DaaS Terms and Conditions
Last updated: March 9, 2023
These DaaS Terms and Conditions (“Terms”) are between the purchaser identified on the Sales Order (“you”) and SkySwitch (“we”, “us”). All capitalized terms that are used but not defined in these Terms shall have the respective meanings given to them in the Sales Order.
a. “Delivery” of the Device(s) occurs when we or our suppliers load the Device(s) on the carrier’s vehicle at the designated point of shipment.
b. “Device(s)” means the device or equipment, including components, options and spare parts that you purchase or rent from us or our Vendors.
c. “Documentation” means the documentation that is generally provided to customers with the Device(s), as revised from time to time, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding use of the Device(s).
d. “Infringement Claim” means any claim by a third party that any Device infringes any patent, trademark, or copyright of the third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of your actions).
e. “Rental Term” means the initial term of your authorized use of the Device(s), as set forth in the applicable Sales Order together with any renewal terms (if applicable). The initial term begins upon Delivery.
f. “Sales Order” means the form completed and submitted by you to order the Device(s).
g. “Territory” means the country or countries where your Device(s) has been originally delivered and activated.
h. “Vendor” means any third-party that we may work with to provide the Devices and services.
2. EQUIPMENT; GENERALLY
a. Devices: You may use the Devices specified in a Sales Order accepted by us, subject to these Terms. If your Sales Order is for the purchase of Devices, Section 3 applies to You. If your Sales Order is for the rental of Devices, Section 4 applies to You.
b. Territory: You may only use and install Device(s) in the Territory.
c. Installation: You are responsible for installation of the Device(s).
d. Software: Any software included with the Device(s) may be governed by separate terms. See Section 8 (Vendor Terms and Conditions) below for any additional software terms. You may only use the software in accordance with those terms and only in connection with your use of Device(s).
3. DEVICE PURCHASES
a. If you are purchasing Device(s): (i) title passes to you on Delivery of each Device; (ii) the Equipment Warranty in Section 6(a) (Equipment Warranty) applies for 12 months from Delivery; (iii) risk of loss for Devices transfers from us to you upon Delivery; and (iv) you are solely responsible for your data and bear all risk of data loss as a result of your use of Devices.
4. DEVICE RENTALS
a. General: This Section applies if you rent the Device for a Rental Term as specified in a DaaS Order Confirmation.
b. Risk of Loss: Risk of loss for Devices transfers from us to you upon Delivery. Risk of loss for a Device remains with you until it is returned after expiry of the Rental Term or disposed of pursuant to these Terms.
c. Return of Devices: You shall return any rented Device(s) in good working condition and free from all liens, charges and encumbrances within ten (10) days from the expiration or any earlier termination of the Rental Term, or pay SkySwitch’s purchase price for the Device(s) as invoiced by SkySwitch. You shall not, without our prior written consent, alter or attempt to repair any Device. Before returning the Device(s), you are responsible, at your own cost, for de-installing any data storage devices placed into the Device(s) and erasing any data stored in the Device(s).
d. Substitution: During the Rental Term, you may be required to accept substitute Device(s), which will be at least functionally equivalent to the original Device(s) delivered. If replacement Device(s) are delivered to you, you must return the original Device(s) (at our cost) following the instructions provided. These Terms will apply to any replacement Device(s).
e. Title: We or our Vendors retain title to Device(s) at all times.
f. Protection of Devices: Upon Delivery and for the Rental Term, you must keep adequate insurance to protect the parties’ respective interests in the Device(s). You are responsible for any damage to or loss or destruction of the Device(s), including during shipment of the Device(s) at the expiration of the Rental Term.
g. Warranty: Section 6(a) (Equipment Warranty) applies for the Rental Term.
5. RESTRICTIONS ON USE
a. These Terms are subject to the Acceptable Use Policy found at https://www.bcmone.com/wp-content/uploads/2017/01/acceptable-use-policy.pdf (the “AUP”). In addition to the prohibited activities identified in the AUP, you must not use the Device(s):
- in any way prohibited by law, regulation, or governmental order or decree
- to violate any rights of others
- to try to gain unauthorized access to, test the vulnerability of, or disrupt the Device(s) or any other service, device, data, account, or network;
- to distribute spam or malware
- in a way that could harm the Device(s) or impair anyone else’s use of it
- in any way intended to work around the Device(s)’s technical limitations
- to disable or defeat any capacity-limiting feature of the Device(s), or otherwise use Device(s) or associated software or service offerings at a greater capacity rate than the rate for which you have subscribed; or
- with any unsupported hardware or software (as described in the applicable Documentation)
b. From time to time we may request that you provide information to confirm your compliance with these Terms. You must comply with any requests for such information within a reasonable time, but in any event within 10 business days of receipt of the request.
