This Service Subscription Agreement is made and entered into as of the execution of the first Service Order (“Effective Date”), between Skilljar Inc. (“Skilljar”) and Subscriber Corporation (“Subscriber”). This Agreement sets forth the terms pursuant to which Subscriber will be permitted to use certain of Skilljar’s web-based and consulting services. The parties agree as follows:
- Service Orders
1.1 Service Orders. The specific details of the Skilljar Services to be performed will be described in a written service order (“Service Order”). Once executed by both parties, each Service Order will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Service Orders. If there is a conflict between the terms of this Agreement and the terms of a Service Order, the terms of this Agreement will control unless the Service Order states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order.
- Use of the Skilljar Services
2.1 Use of the Skilljar Services. Subject to the terms and conditions of this Agreement, Skilljar grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.2) right during the term of this Agreement to use the Skilljar services specified in one or more applicable Service Order (the “Skilljar Services”).
2.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, Skilljar grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Skilljar-provided user documentation, in all forms, relating to the Skilljar Services (the “Documentation”) solely in connection with use of the Skilljar Services in accordance with this Agreement.
2.3 Technical Support Services. For so long as Subscriber is current with its payment of the fees specified in the Service Order or on Skilljar.com, Skilljar will use reasonable efforts to provide Subscriber with technical support services relating to the Skilljar Services by email from 9am-5pm Pacific, Monday through Friday, excluding holidays and in accordance with the support plan specified in the applicable Service Order.
2.4 Use Restrictions. Except as necessary to access course materials and other content that Subscriber makes available to its customers through the Skilljar Services or otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Skilljar Services or Documentation; nor (b) use the Skilljar Services to provide services to third parties (e.g., as a service bureau). Subscriber will not, and will not permit or authorize third parties to (a) circumvent or disable any security or other technological features or measures of the Skilljar Services; or (b) make or publish any representations, warranties, guarantees or commitments on behalf of Skilljar concerning any matter whatsoever.
2.5 Compliance with Laws. Subscriber will use the Skilljar Services and Documentation in compliance with all applicable laws and regulations.
2.6 Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Skilljar Services and Documentation and immediately notify Skilljar in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Skilljar Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Skilljar to prevent or terminate unauthorized use of the Skilljar Services or Documentation.
2.7 Reservation of Rights. The Skilljar Services and Documentation are owned or licensed by Skilljar. The Skilljar Services and Documentation are protected by United States copyright, trade dress, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except as expressly authorized by Skilljar, Subscriber agrees not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Skilljar Services or Documentation. Skilljar grants to Subscriber a limited right to use the Skilljar Services and Documentation under this Agreement. Subscriber will not have any rights to the Skilljar Services or Documentation except as expressly granted in this Agreement. Skilljar reserves to itself all rights to the Skilljar Services and Documentation not expressly granted to Subscriber in accordance with this Agreement.
2.8 Feedback. If Subscriber provides any feedback to Skilljar concerning the functionality and performance of the Skilljar Services (including identifying potential errors and improvements), Subscriber hereby assigns to Skilljar all right, title, and interest in and to the feedback, and Skilljar is free to use the feedback without payment or restriction.
- Service Level Agreement.
3.1 Skilljar shall use commercially reasonable efforts to make access to the Service, available twenty-four (24) hours per day, seven (7) days a week with a minimum uptime level of ninety-nine percent (99%) measured on an aggregate monthly basis. Such service availability does not, however, include regularly scheduled maintenance or any unscheduled downtime due to failures beyond Skilljar’s control (such as errors or malfunctions due to the end user’s computer systems, local networks or Internet connectivity). A failure to meet this uptime target during a given calendar month is referred to herein as an “SLA Failure.” A failure to meet the above uptime levels during two or more consecutive calendar months, or three or more calendar months during a rolling twelve-month period, is referred to herein as a “Critical SLA Failure.” Subscriber may immediately terminate the Agreement or the applicable Service Order without penalty in the event of a Critical SLA Failure upon written notice to Skilljar, provided that such notice is make within thirty days of the event giving rise to the termination right.
