Effective date: July 23 2023
Skywell Digital, (“Skywell Digital,” “Company,” “us,” or “we”), provides and the other websites under the skywelldigital.com domain (collectively, the “Sites”), and our SaaS product, web design software, tools, and related services (together with the Sites, the “Service”) subject to your compliance with all the terms, conditions, and notices contained or referenced herein (the “Terms of Service” or the “Agreement”).
If you have questions regarding this Agreement or about Skywell Digital, please contact us by email at email@example.com
Acknowledgment and acceptance of terms
Our Service may integrate with other services on a number of platforms provided by third parties. Please be aware that your activities on each of these platforms may be subject to additional terms of service for that particular platform.
Certain parts of the Service may be subject to additional terms and conditions specified by us from time to time; your use of such Service is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference. Prices of the Service are subject to change upon 30 days’ notice from us. Such notice may be provided at any time by posting the changes to the Skywell Digital Site or the Service itself. Skywell Digital shall not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Service.
The Service is available only for individuals aged 13 years or older. If you are age 13 or older but under the age of 18, or the legal age of majority where you reside if that jurisdiction has an older age of majority, then you agree to review these Terms of Service with your parent or guardian to make sure that both you and your parent or guardian understand and agree to these Terms of Service. You agree to have your parent or guardian review and accept these Terms of Service on your behalf. If you are a parent or guardian agreeing to these Terms of Service for the benefit of a child over the age of 13, then you agree to and accept full responsibility for that child’s use of the Service, including all financial charges and legal liability that he or she may incur. We may, in our sole discretion, refuse to offer the Service to any person or entity and change the eligibility criteria for using the Service at any time. The right to access the Service is revoked where these Terms of Service or use of the Service is prohibited or to the extent offering, sale, or provision of the Service conflicts with any applicable law, rule or regulation.If you are entering into these Terms of Service on behalf of a company or other legal entity, you represent that you have the authority to bind such entity, its affiliates, and all users who access the Service through your account to these Terms of Service, in which case the terms “you” or “your” shall refer to such entity, its affiliates, and users associated with it. If you do not have such authority, or if you do not agree with these Terms of Service, you must not accept these Terms of Service and you may not use the Service. You further agree that you assume all responsibility and liability in connection with your use of the Service on behalf of such a company or other legal entity, and you shall be solely responsible for all disputes, if any, that arise due to your use of the Service on behalf of such a company or other legal entity.
Registering for an account.
Your responsibility for your account.
You are responsible for taking all steps to ensure that no unauthorized person shall have access to your account or password. When creating your account, you must provide accurate and complete information. We encourage you to use “strong” passwords (passwords that use a combination of upper- and lowercase letters, numbers, and symbols) with your account. It is your sole responsibility to: (i) control the dissemination and use of your account and password, and (ii) promptly inform us of any need to deactivate an account or password. We are not liable for any harm related to the theft of passwords, or your disclosure of passwords. You shall immediately notify us of any unauthorized use of your account or password or any breach of confidentiality. You are solely responsible for any damage resulting from the use of your account and username. You may not use your account or password to breach security of another account.
How to control your account.
Except for User Content (defined below), all materials on the Service including the mini-applications that integrate other applications and services (“Recipes”) and the Service itself and all Intellectual Property Rights contained therein or related thereto, including text, graphics, user and visual interfaces, photographs, trademarks, logos, sounds, music, artwork, applications, computer code and associated documentation (collectively, the “Content”), including but not limited to the design, structure, arrangement, and “look and feel” of such Content, is owned by or licensed to us and our licensors and is protected by copyright, trademark, and other intellectual property rights and laws.
Other than as provided herein, Skywell Digital does not grant to user any license, express or implied, to the intellectual property of Skywell Digital or its licensors. Except as expressly provided in the Terms of Service, no part of the Service and no Content may be copied, reproduced, sold, republished, transmitted, displayed, reposted, or otherwise distributed for public or commercial purposes.
Subject to the terms and conditions of this Agreement, Skywell Digital provides you with a non-exclusive, revocable license to use the Service, including the Recipes, as expressly permitted by the features and functionality of the Service and the Terms of Service. Skywell Digital may terminate this license at any time for any reason or no reason.
We may now or in the future allow you to post or publish content on or upload content to the Service, including but not limited to voice app templates or functionality created and contributed by you. Any content a user submits, posts, displays, or otherwise makes available on the Service, including all Intellectual Property Rights (defined below) therein, is referred to as “User Content.” You retain ownership of your User Content. We have no obligation to store, maintain, or provide you a copy of your User Content. You alone are responsible for any of your User Content that may be lost or unrecoverable through your use of the Service.
