SUNDAYSKY TERMS OF SERVICE – LinkedIn Edition
Last updated: March 28, 2024
IMPORTANT: THE FOLLOWING TERMS OF SERVICE – LinkedIn Edition (“TOS”) APPLY TO YOUR USE OF THE PLATFORM AND SERVICES SPECIFICALLY IN CONNECTION WITH YOUR ACCOUNT ON THE LINKEDIN SERVICE (THE “LINKEDIN SERVICE”). In addition to agreeing to this TOS, before Customer is entitled to use the Platform and Services, Customer must enter into an order for the Platform and Services (“Order”) with SundaySky, Inc. (“SSKY”). This TOS together with all Order(s) is collectively referred to as the “Agreement”. This TOS applies to any user of the Platform and Services, which includes the entity completing and submitting the Order (“Customer”) for the Platform and Services. If Customer does not accept all terms of the Agreement, then Customer may not use the Platform and Services.
ARTICLE 1. PLATFORM
1.1 Platform; Services.
During the Term, SSKY agrees to provide Customer with access and use of those elements of SSKY’s video experience platform purchased as described in the applicable Order. (the “Platform”). Customer will have access and use of the Platform by a specified number of Customer authorized users (“Users”) for the following specific and limited uses: (a) creation of Personalized Videos, (b) provision of data to SSKY for creation of Personalized Videos via csv file upload, and (c) facilitating distribution of Personalized Videos for distribution solely within the LinkedIn Service. “Personalized Video” means a static non-dynamic video created through the Platform which can be personalized with data (which will not include any personally identifiable information) provided by Customer. Customer agrees that notwithstanding any absence of technological constraint on its ability to use the Platform for other purposes (including creation of dynamic videos or use and distribution of Personalized Videos beyond the scope permitted above), this TOS and any Orders under this TOS grant limited rights only as described, and that there is no express or implied right to make any other use of the Platform functionalities and any other use is strictly prohibited. Customer may purchase Platform enablement professional services (the “Services”), as provided in an Order.
ARTICLE 2. FINANCIAL TERM
2.1 Fees and Payment.
Unless the cost of the Platform and Services is funded in full by LinkedIn credits (“LI Funding”), the following terms will apply. Customer will pay SSKY an annual fee for use of the Platform in the amount set forth in the applicable Order (the “Platform Access Fee”) for the scope of Platform usage purchased in the applicable Order. Unless expressly provided otherwise in an Order, all Fees are due and payable by Customer 30 days from Customer’s receipt of the invoice. All fees and other amounts due from Customer hereunder (collectively, “Fees”) are stated in and are payable in U.S. dollars. Customer must give SSKY notice of the basis for any good faith dispute regarding Fees invoiced within 30 days after the applicable invoice date (“Disputed Fees“). Disputed Fees will be due within 30 days after resolution of the dispute. Any late payments (other than Disputed Fees) will incur a late payment fee equal to the lesser of 1.5% per month, or the maximum amount allowable by law. All Fees are exclusive of any taxes, assessments and similar obligations that may be assessed on the Platform, Services or the rights granted hereunder, including, without limitation, sales, use, excise, value added, and withholding taxes. Customer will directly pay any such taxes assessed against it, will promptly reimburse SSKY for any such taxes payable or collectable by SSKY (excluding taxes based on SSKY’s income, which remain SSKY’s responsibility).