- Fees and Payment
4.1 Fees and Payment Terms. Subscriber will pay Skilljar the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in each applicable Service Order. Unless otherwise specified in a particular Service Order, Subscriber will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Skilljar to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
4.2 Taxes. Other than net income taxes imposed on Skilljar, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Skilljar after all such taxes are paid are equal to the amounts that Skilljar would have been entitled to in accordance with this Agreement as if the taxes did not exist.
- Term and Termination
5.1 Term. Each Service Order will commence on the specified effective date and will continue for the initial term specified in the applicable Service Order (“Initial Term”) unless the Service Order is terminated earlier in accordance with the terms of this Agreement. Unless otherwise set forth in the applicable Service Order, each Service Order will automatically renew for additional successive twelve-month terms unless at least 30 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
5.2 Termination. Either party may terminate a Service Order if the other party does not cure its material breach of this Agreement or the Service Order within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 5.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. Without limiting any other remedies, Skilljar may suspend or terminate Subscriber’s account if Skilljar suspects that Subscriber (by conviction, settlement, insurance or escrow investigation, or otherwise) has engaged in fraudulent activity in connection with the Skilljar Services. If Subscriber fails to timely pay any fees, Skilljar may, without limitation to any of its other rights or remedies, suspend performance of the Skilljar Services until it receives all amounts due.
5.3. Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Subscriber will pay to Skilljar any fees or other amounts that have accrued prior to the effective date of the termination, and (b) any and all liabilities accrued prior to the effective date of the termination will survive. If this Agreement or a Service Order is terminated prior to the end of the Initial Term, Subscriber will pay all fees owed for the remainder of the Initial Term unless the Agreement or the Service Order was terminated by Subscriber in accordance with Section 5.2.
6.1. Each of the parties agrees: (a) not to intentionally disclose any of the other party’s Confidential Information to any third parties except as authorized hereunder or as mandated by law and except to those subcontractors hereunder who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement; (b) not to use any of the other party’s Confidential Information for any purposes except carrying out such party’s rights and responsibilities under this Agreement; and (c) to keep the other party’s Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. These obligations shall survive termination of this Agreement.
6.2 For the purpose of this Agreement, “Confidential Information” means non-public information of Skilljar or Subscriber disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, or any other information which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party or which is of a confidential nature even though not specifically so designated. Confidential Information shall not, however, include any information which the recipient can establish: (i) was or has become generally known or available or in the public domain without direct or indirect fault, action, or omission of the recipient; (ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (iii) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient, where such independent development has been documented by the recipient.
- Warranties and Disclaimer
7.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
7.2 Skilljar Warranties. Skilljar warrants that (i) it will utilize generally prevailing industry standards to detect and remediate viruses and other harmful code or programs designed to damage or interfere with the operation or performance of the Services; (ii) the Services will perform materially in accordance with the applicable specifications of the Services as set forth in all related user documentation of the Services, under normal use and circumstances; and (iii) Skilljar owns or otherwise has sufficient rights in the Services to grant Subscriber the rights to use the Services provided herein. Subscriber must report any material deficiencies in the Services to Skilljar in writing within thirty (30) days of Subscriber’s discovery of the defect. Subscriber’s exclusive remedy for the breach of the warranties in (i) and (ii) above will be for Skilljar to use commercially reasonable efforts to correct any such deficiencies within reasonable time of receipt of written notice from Subscriber detailing the breach and, if Skilljar is unable or unwilling to remedy such breach within a reasonable time period, Subscriber may terminate the Agreement and receive a refund of any pre-paid, unused fees for the nonconforming Services. These warranties shall only be effective and enforceable if the Subscriber has used the Services in accordance with the terms of this Agreement and the specifications and related user documentation for the Services.
7.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, SKILLJAR MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. SKILLJAR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. SKILLJAR DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SKILLJAR SERVICES. SKILLJAR DOES NOT WARRANT THAT THE SKILLJAR SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SKILLJAR SERVICES WILL BE SECURE OR UNINTERRUPTED. SKILLJAR DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SKILLJAR SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SKILLJAR SERVICES WILL ALWAYS BE AVAILABLE. SKILLJAR EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE SKILLJAR SERVICES.