Additionally, you may choose to or we may invite you to submit comments, ideas, or feedback about the Service, including without limitation about how to improve the Service or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction and will not place Skywell Digital under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Skywell Digital does not waive any rights to use similar or related Feedback previously known to Skywell Digital, or developed by its employees, or obtained from sources other than you. Additionally, you acknowledge that all email and other correspondence that you submit to us shall become our sole and exclusive property.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
You own all of the User Content you post or publish (“post”) on the Service. You grant us a non-exclusive, royalty-free, perpetual, transferable, sub-licensable, worldwide license to use, modify, reproduce, display, and distribute your User Content on the Service for the purposes of operating and providing the Service to you and other users (“User Content License”). You understand and agree that the Service is a public platform and other users may search for, see, use, and/or re-post any User Content that you make publicly available through the Service.
Your obligations to end users:
Skywell Digital is a “service provider” to you, and you are a “customer” of our Services irrespective of whether you pay fees to obtain the Services. Any natural persons accessing or using your Skywell Digital created voice apps and other software created by you on our Services are deemed your “end users.” Skywell Digital does not have a direct relationship with any of your end users, therefore Skywell Digital is not responsible for how you handle end user information.
You may have additional obligations under local law other than those described in this Terms of Service. Such obligations may be more restrictive than this Terms of Service. Use of the Services does not ensure compliance with such laws, nor is Skywell Digital responsible for your compliance with such laws.
You will use all reasonable efforts to protect information collected from end users via your use of the Services, including any personal information obtained from unauthorized access or use. In the event you discover that the end user information collected by you has been breached, compromised, or inadvertently exposed to non-authorized third parties, you shall notify Skywell Digital promptly of such a breach or exposure including the root cause, remediation steps, and compensating controls to ensure such a breach does not occur in the future.
You are responsible for providing notification to your end users, third parties, or authorities under the applicable breach notification statutes and any other applicable data protection laws. You acknowledge that you are solely responsible for any personal injury or property damage arising from or relating to your use of any Services.
You acknowledge and agree that you are solely responsible for providing any required notices and obtaining all required consents from end users in connection with any use of the Services. Your notice and consent must be compliant with all applicable data protection and security laws and regulations. Without limiting the foregoing, before collecting or using any end user information, you must provide adequate notice of the end user information you collect, how it will be used and/or shared, and obtain any necessary consents required under the applicable data protection laws and regulations. You agree to comply with all data protection laws and regulations (including those applying to personal information) in connection with your access and use of the Services.
You will respond to any end users wishing to exercise their privacy rights, under the applicable law, as it relates to any information collected via your use of the Services. For example, if end users located in certain jurisdictions may exercise a “right to be forgotten” (or “erasure”) to the information you have collected about them, you shall comply with their request as required by applicable law. For clarity, you are directly responsible (or, the “data controller”) for the information processed by your use of the Services, including any information processed via third-party applications available on the Services. Skywell Digital is not a data controller to such information and is not responsible for responding to end users on your behalf. To the extent Skywell Digital receives a request from an end user or authority about your use of the Services, Skywell Digital will notify you as permitted by law.
You agree that any User Content that you post does not and will not violate any law or infringe any rights of any third party, including without limitation any Intellectual Property Rights, publicity rights, or rights of privacy. If you think any User Content infringes your rights, or if you want to challenge User Content that has been taken down from the site, please refer to Skywell Digital’s Copyright Policy in Section 13 below. We reserve the right, but are not obligated, to reject and/or remove any User Content that we believe, in our sole discretion, violates the Agreement.
You agree not to post User Content that:
may create a risk of harm, loss, damage, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, to any animal or to any property seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise may constitute or contribute to a crime or tort contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, harassing, humiliating to other people (publicly or otherwise), libellous, threatening, profane, or otherwise objectionable contain software or other material that violates or invades the intellectual property rights (or rights of privacy or publicity) of any third party includes any information or content to which you have not obtained any necessary rights or permissions to use accordingly or to make available under any law or under contractual or fiduciary relationships contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets)contains any information or content that you know is not correct and current, oris adult in nature, such as any nudity in a sexual context, exposed genitalia, or any content with adult themes.
Use of the Service
Your use of the Service is subject to all applicable laws and regulations.You may not: use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any manual process to access, acquire, copy, or monitor any portion of the Service or any Content or obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service attempt to gain unauthorized access to any portion of the Service or any Content, or any systems or networks connected to the Service, by hacking, password “mining”, or any other illegitimate means probe, scan, or test the vulnerability of the Service or any Content, or any system or network connected to the Service reverse look-up or trace any information of any other user or visitor or otherwise use the Service for the purpose of obtaining information of any other user or visitor transmit spam, chain letters, or other unsolicited email take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure upload invalid data, viruses, worms, or other software agents through the Service impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide, or attempt to hide your identity disclose any information that you do not have the consent to disclose (such as confidential information of others, including their personally identifiable information)use any device, software, or process to interfere with, or attempt to interfere with, the proper working of the Service or any Content, or any systems or networks connected to the Service, or with any other person’s use of the Service conduct, engage in or otherwise process end user information or data to analyze individuals or groups of natural persons for unlawful or discriminatory purposes use the Service or any Content for any purpose that is unlawful or prohibited by the Terms of Service, or store or collect any personally identifiable information that is deemed sensitive or requires special protections under applicable laws. For example, Social Security numbers, passwords, and credit card information. Any unauthorized use of the Service or any Content may violate copyright, trademark, and other applicable laws and could result in criminal or civil penalties.