ARTICLE 3. CONFIDENTIALITY
3.1 Non-disclosure and Non-use.
“Confidential Information” means all confidential or proprietary information, in any form, either marked as confidential or proprietary or which a reasonable person would understand to be confidential under the circumstances surrounding disclosure. Each Party (the “Receiving Party”) agrees not to use any Confidential Information of the other Party (the “Disclosing Party”) for any purpose, other than to enforce its rights and perform its obligations hereunder. The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in strict confidence, not to disclose it to third parties, using at least the same degree of care it uses for its own information of similar type, but no less than reasonable care, to avoid disclosure or misuse of the Confidential Information of the DisclosingParty. The Receiving Party will limit the disclosure of the Confidential Information to its employees, consultants, affiliates, agents and subcontractors (“representatives”), who (a) have a “need to know” in order to perform the Receiving Party’s obligations hereunder; (b) have been advised of the confidential nature thereof; and (b) are bound by obligations of non-disclosure and non-use of such Confidential Information substantially as protective as this Article. Each Receiving Party is responsible for any non-compliance by its representatives with this Article. A Receiving Party may disclose Confidential Information to the extent required by law or judicial process; provided that the Receiving Party will give the Disclosing Party advance notice of such requirement to the extent legally permitted.
3.2 Exceptions.
Notwithstanding anything to the contrary, “Confidential Information” does not include information that is or becomes: (a) generally available to the public other than due to Receiving Party’s breach of this Agreement; (b) rightfully received by the Receiving Party from a third party without confidentiality restrictions; (c) approved in writing for public release by the Disclosing Party; (d) lawfully known to the Receiving Party prior to receipt of such Confidential Information from the Disclosing Party; and/or (e) independently developed by the Receiving Party without use of or reference to such Confidential Information.
3.3 Survival; Remedies.
The Parties’ obligations regarding Confidential Information will survive termination of this Agreement for five (5) years, or as to any trade secret, for such longer time period as it is protected by applicable law. The Receiving Party agrees that monetary damages would be inadequate to compensate the Disclosing Party for breach of this Article, and that, in addition to any other remedies available at law or in equity, the Disclosing Party will be entitled to seek injunctive relief, without proving actual damages.
ARTICLE 4. OWNERSHIP
4.1 SSKY Ownership.
Except for the limited rights expressly granted herein, SSKY owns all right, title and interest, including all intellectual property rights, in and to the Platform (including templates, designs, pre-defined elements and standard offerings available in the Platform for use by Customer in creating Personalized Videos), Services, SSKY’s trademarks, service marks, trade names, trade dress and associated logos (“Marks”), SSKY Confidential Information and aggregated, anonymized, and statistical data derived from the operation and use of the Platform and Services. If Customer provides any suggestions, requests, template edits, corrections or other feedback relating to or made through the Platform or Services (“Feedback”), Customer gives SSKY a perpetual, irrevocable, royalty-free, transferable right to use the Feedback in any manner without restrictions, compensation or attribution.
4.2 Customer Restrictions.
Customer will not: (a) reverse engineer, disassemble, decompile, modify or alter the Platform; (b) use the Platform or Services for any unlawful purpose; (c) assign, sublicense, transfer, lease or share any right granted hereunder, except as expressly permitted hereunder; (d) use, distribute or display a Personalized Video through any means other than the Platform and all distribution of Personalized Videos must be limited to Customer’s LinkedIn account; or (e) modify a Personalized Video. “Third Party Materials” means third party content (such as music and pictures), tools or services made available through the Platform for use by Customer. Customer agrees that it is solely responsible for obtaining any necessary rights and payment of any fees for use of the Third Party Materials beyond the scope of use described in this Section, Section 1.1 and Section 4.3. Use of Third Party Materials and optional functionalities of the Platform may be subject to certain additional terms made available to Customer through the Platform or in a mutually agreed separate addendum to this Agreement, which are incorporated into this TOS. “Customer Data” means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer for use in connection with the Platform and/or Services. Customer will provide an accurate and normalized production data feed pursuant to the SSKY integration documentation.
4.3 Customer Ownership.
Except for the limited rights expressly granted herein, Customer retains all right, title and interest in and to the Customer Materials, Customer Confidential Information, and Customer Marks, including any intellectual property rights therein. “Customer Materials” means any data, copy, media assets, voice over, or other materials that Customer provides or makes available to SSKY in connection with this Agreement, including Customer Data, Customer Marks. The Personalized Videos developed hereunder (but excluding the Platform, SSKY Marks and Third Party Materials, if any), will be owned by Customer, provided that after the end of the Term, Customer may only distribute and display Personalized Videos as described in Section 1.1. Customer grants SSKY a limited, nonexclusive, nontransferable license to use the Customer Materials and Customer Marks as necessary and expressly approved by Customer and solely in connection with providing use of the Platform and the Services hereunder. Customer is solely responsible for the completeness and accuracy, quality and integrity of all Customer Materials submitted to SSKY and/or the Platform.
