THE ORDER FORM(S) OF SKILLO INC. (“SKILLO” OR “WE”, “US”, “OUR”, OR SIMILAR DESIGNATIONS) AND THESE SERVICE TERMS AND CONDITIONS (COLLECTIVELY, THIS “AGREEMENT”) SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER IDENTIFIED IN THE ORDER FORM (“CUSTOMER” OR “YOU”, “YOUR” OR SIMILAR DESIGNATIONS) AND SKILLO CONCERNING YOUR USE OF THE PLATFORM AND SERVICES. BY ORDERING OR OTHERWISE USING THE PLATFORM AND SERVICES, YOU AGREE TO AND ACCEPT THIS AGREEMENT, INCLUDING THE SPECIFIC LIMITATIONS SET FORTH IN SECTIONS 2, 3, 6, 7 AND 12-14. YOU MAY USE THE PLATFORM AND SERVICES ONLY IN ACCORDANCE WITH THIS AGREEMENT. NO OTHER CONTRACT OR TERMS CONCERNING THE PLATFORM OR SERVICES MAY BE CREATED IN ANY OTHER MANNER, INCLUDING BY MEANS OF YOUR PURCHASE ORDERS OR SIMILAR DOCUMENTS (EVEN IF SIGNED OR ACKNOWLEDGED BY SKILLO), WHICH SHALL NOT MODIFY OR AMEND THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT, YOU SHALL NOT BE ENTITLED TO USE THE PLATFORM AND SERVICES.
"Authorized User" means your employees, consultants, contractors, and agents (a) who are authorized by you to access and use the Platform under the rights granted to you pursuant to this Agreement; and (b) for whom access to the Platform has been purchased hereunder.
"Customer Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from you or an Authorized User by or through the Platform or that incorporates or is derived from the processing of such information, data, or content by or through the Platform. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Platform by you or on your behalf or any Authorized User.
"Customer Systems" means your information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by you or through the use of third-party services.
"Resultant Data" means data and information related to your use of the Platform that is used by Skillo in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Platform.
“Platform” means the currently available Skillo content sharing platform as described in the Documentation, and related services and features, and any additions, modifications, or enhancements thereto.
“Services” means Skillo’s services to you, if any, as provided in the Order Form(s), which may include administrative setup, administrative and instructor or student training, system and/or Learning Management System (LMS) integration, data storage, customization, and other such services as agreed between the parties.
“Documentation” means any guides, instructions, policies, FAQs, and reference materials made available to you or your users by Skillo, in any form or medium, which describe the functionality, components, features, or requirements of the Platform, Services, and related services, including the Documentation located at http://www.tryskillo.com/docs.html, which may be amended by Skillo from time to time.
“Order Form(s)” means the order forms or other forms from Skillo (submitted in written form or online) evidencing the initial order for the Platform and Services, and any subsequent order forms or other forms from Skillo, specifying, among other things, the initial term, the number of Authorized Users, Services (if any) to be provided, the applicable fees, and such other charges and terms as agreed between the parties. Order Forms may include, without limitation, Master Services Agreement or Statements of Work. Capitalized terms in the Order Form(s) not otherwise defined in the Order Form(s) are as defined in these Terms of Service.
“Content” means all digital content made available on or through the Platform, including digital textbooks, documents, photographs, video, webpages, and other digital educational resources. Content may include Content uploaded by or at the direction of a user (“User Content”) or Content provided by Skillo, which Skillo in turn receives from third-party licensors for use in connection with the Platform subject to a license agreement between Skillo and such third-party licensors (“Licensed Content”).
“Initial Term” means the initial period during which in the Platform shall be made available to you and your users. Unless a different term is specified in your Order Form(s), the Initial Term shall be for a period of one year.
2.1 Subject to the terms and conditions of this Agreement, Skillo hereby grants you and your Authorized Users a limited, personal, non-exclusive, non-transferrable, non- assignable, terminable license to internally access and use the Platform and Documentation during the Initial Term and any renewal term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use shall be limited to the benefit of Customer in the ordinary course of its internal business operations. Skillo shall provide you with access credentials. The total number of Authorized Users will not exceed the number set forth in the Order Forms, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder. All rights not expressly granted to you are reserved by Skillo.
2.2 Neither you nor your Authorized Users shall: (i) modify, disassemble, decompile or reverse engineer the Platform, except to the extent that such restriction is expressly prohibited by law; (ii) share, rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Platform to any third party or use the Platform to provide time sharing or similar services for any third party; (iii) make any copies of the Platform or Content; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Platform, features that prevent or restrict use or copying of any Content accessible through the Platform, or features that enforce limitations on use of the Platform or Content; (v) delete the copyright and other proprietary rights notices on the Platform or Content; (vi) integrate the Platform or Content with any other software except as provided in the Documentation; or (vii) engage in any fraudulent or illegal activity, violate any laws or third party rights, or violate the policies and procedures contained in the Documentation.
2.3 You and your users may use the Platform only for its intended purpose and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Platform or the data contained therein; or (v) attempt to gain unauthorized access to the Platform or its related systems or networks.