Use of software
Any software that is accessed via the Service shall be governed by the terms of the license agreement that accompanies the software or is posted with the software on the Sites where the software can be accessed; however, if no such license agreement is made available, we grant you a limited, revocable, worldwide, royalty-free, non-assignable, non-exclusive license to use the software for your personal, non-commercial use in accordance with the Terms of Service. In the event of any inconsistency between the Terms of Service and any license agreement, the license agreement shall govern in relation to the software.
You may not decompile, reverse engineer, or otherwise attempt to discover the source code of the software. You do not have the right to sublicense the Service, download or modify any portion of the Service, or resell the Service. If you violate the Terms of Service, we reserve the right to terminate your license to the Service without notice.
The software may automatically update from time to time. These updates are designed to improve, enhance, and further develop the software and may take the form of bug fixes, enhanced functions, new software modules, and completely new versions. You agree to receive such updates (and permit us to deliver these to you with or without your knowledge) as part of your use of the software.
a. User Content
We are not responsible for and do not necessarily hold the opinions expressed by our users, content contributors, and third parties; such opinions and other statements are theirs alone, not opinions of Skywell Digital. Content created by users or third parties is the sole responsibility of such users or third parties and its accuracy and completeness are not endorsed or guaranteed. You acknowledge that by providing you with the ability to view and post content through our Service, Skywell Digital is not undertaking any obligation or liability relating to the content. Skywell Digital and its affiliates, successors, assigns, employees, agents, directors, officers, and stockholders (i) do not undertake or assume any duty to monitor our site for inappropriate or unlawful content and (ii) assume no responsibility or liability which may arise from the content thereof, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy and publicity rights, obscenity, pornography, profanity, fraud, or misrepresentation. Notwithstanding the foregoing, Skywell Digital reserves the right to block or remove communications, postings, or materials at any time in our sole discretion.
Skywell Digital takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or sends over the Service. Skywell Digital assumes no liability for your interactions with other users, or for any user’s action or inaction. You are solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Skywell Digital shall not be liable for any damages you allege to incur as a result of User Content. Skywell Digital reserves the right, but has no obligation, to monitor disputes between you and other users.
We may provide links to third-party websites. We do not recommend or endorse the content of any third-party website. We are not responsible for the content of linked third-party websites and we do not make any representations or warranties regarding their content or accuracy. Your use of third-party websites is at your own risk and subject to the terms and conditions of use for such website. You expressly release us from any and all liability arising from your use of any third-party website.
Billing and payment
Users of the Service may be required to provide their credit card details to Company or the payment service provider retained by Company (the “PSP”). Users will be responsible for paying agreed-upon fees for the Service. Users of the Service will be liable for any taxes required to be paid on the Service provided under the Agreement (other than taxes on the Company’s income).
All paid plans must enter a valid payment account. Free accounts are not required to provide payment account information. An upgrade from the free plan to any paying plan will immediately bill you.
For monthly payment plans, the Service is billed in advance on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
Disclaimer of warranties and limitation of liability
THE SERVICE AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, CURRENTNESS, FREEDOM FROM INTERRUPTION, VIRUSES OR OTHER DEFECT, AND NON-INFRINGEMENT.YOUR SOLE REMEDY AGAINST US FOR DISSATISFACTION WITH THE SERVICE OR ANY CONTENT IS TO STOP USING THE SERVICE OR ANY SUCH CONTENT. IN NO EVENT SHALL WE OR OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR CONTENT PROVIDERS (OUR “AFFILIATES”) BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, RESULTING FROM THE USE OR INABILITY TO USE THE SERVICE OR THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE OR OUR AFFILIATES ARE ADVISED ON THE POSSIBILITY OF SUCH DAMAGES.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Skywell Digital ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL INFORMATION, INCLUDING PERSONAL INFORMATION OR FINANCIAL INFORMATION, STORED THEREIN; (IV) ANY ERRORS, MISTAKES, LOSSES, DAMAGE OR UNAUTHORIZED ACCESS RESULTING FROM THE USE OF THIRD PARTY APPLICATIONS BY YOU, BY YOUR END USERS, OR BY Skywell Digital ON YOUR BEHALF; (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VII) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VIII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL Skywell Digital, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING ONE DOLLAR. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF Skywell Digital HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Changes to the Service, termination, and indemnity
Skywell Digital is constantly innovating and finding ways to provide our users with new features and services. Therefore, we may, without prior notice, change the Service, add features, stop providing the Service or features of the Service to you or to users generally, or create usage limits for the Service. We may permanently or temporarily terminate, downgrade, suspend, or prohibit your access to the Service without prior notice and liability for any reason, including if, in our sole determination, you violate any provision of this Agreement, or for no reason. Upon termination of your use of the Service, you continue to be bound by this Agreement.