ARTICLE 5. WARRANTIES AND DISCLAIMER
5.1 Mutual Warranties.
Each Party represents and warrants to the other that: (a) it has the power and authority to enter into and perform its obligations under this Agreement and each Order; and (b) the execution and performance of this Agreement by such Party does not conflict with any agreement or obligation to which it is a party or by which it is bound.
5.2 SSKY Warranties.
SSKY represents and warrants that: (a) the Services will be performed in a professional manner, consistent with industry standards; and (b) the Services will materially conform to the requirements and specifications set forth herein and in the applicable Order; (c) it uses industry standard methods to protect the Platform from any viruses, Trojan horses, worms or malicious code; (d) the Platform does not infringe upon or otherwise violate or misappropriate any third party intellectual property or other rights when used by Customer as permitted hereunder. As Customer’s sole and exclusive remedy, and SSKY’s entire liability, for any breach of the foregoing warranties in clauses (a) and (b), which are timely reported to SSKY, SSKY will re-perform the Services so that they materially conform to the foregoing warranty.
5.3 Customer Warranties.
Customer represents and warrants that (a) it uses industry standard methods to protect the Customer Materials from any viruses, Trojan horses, worms or malicious code, (b) Customer has sufficient rights and licenses to provide the Customer Materials to SSKY hereunder, and SSKY’s use of the Customer Materials as provided by Customer and in accordance with this Agreement does not and will not infringe or misappropriate the intellectual property of a third party, (c) the Customer Materials will not contain obscene language, pornography or other adult only content, defamatory, racist or similar content, constitute a tort against a third party, or violate any applicable law, and (d) it will not provide or make available to SSKY or the Platform any personally identifiable information of any kind, other than User information. Customer agrees and acknowledges that provision of personally identifiable data, including without limitation sensitive data, by or on behalf of Customer to SSKY and/or the Platform, will carry significant risk of liability, for which Customer will have sole responsibility. SSKY may take remedial action if Customer violates this Section, however SSKY has no obligation to review any Customer Materials for accuracy, compliance or potential liability.
5.4 Disclaimer.
EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 5 OR IN AN ORDER, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. THE PLATFORM AND SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE”, AND SSKY DOES NOT WARRANT THAT: (A) CUSTOMER’S USE OF THE PLATFORM OR SERVICES WILL ACHIEVE ANY SPECIFIC BUSINESS RESULTS; OR (B) THE USE OR OPERATION OF THE PLATFORM OR SERVICES WILL BE CONTINUOUS, UNINTERRUPTED OR ERROR-FREE. SSKY SPECIFICALLY DISCLAIMS ALL LIABILITY ARISING IN CONNECTION WITH CUSTOMER’S PROVISION OF ANY PERSONALLY IDENTIFIABLE DATA, INCLUDING ANY SENSITIVE INFORMATION TO SSKY AND/OR THE PLATFORM. SSKY DISCLIAMS ALL LIABILITY IN CONNECTION WITH ANY USE OR INABLITY TO USE ANY LINKEDIN SERVICES.