2.4 You and your Authorized Users are individually responsible for all activity occurring under your user accounts and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with your use of the Platform. You shall: (i) notify Skillo immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Skillo immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of Content that is known or suspected by you or your users; and (iii) not impersonate another user or provide false identity information to gain access to or use the Platform.
2.5 You acknowledge and agree that your Authorized Users of the Platform shall each be subject to this Agreement. Skillo may, directly or indirectly, and by use of a Skillo Disabling Device or any other lawful means, suspend, terminate, or otherwise deny your, any Authorized User's, or any other person's access to or use of all or any part of the Platform, without incurring any resulting obligation or liability, if: (a) Skillo receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Skillo to do so; or (b) Skillo believes, in its good faith and reasonable discretion, that: (i) you or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Platform beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Documentation; (ii) you or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Platform; or (iii) this Agreement expires or is terminated. This Section 2.5 does not limit any of Skillo’s other rights or remedies, whether at law, in equity, or under this Agreement.
2.6 Skillo reserves the right, in its sole discretion, to make any changes to the Platform that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Skillo’s services to its customers; (ii) the competitive strength of or market for Skillo's services; or (iii) the Platform’s cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Platform. The parties shall evaluate and, if agreed, implement all such requested changes in an Order Form. No requested changes will be effective unless and until memorialized in an Order Form.
3.1 You shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Documentation all Customer Systems on or through which the Platform is accessed or used; (b) provide Skillo with such access to your premises and Customer Systems as is necessary for Skillo to perform any Services in accordance with the Order Form(s); and (c) provide all cooperation and assistance as Skillo may reasonably request to enable Skillo to exercise its rights and perform its obligations under and in connection with this Agreement.
3.2 Skillo is not responsible or liable for any delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement (each, a "Customer Failure").
3.3 If you become aware of any actual or threatened activity prohibited by Section 2, you shall, and shall cause your Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Platform and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Skillo of any such actual or threatened activity.
4.1 Skillo hereby grants you and your users a limited, personal, non-exclusive, non-transferrable, non- assignable, terminable license to, subject to additional terms and conditions specified by each third-party licensor, to use the Licensed Content in connection with the Platform for the benefit of Customer in the ordinary course of its internal business operations and otherwise in accordance with the terms of this Agreement.
4.2 You and/or your users, as the case may be, own all User Content uploaded to the Platform. For User Content protected by intellectual property rights, you and/or your users, as the case may be, grant Skillo a non- exclusive, transferable, sub-licensable, royalty-free, worldwide license to use the User Content in connection with the Platform. Your right to use the User Content of other users of the Platform is subject to this same license. This license ends when you or your users delete such User Content from the Platform or this Agreement terminates. When you or your users delete User Content, such User Content may persist in backup copies for a reasonable period of time (but will not be available to others). When you or your users upload User Content to the Platform, the Platform may ask you or your users to certify that you have the right to upload and use such User Content, and further that you have the right to grant the license in this Section.
4.3 Neither you nor your users shall post User Content or take any action on the Platform that infringes or violates someone else’s rights or otherwise violates the law. We reserve the right to disable any user account which repeatedly violates the intellectual property rights of third parties. We also reserve the right to remove any User Content or information you or your users post on the Platform if we believe that it violates this Agreement.
Skillo shall provide the Services, if any, to you as provided in your Order Form(s). Unless otherwise noted, all service fees are included with the service fees indicated on your Order Form(s). Please see the Documentation for details.
All right, title, and interest in the Platform and Documentation, including, without limitation, all patents, copyrights, trade secrets, and other proprietary rights in the Platform and Documentation shall at all times remain solely and exclusively the property of Skillo (or its licensors, where applicable), whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Platform is used or licensed. Skillo shall further own all right, title, and interest in any copy, translation, modification, adaptation, enhancements or derivation of the Platform and Documentation, even if developed or recommended by you. You shall not take any action that jeopardizes Skillo’s proprietary rights or acquire any rights in the Platform and Documentation. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Platform and Documentation, or the intellectual property rights owned by Skillo. Except as specifically provided in Section 2 above, no license under any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights are granted by Skillo to you. Skillo’s name, logo, and the product names associated with the Platform are trademarks of Skillo or third parties, and no right or license is granted to use them. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Skillo an assignment of all right, title, and interest in and to the Resultant Data, including all intellectual property rights relating thereto.
Except as specifically authorized by Skillo in writing, you shall not alter, change or remove from the Platform any trademark, other proprietary mark or proprietary rights notice.
As between you and Skillo, you are and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all intellectual property rights relating thereto, subject to the rights and permissions granted herein. You hereby irrevocably grant all such rights and permissions in or relating to Customer Data as are necessary or useful to Skillo, its subcontractors, and our personnel to enforce this Agreement and exercise Skillo’s, its subcontractors', and our personnel's rights and perform Skillo’s, its subcontractors', and our personnel's obligations hereunder.
The Platform is programmed to perform routine data backups. In the event of any loss, destruction, damage, or corruption of Customer Data caused by the Platform or services, Skillo will, as its sole obligation and liability and as your sole remedy, use commercially reasonable efforts to restore the Customer Data from our then most current backup of such Customer Data.
