License and Service Terms
Thank you for choosing Skyline's Software and Services. By using them, you acknowledge and agree to the terms set forth in this Agreement. This applies to both individual users and those representing an entity. Your use signifies your authority to bind yourself or the entity you represent to these terms.
Please note, this Agreement supersedes any prior order or purchase terms and is enforceable against you. If you do not agree with these terms, refrain from using our Software and Services.
1. Definitions
"Agreement": The terms and conditions as outlined in this document.
"Cloud Connected": A state where User's on-premises installed Software is connected to Skyline's servers.
"Community Edition": A free version of the Software, available under specific terms and conditions.
"Hosted Service": The Software that is hosted by Skyline or a third-party cloud service provider.
"Parties": Collectively refers to User and Skyline.
"Party": Individually refers to either User or Skyline.
"Skyline": Skyline Communications nv, Ambachtenstraat 33, 8870 Izegem, Belgium.
"Software": The DataMiner software application provided by Skyline in object code format, including any associated drivers and software.
"Services": The Software offered to User on a pay-per-use basis, subscription, or free of charge, which may be self-managed or provided as a Hosted Service.
"Support Services": Technical support provided by Skyline, including updates and upgrades for the Software under a perpetual license.
"User": The individual or entity utilizing the Software.
"Utilization Allowance": The allotment of credits used by User to access and utilize the Software and/or Services."
2. Deployment models
2.1 Available Models: Skyline provides the Software in various deployment models to suit diverse user needs. These include:
DaaS (DataMiner as a Service): A fully cloud-based service model.
StaaS (Storage as a Service): On-premises deployment with cloud-based storage solutions.
On-Premises with Cloud Connectivity: Offers additional cloud-based functionalities while being primarily on-premises.
Fully Offline On-Premises Deployment: For users requiring high-security solutions without cloud connectivity.
2.2 Specific Terms and Conditions: Each deployment model comes with its own set of terms and conditions, which are comprehensively detailed in the respective documentation provided by Skyline. Users are encouraged to review these documents carefully to understand the specifics of their chosen deployment model. This documentation can be accessed through Skyline's documentation portal.
3. Software License
3.1 Perpetual License: grants User a perpetual, non-sub-licensable, non-exclusive right to use the Software.
3.2 License Grant and Delivery: Subject to this Agreement's terms, licensed Software is available upon download from Skyline's customer platform.
3.3 License Verification and Compliance: Users must be Cloud Connected for license validation and comply with the license type's time and usage restrictions. For Fully Offline On-Premises Deployments, alternative verification methods may apply as instructed by Skyline from time to time.
4. Software as a Service
4.1 Usage-based Software Services: grants User the right to access, deploy, and use the Services.
4.2 Software Installation and Use: In cases where the Services include accompanying software, User is granted the right to install and use such software on their devices.
4.3 Access and Use Restrictions: Users are obligated to adhere to specific usage restrictions and prohibited actions to ensure the integrity and lawful use of the Services.
4.4 Security and Liability: Users are responsible for securing access to the Services and liable for all activities under their account.
5. Community edition
5.1 Limited Software Services or License: The Community Edition is available as DaaS or private on-premises deployment, offered respectively as a time-limited trial or under a license. While this license does not have a predetermined expiration date, it remains subject to revocation by Skyline under specific circumstances outlined in this Agreement.
5.2 Restrictions: The Community Edition may not include all features and functionalities available in the standard Software versions. Specific restrictions and limitations will be detailed in the Community Edition documentation.
5.3 Support and Maintenance: Community Edition users will have access to community-based support. No formal support or maintenance services will be provided by Skyline for the Community Edition.
5.4 Upgrades: Users of the Community Edition may be offered the opportunity to upgrade to a full version of the Software, subject to the terms and conditions of this Agreement and any additional agreements related to such upgrade.
5.5 Data Collection: Skyline may collect and use data related to User's use of the Community Edition in accordance with its privacy policy.
5.6 Modification of Terms: Skyline reserves the right to modify the terms and conditions applicable to the Community Edition at any time.
5.7 No Liability and No Warranty: The Community Edition is provided free of charge and on an "as-is" basis. Skyline disclaims any and all warranties, whether express or implied. To the fullest extent permitted by applicable law, Skyline shall not be liable for any damages, losses, or claims arising out of or in connection with the use of the Community Edition.
6. Usage Restrictions
6.1 General Restrictions: Unless expressly permitted by Skyline in writing, User shall not:
Unauthorized Purposes: Use the Software for any purpose other than its intended use as specified by Skyline.
Copying: Copy the Software, except for making a reasonable number of backup copies for operational security purposes.
Modification: Modify, adapt, or create derivative works based on the Software.
Redistribution: Rent, lease, loan, resell, sublicense, distribute, or otherwise make the Software available to third parties, except as explicitly permitted under this Agreement.
Reverse Engineering: Decompile, disassemble, or reverse-engineer the Software, except to the extent that such activity is expressly permitted by applicable law.
Circumvention of Protection: Attempt to circumvent or bypass any software protection mechanisms in the Software including any mechanisms used to restrict or control software functionality or copying.
