sexually explicit materials or otherwise be harmful to minors;
promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
contain any material that constitutes unauthorized advertising or harassment (including but not limited to spamming), invades anyone’s privacy or encourages conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any law or regulation;
solicit business from any Users in connection with a commercial activity that competes with SkySelect;
contain any computer viruses or other destructive devices and codes that have the effect of damaging, interfering with, intercepting or expropriating any software or hardware system, data or personal information;
link directly or indirectly to or include descriptions of goods or services or other materials that violate any law or regulation or are prohibited under this Agreement;
otherwise create any liability for SkySelect or its affiliates.

SkySelect reserves the right in its sole discretion to remove any material displayed on the Service which it reasonably believes is unlawful, could subject SkySelect and its affiliates to liability, violates this Agreement or is otherwise found inappropriate in SkySelect's opinion. SkySelect reserves the right to cooperate fully with governmental authorities, private investigators and/or injured third parties in the investigation of any suspected criminal or civil wrongdoing. Furthermore, SkySelect may disclose the User’s identity and contact information, if requested by a government or law enforcement body, an injured third party, or as a result of a subpoena or other legal action, and SkySelect shall not be liable for damages or results thereof and User agrees not to bring any action or claim against SkySelect for such disclosure. In connection with any of the foregoing, SkySelect may suspend or terminate the Account of any User as SkySelect deems appropriate in its sole discretion. User agrees that SkySelect shall have no liability to User, including no liability for consequential or any other damages, in the event SkySelect takes any of the actions mentioned in this Section, and that User agrees to bear the risk that SkySelect may take such actions.

Transactions between Buyers and Suppliers

Through the Service, SkySelect provides an electronic web-based platform for exchanging information. SkySelect does not represent the seller or the buyer in specific transactions if such transactions are made on the Service. SkySelect does not control and is not liable to or responsible for the quality, safety, lawfulness or availability of the products or services offered on the Service.

Users are hereby made aware that there may be risks of dealing with people acting under false pretenses. SkySelect uses several techniques to verify the accuracy of the information our users provide us when they register on the Service. However, because user verification on the Internet is difficult, SkySelect cannot and does not confirm each User’s purported identity. We encourage you to use the various tools available on the Service, as well as common sense, to evaluate with whom you are dealing.

Each User acknowledges that it is fully assuming the risks of purchase and sale transactions when using the Service to conduct transactions, and that it is fully assuming the risks of liability or harm of any kind in connection with subsequent activity of any kind relating to products or services that are the subject of transactions using the Service. Such risks shall include, but are not limited to, mis-representation of products and services, fraudulent schemes, unsatisfactory quality, failure to meet specifications, defective or dangerous products, and unlawful products. Such risks also include the risks that the manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products or services offered or displayed on the Service may violate or may be asserted to violate Third Party Rights, and the risk that User may incur costs of defense or other costs in connection with third parties’ assertion of Third Party Rights, or in connection with any claims by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by Third Party Rights claimants. Such risks also include the risks that consumers, other purchasers, end-users of products or others claiming to have suffered injuries or harms relating to products originally obtained by Users of the Service as a result of purchase and sale transactions in connection with using the Service may suffer harms and/or assert claims arising from their use of such products. All of the foregoing risks are hereafter referred to as “Transaction Risks”. Each User agrees that SkySelect shall not be liable or responsible for any damages, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any Transaction Risks.

Users are solely responsible for all of the terms and conditions of the transactions conducted on, through or as a result of use of the Service.

In the event that any User has a dispute with any party to a transaction, such User agrees to release and indemnify SkySelect (and our agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such transaction.

Transactions between Buyers and Suppliers

Each User acknowledges that it is fully assuming the risks of purchase and sale transactions when using the Service to conduct transactions, and that it is fully assuming the risks of liability or harm of any kind in connection with subsequent activity of any kind relating to products or services that are the subject of transactions using the Service. Such risks shall include, but are not limited to, mis-representation of products and services, fraudulent schemes, unsatisfactory quality, failure to meet specifications, defective or dangerous products, unlawful products. Such risks also include the risks that the manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products or services offered or displayed on the Service may violate or may be asserted to violate Third Party Rights, and the risk that User may incur costs of defense or other costs in connection with third parties’ assertion of Third Party Rights, or in connection with any claims by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by Third Party Rights claimants. Such risks also include the risks that consumers, other purchasers, end-users of products or others claiming to have suffered injuries or harms relating to product originally obtained by Users of the Service as a result of purchase and sale transactions in connection with using the Service may suffer harms and/or assert claims arising from their use of such products. All of the foregoing risks are hereafter referred to as “Transaction Risks”. Each User agrees that SkySelect shall not be liable or responsible for any damages, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any Transaction Risks.

