Effective as of May 25 2018
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to OneSky that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.
The “Effective Date“ of this Agreement is the date which is the earlier of (a) Your initial access to the Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Your initial purchase on the Effective Date as well as any future purchases made by You that reference this Agreement.
You acknowledge and agree that OneSky reserves the right to add, delete, change or modify all or any part of the Terms and Conditions of this Agreement at OneSky sole discretion and at any time without notice given to you in accordance to Section 10.
TABLE OF CONTENTS:
- OneSky Services : Access and Use of the Services
- Fee and Payment
- Confidentiality, Security, Privacy
- Representation, Warranties and Disclaimers
- Refund Policy
- Limitation of Liability
- Terms and Termination
- Modification of Terms and Conditions
- General Terms
Account: means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Agent: means an individual authorized to use a Service through Your Account as an agent and/or administrator as identified through a unique login.
Agreement: means this Master Service Agreement together with any and all Supplements, Additional Terms and Order Forms.
API: means the application programming interfaces developed and enabled by OneSky that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications.
Confidential Information: means all information disclosed by You to OneSky or by OneSky to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to OneSky’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by OneSky to You in the applicable OneSky help center(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
Directive: means Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data.
End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using a Service.
Order Form: means any of OneSky generated service order forms executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the number of Agents authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.
Personal Information: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
Personnel: means employees and/or non-employee service providers and contractors of OneSky in connection with performance hereunder.
Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Professional Services: means integration, consulting, language translation and review services, and similar services, designed to be used in conjunction with the Services but not included in the Service Plan to which You subscribe, may be described in a Statement of Work.
Service(s): means Software Services, Professional Services or any services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by OneSky, via the applicable subscriber login link and other web pages designated by OneSky. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Information.
Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Website applicable to the Service) for the Services to which You subscribe.
Software Services: means software provided by OneSky (access through the internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service.
Subscription Term: means the period during which You have agreed to subscribe to a Service with respect to any individual Agent.
Usage Data: means aggregated encoded or anonymized data that OneSky may collect about a group or category of services, features or users while You, Your Agents or End-Users use a Service for certain purposes, including analytics, and which does not contain personal information.
Website: means a website (www.oneskyapp.com) operated by OneSky.
“We,” “Us” or “Our”, “OneSky”: means OneSky Inc. Limited.
1. OneSky Services
Thanks for choosing OneSky as your localization partner!
OneSky provides end-to-end localization solutions for thousands of businesses worldwide, with professional translation services in 50+ languages and a cloud-based translation management system to streamline localization for mobile apps, games, websites, and documents.
1.1 Access to and Use of the Services
You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account,as well as for all Service Data.
1.2 Use Restriction
You are responsible for all actions that occur under Your Account. You will:
(a) be responsible for the accuracy, quality, and legality of the Service Data;
(b) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify OneSky promptly of any such unauthorized access or use;
(c) use commercially reasonable efforts to prevent the improper dissemination of Personally Identifiable Information through its use of the Services; and
(d) use the Services only in accordance with applicable laws and government regulations.
2. FEE AND PAYMENT
You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form:
(a) fees are based on the Services purchased and not actual usage;
(b) payment obligations are non-cancelable; fees paid are non-refundable; and
(c) the quantity of Services purchased cannot be decreased during the relevant Subscription Term.
2.2 Service Plans fees
Service Plans are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term (e.g., monthly Service Paid Plans will automatically roll over month-to-month and annual Service Paid Plans will automatically renew for additional 12-month periods).
OneSky reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. If You fail to pay Your Service Plan fees or other charges indicated on any Order Form within five (5) business days of OneSky notice to You that payment is due or delinquent, or if You do not update payment information upon OneSky request, in addition to OneSky other remedies, OneSky may suspend or terminate access to and use of such Service by You, Agents and End-Users.
2.3 Professional Services fees
All fees for Professional Services are as set forth in the applicable Order Form and shall be paid online by You in accordance with the payment terms set forth in the Order Form.
3.1 Service Data
As between the parties, You shall retain all right, title and interest (including any and all intellectual property rights) in and to the Service Data as provided to OneSky. Subject to the terms of this Agreement, You hereby grant to OneSky a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Service Data solely to the extent necessary to provide the Service to You.
3.2 OneSky Services
This is a service agreement for access to and use of the Service. You agree that OneSky or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Service, all Documentation, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Except as expressly set forth in this Agreement, no rights in the Service or any OneSky technology are granted to You.
You, from time to time, may submit comments, questions, suggestions or other feedback relating any OneSky product or services to OneSky (‘Feedback’). OneSky may freely use or exploit Feedback in connection with any of its products or services.
4. CONFIDENTIALITY, SECURITY, PRIVACY
Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the Personnel who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 4.1 shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Service Data and such agreement shall have no further force or effect with respect to Service Data.