ARTICLE 6. INDEMNIFICATION; LIMITATION OF LIABILITY
6.1 SSKY Indemnity.
SSKY agrees to defend, indemnify and hold harmless Customer and/or its directors, officers, employees, agents and assigns (the “Customer Indemnified Parties”) against third-party claims (“Claims”) against any Customer Indemnified Party to the extent arising from or related to a breach or alleged breach by SSKY of Article 3 (Confidentiality), Section 5.1 (Mutual Warranties), or Section 5.2 (SSKY Warranties). Customer will promptly notify SSKY in writing of any Claim for which it seeks indemnification and will reasonably cooperate with SSKY in the defense of such Claim. SSKY will have sole control of such defense; provided, that, SSKY will not settle a Claim unless the settlement includes an unconditional release of Customer from liability on the Claim or Customer has consented to such settlement. If the Platform, any Services or Deliverables become, or in SSKY’s opinion be likely to become, the subject of an infringement Claim, SSKY may at its option and expense, (x) procure for Customer the right to continue using such Services and Deliverables; or (y) replace or modify it so that it becomes non-infringing while remaining functionally substantially similar; or (z) if neither of these options is reasonably available to SSKY after reasonable efforts, cease to provide the Platform and Services, and grant Customer a prompt refund for the prorated portion of any prepaid but unused Services. This Section 6.1 states the entire liability of SSKY with respect to an alleged or proven infringement, including any Claim of intellectual property infringement. SSKY has no liability for any infringement Claim to the extent based upon: (a) the combination of the Platform and/or any Services with any equipment or materials not furnished by SSKY; (b) Customer’s modification of the Platform and/or Services; or (c) use of the Platform and/or Services in breach of this Agreement.
6.2 Customer Indemnity.
Customer agrees to indemnify, defend and hold harmless SSKY and/or its directors, officers, employees, agents and assigns (“SSKY Indemnified Parties”) against any Claims made against any SSKY Indemnified Party to the extent such Claims arise from or relate to a breach or alleged breach by Customer of Article 3 (Confidentiality), Section 4.2 (Customer Restrictions), Section 5.1 (Mutual Warranties) or Section 5.3 (Customer Warranties). SSKY will promptly notify Customer in writing of any Claim for which it seeks indemnification and will reasonably cooperate with Customer in the defense of such Claim. Customer will have sole control of such defense; provided that, Customer will not settle a Claim unless the settlement includes an unconditional release of SSKY from liability on the Claim or SSKY has consented to such settlement. Customer has no liability for any infringement Claim to the extent based upon (a) the combination of the Customer Materials with the Platform or Services, if a Claim would not have occurred but for such combination; (b) any modification of the Customer Materials by SSKY not approved by Customer where SSKY’s modification caused the infringement; or (c) SSKY’s use of the Customer Materials in breach of this Agreement where SSKY’s breach caused the infringement.
6.3 Limitation of Liability.
EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS AND CUSTOMER’S LIABILITY ARISING IN CONNECTION WITH PROVISION OF PERSONALLY IDENTIFIABLE DATA: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF USE, DATA, BUSINESS OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THE TOS, THE ORDERS, THE PLATFORM, THE SERVICES OR ANY DELIVERABLES PROVIDED HEREUNDER, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL LIABILITY WILL NOT EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SSKY BY OR ON BEHALF OF CUSTOMER HEREUNDER.
ARTICLE 7. TERM; TERMINATION
7.1 Term.
The term of this Agreement begins on the Effective Date and continues until all Orders have expired or are terminated (the “Term”). The term of each Order (the “Order Term”) is set forth in the applicable Order.
7.2 Termination; Suspension.
Either Party may terminate this Agreement and/or an Order, as applicable, immediately upon written notice if: (a) the other Party is in breach of a material obligation under this Agreement or such Order, which is not cured within thirty (30) days of receipt of written notice from the non-breaching Party; (b) the other Party is in breach of a material obligation under this Agreement or such Order, which it is not entitled to cure, as specified herein, or which breach, by its nature, cannot be cured; (c) the other Party becomes the subject of any voluntary or involuntary proceeding under any bankruptcy, insolvency or liquidation law, which is not resolved favorably to such Party within sixty (60) days of commencement thereof; or (d) if during any period in which LinkedIn Funding is in effect, LinkedIn terminates its relationship with SSKY or with Customer for the Platform or Services. SSKY may suspend or discontinue providing the Platform and/or performing the Services and/or may remove or make unavailable any Customer Materials if, in its reasonable judgment, it would violate any applicable law or if SSKY reasonably believes Customer has breached this Agreement, or if use of the Platform through Customer’s account is threatening the security, integrity, or availability of the Platform generally or otherwise causing immediate, material and ongoing harm to SSKY or others. In such event, SSKY will give Customer prompt notice after such suspension, removal or unavailability.