Users are solely responsible for all of the terms and conditions of the transactions conducted on, through or as a result of use of the Site.

Data Use

You agree that it you shall provide to SkySelect purchasing data as necessary for SkySelect to provide the Services (the “User Data”).

You grant SkySelect a worldwide, non-exclusive, royalty-free, fully paid up, sublicensable license to (a) copy, use, modify, distribute and display User Data to the extent necessary for SkySelect to provide the Services, (b) otherwise copy, use, modify, distribute and display User Data on an aggregate and/or anonymized basis, and (c) otherwise copy, modify and use the User Data in connection with internal operations and functions, including but not limited to, operational analytics and reporting, internal financial reporting and analytics, audit functions, archival purposes and to improve the processes related to the Services, including but not limited to (i) creating benchmark data or metadata to allow SkySelect to compare pricing and delivery performance, and (ii) for purposes of negotiating agreements with suppliers. SkySelect will share benchmarks and supplier performance metrics with the Registered User.

SkySelect will implement and maintain reasonable administrative, physical and technical safeguards that attempt to prevent any collection, use or disclosure of, or access to User Data that this Agreement does not expressly authorize, including without limitation any information security program that meets commercially reasonable industry practice to safeguard User Data.

Governing Law

These Terms of Use and your use of the Service are governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without regard to its conflict of law principles.

Disclaimers; Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL FEATURES AND COMPONENTS OF THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND SKYSELECT HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, SKYSELECT MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE VALIDITY, ACCURACY, CORRECTNESS, RELIABILITY, QUALITY, STABILITY, COMPLETENESS OR CURRENTNESS OF ANY INFORMATION PROVIDED ON OR THROUGH THE SERVICE, SKYSELECT DOES NOT REPRESENT OR WARRANTY THAT THE MANUFACTURE, IMPORTATION, EXPORT, DISTRIBUTION, OFFER, DISPLAY, PURCHASE, SALE AND/OR USE OF PRODUCTS OR SERVICES OFFERED OR DISPLAYED ON THE SERVICE DO NOT VIOLATE ANY THIRD PARTY RIGHTS; AND SKYSELECT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING ANY PRODUCT OR SERVICE OFFERED OR DISPLAYED ON THE SERVICE.

SKYSELECT SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES, COSTS, LOSSES OR LIABILITIES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR SAVINGS, BUSINESS INTERRUPTION OR LOSS OF INFORMATION), WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, OR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU TO SKYSELECT IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ANY CLAIM RESULTING FROM ANY OF THE FOLLOWING:

THE USE OR THE INABILITY TO USE THE SERVICE;
ANY DEFECT IN GOODS, SAMPLES, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED FROM A USER OR A THIRD-PARTY SERVICE PROVIDER THROUGH THE SERVICE;
VIOLATION OF THIRD PARTY RIGHTS OR CLAIMS OR DEMANDS THAT A USER’S MANUFACTURE, IMPORTATION, EXPORT, DISTRIBUTION, OFFER, DISPLAY, PURCHASE, SALE AND/OR USE OF PRODUCTS OR SERVICES OFFERED OR DISPLAYED ON THE SERVICE MAY VIOLATE OR MAY BE ASSERTED TO VIOLATE THIRD PARTY RIGHTS; OR CLAIMS BY ANY PARTY THAT IT IS ENTITLED TO DEFENSE OR INDEMNIFICATION IN RELATION TO ASSERTIONS OF RIGHTS, DEMANDS OR CLAIMS BY THIRD PARTY RIGHTS CLAIMANTS;
UNAUTHORIZED ACCESS BY THIRD PARTIES TO DATA OR PRIVATE INFORMATION OF ANY USER; OR
STATEMENTS OR CONDUCT OF ANY USER OF THE SERVICE;

IF YOU ARE A USER FROM NEW JERSEY, THIS SECTION ENTITLED “DISCLAIMERS; LIMITATION OF LIABILITY” IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION OR THIS AGREEMENT.

Any material downloaded or otherwise obtained through the Service is done at each User’s sole discretion and risk and each User is solely responsible for any damage to its computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by any User from SkySelect or through or from the Service shall create any warranty.

The Service may make available to User services or products provided by independent third parties. No warranty or representation is made with regard to such services or products. In no event shall SkySelect and its affiliates be held liable for any such services or products.