Third-Party Use: Allow use of the Software by any third party unless such use is explicitly authorized under this Agreement.
Commercial Exploitation: Use the Software for commercial software hosting services or allow the Software to be used to provide services to third parties unless such use is explicitly authorized.
Compliance with Laws: Use the Software in any manner that violates applicable laws or regulations.
6.2 Services-Based Access: The restrictions in the foregoing article apply equally to the Software obtained via a license or used as Services.
6.3 Services Suspension: Skyline may suspend Services for reasons including risk to Service integrity, violation of Agreement terms, or payment delinquencies.
7. Support Services
7.1 General Provision: Support Services vary based on the software deployment model and require an active support package
On-Premises Software Support: Includes regular software updates and upgrades, along with comprehensive technical assistance.
Software as a Service (SaaS) Support: the support consists of technical support. The support includes technical assistance. In line with the SaaS offering, Skyline endeavors to achieve the availability levels specified in the Support Services terms.
7.2 Community Edition Support: The Community Edition includes access to Skyline's Dojo platform for community support. This encompasses community forums, knowledge bases, and user-contributed content. Formal technical support, as well as updates and upgrades, are not available for the Community Edition.
7.3 Access to Detailed Support Terms: Detailed terms and conditions for the support packages are accessible on docs.dataminer.services.
7.4 Modification of Support Terms: Skyline reserves the right to modify the terms of support packages. Users will be informed of significant changes in a timely and appropriate manner.
8. Ordering, price, and payment
8.1 The price for Software will be as specified during the purchasing process or as otherwise agreed upon in writing. Depending on the deployment type of the Software, User will need to obtain a Utilization Allowance. A Utilization Allowance can be purchased directly from Skyline or through authorized third-party resellers.
8.2 Invoicing: Skyline will issue invoices for the Software licenses and Services purchased. Unless otherwise agreed, invoices are payable within 30 days from the invoice date.
8.3 Late Payment: In case of late payment, amounts due will automatically accrue interest according to the Belgian Law on Combating Late Payment in Commercial Transactions, or any other applicable law, without the need for formal notice. Additionally, overdue payments will be subject to a 10% increase (minimum 75 EUR) as fixed compensation for non-legal recovery costs. Skyline reserves the right to suspend services, terminate software licenses, annul purchase orders, and seek additional damages in the event of non-payment.
8.4 Cancellation Policy: Purchases cannot be cancelled and payments made are non-refundable, except as expressly provided in the Agreement or required by law.
9. Term and termination
9.1 This Agreement takes effect upon User's first use of the Software or Services and will remain in effect as specified in the purchase order or as otherwise agreed upon in writing between Skyline and User.
9.2 Termination by User: User may terminate this Agreement at any time by ceasing all use of the Software and Services and providing written notice to Skyline.
9.3 Termination by Skyline: Skyline may terminate this Agreement, effective immediately upon written notice to User, if: (a) User breaches any material term of this Agreement and fails to cure such breach within thirty (30) days of receiving notice of the breach; (b) User becomes insolvent, files for bankruptcy, or ceases its business operations; (c) User engages in activities that cause or may cause significant harm to Skyline's interests, including but not limited to intellectual property violations or unauthorized distribution of the Software.
9.4 Consequences of Termination: Upon termination, User's right to access and use the Software and Services will immediately cease. User remains responsible for any outstanding payments due to Skyline as of the termination date.
9.5 Survival: Provisions of the Agreement that, by their nature, should survive termination will remain in effect after termination, including but not limited to ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
10. Intellectual Property
10.1 All intellectual property in the Software and Services, including their structure, organization, and source code, is owned by Skyline. These elements constitute Skyline's confidential information and trade secrets.
10.2 This Agreement grants User limited rights to use the Software and Services as specified herein. No additional intellectual property rights are implied or granted. Skyline retains all rights not explicitly granted, emphasizing that the Software is licensed, not sold.
11. Warranty
11.1 Skyline warrants that the Software will substantially conform to its Related Materials for twelve (12) months from the delivery date, provided it is used as permitted under this Agreement and on a Skyline-approved hardware platform. "Related Materials" include operating manuals, specifications, and release notes. Claims regarding warranty breaches must be made in writing within this 12-month period.
11.2 Skyline warrants that the Services will be provided with reasonable skill and care and will operate in substantial accordance with their documentation.
11.3 Skyline affirms ownership or the necessary rights to use all intellectual property in the Software and Services. Furthermore, Skyline commits to complying with all applicable laws and regulations in the provision of the Software and Services.
12. Indemnification
12.1 Skyline agrees to defend User against claims that allege the Software or Services infringe upon a third party's intellectual property rights. Skyline's obligation is conditional upon User promptly notifying Skyline of any such claim and fully cooperating in the defense.
12.2 Remedial Actions: In response to an infringement claim, Skyline retains the right to modify the Software or Services to make them non-infringing while maintaining their material equivalence, or to procure the necessary rights to continue their use.