- Subscriber Content
8.1 Subscriber Content. Course materials and other content that Subscriber makes available to its Customers through the Skilljar Services provided by Subscriber to Skilljar (“Subscriber Content”) will remain the sole property of Subscriber.
8.2 License to Subscriber Content. Subscriber hereby grants to Skilljar a worldwide, non-exclusive, right and license to host, transfer, display, perform, reproduce, modify, distribute and re-distribute the Subscriber Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed) as needed solely in connection with providing the Skilljar Services to Subscriber.
8.3 Subscriber Content Obligations. Subscriber will be solely responsible for maintaining and updating Subscriber Content made available through the Skilljar Services. Subscriber is solely responsible for the accuracy, integrity, and legality of the Subscriber Content. Subscriber shall not knowingly send or store spam, unlawful, infringing, obscene, or libelous material, or viruses, worms, Trojan horses and other harmful code.
8.4 Return of Subscriber Content. If requested by Subscriber within thirty (30) days of the expiration or termination of this Agreement, Skilljar shall make available to Subscriber all Subscriber Content stored within the Skilljar Services at the time of expiration or termination. Thirty (30) days after termination, Skilljar shall have no further obligation to Subscriber and may, at its option, permanently delete or destroy such materials.
9.1 Each party will, at its expense, defend, indemnify and hold the other party harmless from any claim, proceeding, or suit (“Claim”) brought by a third party against the indemnified party alleging (i) such party’s violation of any applicable law or regulation (including any privacy or consumer protection law or regulation); (ii) such party’s violation of any third party right, including without limitation any intellectual property, confidentiality, or property right or right of privacy or publicity, (iii) in the case of Subscriber, any harm caused to third parties as a result of Subscriber Content, including for example, claims by third parties that Subscriber Content is inaccurate, offensive or defamatory. The indemnified party will (a) give the indemnifying party prompt written notice of the Claim; (b) grant the indemnifying party full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as the indemnifying party may reasonably request. The indemnified party will not defend or settle any Claim without the indemnifying party’s prior written consent. The indemnified party will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but the indemnifying party will have sole control over the defense and settlement of the Claim.
9.2 Exclusions from Obligations. Skilljar will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Skilljar Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the Skilljar Services are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Skilljar Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (d) Subscriber’s failure to use the Skilljar Services in accordance with instructions provided by Skilljar, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Skilljar Services not made or authorized in writing by Skilljar where such infringement or misappropriation would not have occurred absent such modification.
9.3 Limited Remedy. This Section 8 states Skilljar’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Skilljar Services.
- Limitations of Liability
10.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SKILLJAR WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SKILLJAR IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL SKILLJAR’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO SKILLJAR DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SKILLJAR TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
11.1 Relationship. Skilljar will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
11.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
11.3 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 11.3. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
11.4 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
11.5 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington in connection with any action arising out of or in connection with this Agreement.
11.6 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.7 Publicity. Subscriber will: (a) make one or more representatives reasonably available for reference inquiries from potential Skilljar licensees, partners, and investors; (b) permit Skilljar to create and publish a written or video case study describing in general terms the nature of Subscriber’s use of the Skilljar Services; (c) permit Skilljar to issue and publish a press release containing a quotation from a representative of Subscriber announcing that Subscriber has licensed the Skilljar Services and the general context of the intended use; and (d) allow the name and logo of Subscriber to be posted on Skilljar’s web site and in marketing and advertising materials subject to compliance with Skilljar’s brand guidelines or other specifications regarding logo usage.
11.8 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Skilljar Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Skilljar Services will immediately terminate.
11.9 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
11.10 Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Skilljar Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Skilljar Services that Skilljar may provide. No employee, agent, or other representative of Skilljar has any authority to bind Skilljar with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Skilljar will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Skilljar specifically agrees to such provision in writing and signed by an authorized agent of Skilljar.