Under no circumstances shall SkySelect be held liable for any delay or failure or disruption of the content or services delivered through the Service resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.

Indemnification

Each User hereby agrees to indemnify and save SkySelect, its affiliates, and their respective directors, officers and employees, harmless, from any and all losses, claims, liabilities (including legal costs on a full indemnity basis) which may arise from (a) such User’s use of the Service (including but not limited to the display of such User’s information on the Service) or from its breach of any of the representations, warranties, terms or conditions of this Agreement or (b) claims asserted by Third Party Rights claimants or other third parties relating to products offered or displayed on the Service. Each User hereby further agrees that SkySelect is not responsible and shall have no liability to it, for any material posted by others, including defamatory, offensive or illicit material and that the risk of damages from such material rests entirely with each User. SkySelect reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with SkySelect in asserting any available defenses.

Intellectual Property Rights

SkySelect is the sole owner or lawful licensee of all the rights to the Service and the SkySelect Content. The Service and SkySelect Content embody trade secrets and intellectual property rights protected under worldwide copyright and other laws. All title, ownership and intellectual property rights in the Service and SkySelect Content shall remain with SkySelect, its affiliates or licensors of the SkySelect Content, as the case may be. All rights not otherwise claimed under this Agreement or by SkySelect are hereby reserved.

SKYSELECT, SKYSELECT.COM and related icons and logos are registered trademarks or trademarks or service marks of SkySelect, Inc. in various jurisdictions and are protected under applicable copyright, trademark and other proprietary rights laws. The unauthorized copying, modification, use or publication of these marks is strictly prohibited.

Agreement to Arbitrate

First Try Customer Support. If you have any issues with the Service or SkySelect, you must try to resolve the issue first through SkySelect customer support.

Agreement to Arbitrate. If the parties are not able to resolve the dispute through SkySelect customer support, you and SkySelect agree to resolve any dispute arising under this Agreement, or under SkySelect's Privacy Policy, or in relation to the Service by binding arbitration in San Francisco, California, or in another location that both parties agree to. This applies to all claims under any legal theory, unless the claim fits in one of the exceptions below. It also applies even after you have stopped using your SkySelect account or have deleted it. If the parties have a dispute about whether this agreement to arbitrate can be enforced or applies to such dispute, the parties agree that the arbitrator will decide that too.

Exceptions to Agreement to Arbitrate. You and SkySelect agree that the parties will go to court to resolve disputes relating to your or SkySelect's intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents). Also, either party can bring a claim in small claims court either in San Francisco, California, or the county where you live, or some other place both parties agree on, if it qualifies to be brought in that court. In addition, if either party brings a claim in court that should be arbitrated or either party refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.

Details of Arbitration Procedure

Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between the parties by mediation conducted by the American Arbitration Association (“AAA”), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this agreement to arbitrate conflicts with the Rules, the language of this agreement to arbitrate applies.

Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.

The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement.

Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.

Class Action Waiver. Both you and SkySelect agree that any claims or controversies between the parties must be brought against each other on an individual basis only. That means neither you nor SkySelect can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless both parties agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other SkySelect customers, and cannot be used to decide other disputes with other customers. If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of this Agreement will still apply.

U.S. Government Matters

You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by Company on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

General

SkySelect and the User are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
SkySelect's failure to enforce any right or failure to act with respect to any breach by a User under this Agreement will not waive that right nor waives SkySelect's right to act with respect with subsequent or similar breaches.
SkySelect shall have the right to assign this Agreement (including all of its rights, titles, benefits, interests, and obligations and duties in this Agreement to any person or entity (including any affiliates of SkySelect). The User may not assign, in whole or part, this Agreement to any person or entity.
If there is any conflict between the English version and another language version of this Agreement, the English language version shall prevail.

Notices

All notices or demands to or upon SkySelect shall be effective if in writing and shall be duly made when sent to SkySelect in the following manner to: SkySelect, Inc. 530 Divisadero St. PMB 859 San Francisco, CA 94117, USA.

All notices or demands to or upon a User shall be effective if either delivered personally, sent by courier, certified mail, by facsimile or email to the last-known correspondence, fax or email address provided by the User to SkySelect, or by posting such notice or demand on an area of the Service that is publicly accessible without a charge. Notice to a User shall be deemed to be received by such User if and when

SkySelect is able to demonstrate that communication, whether in physical or electronic form, has been sent to such User, or
immediately upon SkySelect's posting such notice on an area of the Service that is publicly accessible without charge.