You agree to defend, indemnify, and hold us and our Affiliates harmless from and against any demands, loss, liability, claims, or expenses (including attorneys’ fees) made against us by any third party due to or arising out of your User Content, use of the Service, violation of these Terms of Service, or violation of any rights of another.
Skywell Digital respects the intellectual property of others, and expects users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Service infringe upon your copyright or other intellectual property right, please send the following information to Skywell Digital’s Copyright Agent at: firstname.lastname@example.org (subject line: “DMCA Takedown Request”):
A description of the copyrighted work or other intellectual property that you claim has been infringed, including the voice app store URL (internet address) or other specific location on the Service where the material you claim is infringed is located. Include enough information to allow Skywell Digital to locate the material, and explain why you think an infringement has taken place.
A description of the location where the original or an authorized copy of the copyrighted work exists — for example, the URL (internet address) where it is posted or the name of the book in which it has been published 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 information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf, and
An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest
If you believe that the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content, you may send a written counter-notice containing the following information to the Copyright Agent:
Your physical or electronic signature
Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled
A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content, and
Your name, address, telephone number, and email address If a counter-notice is received by the Copyright Agent, Skywell Digital will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
In accordance with the DMCA and other applicable law, Skywell Digital has adopted a policy of terminating, in appropriate circumstances and at Skywell Digital’s sole discretion, the memberships of users who are deemed to be repeat infringers. Skywell Digital may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Amendments, notification procedures, and changes to the Agreement
We reserve the right, in our sole discretion, to modify, update, or change the Terms of Service (“Updated Terms”) from time to time, so you should review this page periodically. When we change the Agreement in a material manner, we will update the “last modified” date at the top of this page. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service. Skywell Digital is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
Unless we make a change for legal or administrative reasons, we will provide reasonable advance notice before the Updated Terms become effective. Skywell Digital may provide such notifications, whether the notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Skywell Digital in our sole discretion. Skywell Digital reserves the right to determine the form and means of providing notifications to our users, provided that you may opt out of certain means of notification by contacting us at email@example.com. You agree that we may notify you of the Updated Terms by posting them on the Service, and that your use of the Service after the effective date of the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms of Service and any Updated Terms before using the Service. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Service from that point forward. The Terms of Service will govern any disputes arising before the effective date of the Updated Terms.
INFORMAL NEGOTIATIONS. To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Skywell Digital agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to Skywell Digital.
BINDING ARBITRATION. If you and Skywell Digital are unable to resolve a Dispute through informal negotiations, all claims arising from use of the Service (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If your claim for damages does not exceed $10,000, Skywell Digital will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Skywell Digital may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. You and Skywell Digital agree that any arbitration will be limited to the Dispute between Skywell Digital and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND Skywell Digital ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Skywell Digital otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” Section will be deemed null and void.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Skywell Digital without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.b. Governing law, international use, and usersThe Terms of Service will be governed by and construed in accordance with the internal laws of the state of California. The Service is controlled and operated from its facilities in the United States. Although the Service may be accessible worldwide, we make no representation that the Service or the materials on the Service are appropriate or available for use in locations outside the United States, and accessing the Service from territories where its use is illegal is prohibited. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable US and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
c. Entire agreement/severability
The Terms of Service represent the entire agreement between you and us with respect to the subject matter addressed herein and supersedes all prior to contemporaneous agreements or understandings, written or oral. The Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective successors and lawful assigns.
d. No waiver
Any failure by us to enforce or exercise any provisions of the Terms of Service shall not constitute a waiver of that right or provision. Our failure to act with respect to a breach by you or others does not waive our rights to act with respect to subsequent or similar breaches.
e. Attorneys’ and accountants’ fees, remedies
In any action to enforce the Terms of Service, the prevailing party shall be entitled to attorneys’ and accountants’ fees and costs.
You agree that Skywell Digital’s remedy at law for any actual or threatened breach of this Agreement would be inadequate and that Skywell Digital shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that Skywell Digital may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including, without limitation, attorneys’ fees.
No right or remedy of Skywell Digital shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys’ fees, and expenses.No instance of waiver by Skywell Digital of its rights or remedies under these terms and conditions shall imply any obligation to grant any similar, future, or other waiver.