7.3 Effect of Termination.
Termination of an Order will not terminate this Agreement with respect to any other Order then in effect. Upon any termination of this Agreement or any Order: (a) SSKY will cease to provide, and Customer will cease use of, the Platform and Services purchased under the relevant Order(s); (b) all licenses granted hereunder will immediately terminate as to the terminated Order or Agreement; (c) Customer will pay SSKY all amounts due from Customer hereunder; (d) each Party will return to the other Party any materials and Confidential Information of the other Party in its possession and control or will destroy such items and upon request of the other Party certify their destruction to the other Party; and (e) Articles 2 – 6, Section 7.3 and Article 8 will survive expiration or termination of this Agreement in accordance with such provisions.
ARTICLE 8. MISCELLANEOUS
8.1 Governing Law; Assignment.
This Agreement and each Order will be governed by the laws of the State of New York, except for its conflict of laws principles, and will be exclusively adjudicated in New York, NY. The Parties hereby consent to exclusive personal jurisdiction and venue at such courts. Neither Party may assign this Agreement without the prior written consent of the non-assigning Party, which approval will not be unreasonably withheld or delayed; provided that either Party may assign this Agreement on prior written notice but without such consent: (i) to any of its affiliates; or (ii) to an acquirer of the assigning Party’s business to which this Agreement relates, in each case where the assignee has expressly assumed the assigning party’s obligations hereunder.
8.2 Electronic Communication; Notices.
Customer consents to the use of electronic means to complete this TOS and to deliver any notices pursuant to this TOS, including giving general notices about the Platform and Services to Customer by general notice via the Platform. All other notices given by either Party under this Agreement must be in writing and delivered by courier or overnight delivery service, or by certified U.S. mail, deemed given upon receipt, with such notices to be sent to the addresses set forth above or such other address specified by a Party to the other Party in accordance with this Section. Notices to SSKY will be sent to the attention of its CFO with a copy to Finance-inc@sundaysky.com.
8.3 Entire Agreement; Amendments; Severability and Waiver.
This Agreement together with the Orders (and all terms incorporated therein by reference) constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. In case of any conflicts between this Agreement and any Order, the terms of this Agreement shall prevail. If any provision of this Agreement is held to be invalid or unenforceable, the remainder will remain in full force and effect. The waiver by either Party of any breach of this Agreement will not constitute a waiver of any other or subsequent breach. SSKY may modify the TOS at any time on notice to Customer via (i) email to the contact email provided by Customer; (ii) by presenting the new TOS when Customer next logs into the Platform; or (iii) by posting the revised TOS within the Platform. Changes to the TOS will be effective five (5) days after such notice regardless of whether Customer actually receives any notification; provided that any modification that materially and adversely affects Customer’ rights will apply only to Orders with an effective date after the date of modification. Customer must check its Platform account on a regular basis and must ensure that information it provides to SSKY is accurate. Customer’s continued use of the Platform after notice of modifications as provided above constitutes Customer’s acceptance of the modified TOS.
8.4 Force Majeure; Relationship; Publicity.
Neither Party will be responsible for any failure or delay in its performance hereunder due to causes beyond its reasonable control, including, but not limited to, labor disputes, war, terrorism, riot, acts of God or governmental action. The Parties are independent contractors. Nothing creates any employer-employee, partnership, joint venture, agency, or any other relationship. Neither Party will, without the other Party’s prior written approval, (i) make any public communication regarding this Agreement or the relationship of the Parties; or (ii) use the name or any Mark of the other Party except as contemplated herein.