13. Confidentiality
13.1 The term "Confidential Information" means all information, of whatever nature, such as financial, commercial, economic, technical, legal, or any other information, and in whatever form, such as analyses, compilations, pricing quotes, studies, proprietary information, intellectual property rights, trade secrets, know-how, or other tangible or intangible materials, that is furnished by one Party to the other Party, or that Party's representatives, or otherwise acquired by one Party or its representatives, during or in the framework of this Agreement, in writing or verbally or electronically, and that is marked or identified, in writing or otherwise, or can otherwise be reasonably considered to qualify, as confidential information.
13.2 Confidential Information does not include, however, information which (a) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its representatives, (b) was available to the receiving Party on a non-confidential basis prior to its disclosure by the first Party or its representatives or (c) becomes available to the receiving Party on a non-confidential basis from a person other than the first Party or its representatives who is not otherwise bound by a confidentiality agreement with the first Party or its representatives.
13.3 The Parties agree:
(a) to keep all Confidential Information strictly secret and confidential and not to disclose or reveal it, in whole or in part, directly or indirectly to any person, entity, organization, or administration (including any representative thereof) without the prior written and specific consent of the other Party.
(b) not to use the Confidential Information in any manner or for any purpose other than for its intended purpose.
(c) to limit access to the Confidential Information to its employees and advisers, on a strict need to know basis.
13.4 Each Party will be responsible for any breach of these obligations by its representatives.
14. Limitation of liability
14.1 To the full extent permitted by applicable law, except in case of fraud or wilful misconduct:
(a) Skyline will not be liable for any special, indirect, incidental, consequential, or punitive damages (including any damages arising from loss of use, loss of data, lost profits, business interruption, or costs of procuring substitute software or services) arising out of or relating to this Agreement or the subject matter hereof; and
(b) Skyline's total cumulative liability arising out of or relating to this Agreement, or the subject matter hereof, will not exceed the amount paid by User to Skyline for the Software and Services during the year preceding the event that gave rise to the liability. In addition, User, and not Skyline, is solely responsible for the accuracy, quality, and security of User its data and for maintaining a backup of all such data, and for ensuring the security and integrity of User its data, computers, networks and systems.
15. Data protection
15.1 With respect to the processing of personal data, User is ultimately responsible for the processing of the personal data concerned. User shall comply with the applicable data protection provisions when using the Software. Skyline shall (and shall procure that its Skyline personnel shall) observe all its obligations under any relevant data protection legislation that may arise in connection with this Agreement.
16. Applicable law and jurisdiction
16.1 This Agreement is governed by the laws of Belgium. The United Nations Convention on Contracts for the International Sale of Goods (1980) ("Vienna Convention") is not applicable between Parties.
16.2 Any disputes arising out of or in connection with this Agreement shall be exclusively brought before the competent court of Kortrijk.
17. Miscellaneous
17.1 This Agreement contains the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces all prior agreements or understandings, including but limited to any supply agreements, partnership agreements, memorandums of understanding, letters of intents, if any, written or oral, with respect to the same subject matter still in force between the Parties.
17.2 Neither Party shall be held liable for failure to perform under this Agreement (save for the payment of any sums due hereunder) if such failure is due to causes beyond its reasonable control, such as, but not limited to, fire, flood, strikes, labour disputes or other industrial disturbances, (declared or undeclared) war, embargoes, blockades, legal restrictions, riots, insurrections, governmental regulations, or the unavailability of means of transport.
17.3 Any amendment to this Agreement, as well as any addition or omissions, can only be agreed in writing with the mutual consent of, and duly signed by the Parties.
17.4 All notices and other forms of communication required under this Agreement must be in writing and delivered or sent to the recipient by registered mail (return receipt requested) to the address indicated at the top of this Agreement.
17.5 Any notice shall be deemed to have been delivered three working days following the date of mailing if sent by registered mail. Any Party may change the address to which notices are to be delivered or transmitted by giving the other Party written notice in the manner set forth herein.
17.6 User shall not assign or transfer any of its rights or obligations under this Agreement, either in whole or in part, to any third party without the prior written consent of Skyline. Any such assignment or transfer without the prior written consent of Skyline shall be deemed null and void.
17.7 Whenever possible, the provisions of this Agreement shall be interpreted in such a manner as to be valid and enforceable under applicable law. However, if one or more provisions of this Agreement are found to be invalid, illegal or unenforceable, in whole or in part, the remainder of any such provision and of this Agreement shall not be affected and shall continue in full force and effect as if the invalid, illegal or unenforceable provision had never been contained herein. Moreover, if the Parties decide to amend the invalid, illegal or unenforceable provision(s) or any part thereof and/or agree on a new provision, they should take care that the new or amended provision embodies as closely as possible the purpose of the invalid, illegal, or unenforceable provision(s).
17.8 Any failure or delay by Skyline in exercising any right under this Agreement, the exercise, in whole or in part, of any right under this Agreement, or any reaction or absence of reaction by Skyline in the event of violation by User of one or more provisions of this Agreement shall not operate or be interpreted as a waiver (whether express or implied, in whole or in part) of any of Skyline's rights under this Agreement or under said provision(s), nor shall it preclude the further exercise of any such rights. Any waiver of a right must be express and in writing.