In addition to Service Data, We collect certain information (which may include Personal Information) about You, Agents and End-Users as well as Your and their respective devices, computers and use of the Service. This includes, among other things:
- Collecting analytics information when You use the Services. In the Services, analytics information may consist of the feature and function of the Service being used, the associated domain name, the username and IP address of Your Agents or End-Users, additional information required to detail the operation of the function, and which parts of a Service are being affected. The analytics information that OneSky collects may include elements of Service Data related to the function the Agents or End-Users are performing.
- Collecting Usage Data which is used to help understand trends in usage of the Services. In addition to collecting and using Usage Data ourselves, OneSky may share the Usage Data with third parties, including Our Subscriber, partners and service providers, for various purposes, including to help Us better understand Our subscribers’ needs and improve Our Services. We may also publish Usage Data to provide relevant information about the Services and for purposes of marketing.
OneSky agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Service or Service Data. However, OneSky shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond OneSky’s control.
5. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
5.1 Software Services
OneSky warrants that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 8.3 herein.
5.2 Professional Translation Services
OneSky warrants that the Professional Translation Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. You must report any deficiencies in the Professional Translation Services to OneSky in writing within 14 days of performance of such Professional Translation Services in order to receive warranty remedies. For any breach of the warranty in this Section 5.2, Your exclusive remedy, and OneSky’s entire liability, shall be the re-performance of the Professional Services. If OneSky is unable to re-perform the Professional Translation Services as warranted, You shall be entitled to recover the fees paid to OneSky for the deficient Professional Translation Services.
5.3 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 5, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
6. REFUND POLICY - PROFESSIONAL TRANSLATION SERVICES
You must report any deficiencies in the Professional Translation Services to OneSky in writing at email@example.com within 14 days of service delivery time in order to receive warranty remedies. If OneSky determines that the translation does not meet OneSky’s quality standard, You may either request for a refund, limited to the language(s) that fails to meet OneSky’s quality standard only, or request re-performance of Professional Translation Services. Should You have chosen refund, OneSky shall issue the refund via the same payment channel in which the original payment was made by You.
You may cancel any order that has not yet been accepted by a translator. To cancel an order, contact OneSky’s customer support at firstname.lastname@example.org first to check if the order has been accepted by a translator. If the order has been accepted by a translator, the order cannot be cancelled and refund will not be issued. Otherwise, refund will be issued to the customer in the form of credits on OneSky’s platform. Credits can be used to purchase any of OneSky Professional Services.
7. LIMITATION OF LIABILITY
NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE FEES FOR SOFTWARE SERVICES INCURRED BY SUBSCRIBER HEREUNDER IN THE 6 MONTHS PRECEDING THE INITIAL ACT OR OMISSION GIVING RISE TO SUCH LIABILITY, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES FOR SOFTWARE SERVICES PAID BY SUBSCRIBER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
7.1 Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Time to File Claim
NO CLAIM MAY BE BROUGHT BY A PARTY UNDER THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE INITIAL ACT OR OMISSION GIVING RISE TO SUCH CLAIM.
8. TERM AND TERMINATIONS
8.1 Term of Agreement
This Agreement commences on the Effective Date and continues until the expiration or termination of all subscriptions hereunder.
8.2 Termination for Cause
Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees or comply with applicable scope of use restrictions) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). For clarity, nothing in this Section 8.2 limits OneSky’s right to terminate or suspend any Service Plans.
8.3 Effect of Termination
If this Agreement is terminated by You in accordance with Section 8.2, OneSky will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by OneSky in accordance with Section 8.2, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to OneSky for the period prior to the effective date of termination.
Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Service Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Service Data, and, as provided in the Documentation, will have the right to delete or destroy all copies of Service Data in Our systems or otherwise in Our possession or control, unless prohibited by law.
9.1. By OneSky
OneSky will defend, indemnify, and hold You harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (collectively, “Claims”) made or brought against You by a third party alleging that Your use of the Services within the scope of this Agreement infringes the intellectual property rights of such third party; provided, however, that OneSky will have no such indemnification obligation to the extent such infringement: (a) relates to use of the Services in combination with other software, hardware, data products, processes, or materials not provided by OneSky and the infringement would not have occurred but for the combination; (b) arises from or relates to modifications to the Services not made or authorized by OneSky; or (c) continues after notification of an infringing activity or use by OneSky.
9.2. By Subscriber
10. MODIFICATIONS OF TERMS AND CONDITIONS
OneSky reserves the right to modify the Terms and Conditions of this Agreement (including Service pricing and plans) from time to time without notice. By using our Services, you are agreeing to be bound by the Terms then in effect.
Charges and payment terms may be changed at OneSky sole discretion with prior written notice to you. If You disagree with the whole or any part of the modified the Terms and Conditions, Your exclusive remedy is to terminate this Agreement and cease using the Service.
If you have any questions or concerns about the Terms and Conditions, any other policies, or OneSky generally, please send us a thorough description by email to email@example.com
11. GENERAL TERMS
11.1 Governing Law
This Agreement shall be governed by the laws of Hong Kong, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Hong Kong. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You.
Any notice or communication to OneSky shall be sent electronically through OneSky software or email at firstname.lastname@example.org.