6. LIMITED WARRANTY
a. Equipment Warranty: We will pass through to you all warranties that we are expressly authorized by the Vendor to pass through. Please see Section 8 (Vendor Terms and Conditions) for additional terms, which will include any applicable warranties.
b. Exclusions: The Equipment Warranty in Section 6(a) does not apply to the following: (i) any third-party items or services with which the Device(s) is used; (ii) installation, operation, or use not in accordance with the instructions or applicable Documentation; (iii) use in an environment, in a manner, or for a purpose for which the Device(s) were not designed; (iv) any modification, alteration, or repair by anyone other than us or Vendor; (v) causes attributable to normal wear and tear; (vi) use directly or indirectly in supporting activities prohibited by U.S. or other export regulations; (vii) uses appearing on the most current U.S. export exclusion list; (viii) relocation to countries subject to U.S. trade embargo or restrictions; (ix) installation, operation or use of the Device(s) after expiration of the applicable warranty period; or (x) a Force Majeure as defined in the Agreement. No warranty will apply for Device(s) purchased from any entity other than us or for Device(s) used outside the Territory. Device(s) are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as any applications in which the failure of the Device(s) could lead directly to death, personal injury, or physical or property damage (collectively, “High-Risk Activities”). We expressly disclaim any express or implied warranty of fitness for use for or in relation to High-Risk Activities.
c. Remedies: If you notify us of a warranty claim during the applicable warranty period, then we will work with Vendor to either remedy the non-compliance or replace the affected Device(s) (with new or refurbished parts), pursuant to the warranty terms offered by Vendor. If instructed, you must return the applicable defective Device(s). If you receive a replacement but do not return the defective item, then you must pay the full cost for that item. This Section states our and our Vendor’s entire liability and your exclusive remedy for any warranty claims.
d. DISCLAIMER OF WARRANTIES: OTHER THAN THE LIMITED WARRANTY SET FORTH IN SECTION 6(a) ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, FOR OURSELVES AND OUR VENDORS, DISCLAIM ALL WARRANTIES RELATING TO THE DEVICE(S) OR TO ANY MATERIALS OR SERVICES PROVIDED TO YOU UNDER THESE TERMS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WE DO NOT WARRANT THAT DEVICE(S) WILL OPERATE UNINTERRUPTED OR WILL BE FREE FROM DEFECTS OR ERRORS, OR THAT ANY DEVICE(S) WILL MEET (OR ARE DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS.
7. TERM & TERMINATION
a. Term: These Terms are effective on Delivery. These Terms continue until the Sales Order is terminated in accordance with this Section.
b. Termination for Cause: Either Party may terminate the Sales Order effective immediately upon written notice to the other Party if that Party: (i) commits a breach of these Terms and fails to cure within thirty (30) days of notice of the breach; or (ii) commits a material breach of these Terms that cannot be cured.
c. Termination for Insolvency: Either Party may terminate the Sales Order effective immediately upon written notice to the other Party if the other Party: (i) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to control of a trustee, receiver or similar authority; or (ii) becomes subject to any bankruptcy or insolvency proceedings.
d. Effect of Termination: Upon the effective date of termination of the Sales Order: (i) all rights to the Device(s) granted to you pursuant to these Terms will immediately cease; and (ii) you must cease all use of the Device(s).
e. Early Termination Fee. If the Sales Order is terminated for any reason other than as a result of a material breach by us, you must, to the extent permitted by applicable law and without limiting any of our other rights or remedies, pay within 10 days of such termination: (i) all amounts that have accrued through the date of such termination plus (ii) an amount equal to one-hundred percent (100%) of all sums remaining unpaid for the Device(s) (including the full purchase cost for any Device(s)) for the remainder of the Rental Term, plus (iii) a refund of any and all installation waiver credits, sign-up credits, or up-front credits and discounts provided to you under the Sales Order.
f. Survival: Any provision that, by its nature and context, is intended to survive termination or expiration of these Terms, will survive.
8. VENDOR TERMS AND CONDITIONS
a. General: The Device(s) are provided by third-party Vendors and, as such, may be governed by additional terms and conditions. You agree to be bound by all such additional terms and conditions.
9. GOOD STANDING
10. ENTIRE AGREEMENT
These Terms and the Sales Order constitute the Parties’ entire understanding and supersede any prior written or oral agreements or understandings, related to the subject matter hereof. If there is discrepancy between the Sales Order and these Terms, these Terms shall control. Your signature on the Sales Order or use of the Device(s) shall constitute execution of these Terms. These Terms or any Sales Order may be modified only by a mutually executed amendment, except that we may change these Terms at any time by posting amended terms to our website at which time such changes will become binding on you and supersede these Terms, to the extent amended.