Skillo provides limited customer support to you and your users. Standard support hours are Monday-Friday from 9 a.m. to 5 p.m. Eastern Time daily via e-mail (support@Skillo.com), with integration, training, and consulting services available separately. Skillo has no obligation to provide additional services or upgrades, modifications, or new releases to the Platform under this Agreement. Skillo may voluntarily provide some or all of these items; should Skillo do so, any such action shall not be considered a waiver of this provision.
10.1 Service Fees. You shall pay Skillo for the Services (“Service Fees”) as provided in your Order Form(s). You shall make all payments for Service Fees to Skillo within thirty (30) days of the invoice date or as otherwise provided in your Order Form(s). Late payments shall incur interest equal to the lesser of (a) one and one- half percent (1.5%) per month, or (b) the maximum amount allowed by law.
10.2 Platform/Subscription Fees. As provided in your Order Form(s), you will pay Skillo for the user subscriptions (“Subscription Fees”) You shall make all payments for Subscription Fees to Skillo within thirty (30) days of the invoice date or as otherwise provided in your Order Form(s). Late payments shall incur interest equal to the lesser of (a) one and one-half percent (1.5%) per month, or (b) the maximum amount allowed by law. Skillo reserves the right to modify its Subscription Fees and to introduce new charges at any time, upon at least 30 days prior notice to you or your users, which notice may be provided by email, and which shall be effective as to any renewal term. All pricing terms are confidential, and you agree not to disclose them to any third party.
10.3 Payment Terms. All amounts are stated and payable in U.S. Dollars and do not include taxes. If Skillo is required to pay taxes in connection with this Agreement, including without limitation sales, use, GST, value- added, or other taxes (except taxes based on income), such taxes will be invoiced to and paid by you. Skillo reserves the right to modify the procedures used for invoicing/paying the Service Fees, as well as changing the Service Fees due. Skillo shall provide you with at least thirty (30) days written notice prior to making any changes to the payment procedures or the amount of Service Fees due for subsequent contract terms.
10.4 You agree to provide Skillo with complete and accurate billing and contact information. This information includes the legal name of your Institution, street address, email address, and name and telephone number of an authorized billing contact and your contracts administrator. You agree to update this information within 30 days of any change to it.
10.5 If you believe your invoice is incorrect, you must contact Skillo in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
11.1 Term. This Agreement shall become effective on the date referenced in your Order Form(s) and shall remain in effect for a period of one (1) year, unless another period is referenced in your Order Form(s) or unless terminated earlier pursuant to Sections 11.2 or 11.3 below. Upon the expiration of the initial term, this Agreement will automatically renew for successive one-year terms at Skillo’s then current Subscription Fees.
11.2 Termination for Convenience. Either party may terminate this Agreement, effective only upon the expiration of the then current term, by notifying the other party in writing at least thirty (30) days prior to the expiration of the term.
11.3 Termination for Cause or Default. Either party may terminate this Agreement immediately upon written notice if the other party ceases to do business or (i) becomes insolvent, admits insolvency or admits a general inability to pay its debts as they become due; (ii) files a petition for protection under the bankruptcy laws of any jurisdiction; or (iii) an involuntary petition in bankruptcy is filed against such other party and is not dismissed within thirty (30) days thereafter. You may also terminate this Agreement if Skillo fails to perform a material obligation hereunder and fails to cure such nonperformance within twenty (20) days following written notice thereof. Skillo may also terminate this Agreement if you fail to perform a material obligation hereunder (without notice or an opportunity to cure); provided that, any breach of the restrictions in Section 2 of this Agreement by you, or any breach of your payment obligations shall be deemed a material breach of this Agreement.
11.4 Effect of Expiration/Termination. No refund of Fees shall be due in any amount on account of a termination by you under Section 11.2 or by Skillo under Section 11.3 of this Agreement. However, in the event a refund of Fees are due, these shall be prorated to reflect the period during which you were able to make use of the Platform and Services. When this Agreement expires or terminates, Skillo shall cease providing the Platform and Services to you.
EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 13, THE PLATFORM AND SERVICES ARE DISTRIBUTED AND PROVIDED “AS IS” WITHOUT ANY WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Skillo SPECIFICALLY DISCLAIMS ANY WARRANTIES OF NON- INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. This waiver of warranty affects your specific legal rights; you may have rights which may vary depending upon where you are located. Some jurisdictions do not allow limitations on implied warranties, so the limitations above may not apply to you. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Skillo IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Skillo represents and warrants that the Platform will perform substantially in accordance with the Documentation; that it has the legal right to grant the licenses granted herein, including without limitation the license to any third party software or Licensed Content; and that the Platform does not contain any known viruses. Skillo agrees to defend you and your users from and against any third party claim or action based on any alleged infringement of any United States patent, copyright, trade secret, or other proprietary right as a result of the use of the Platform according to the terms and conditions of this Agreement, and Skillo agrees to indemnify you and your users from any damages awarded against you in any such infringement claim or action or settlement thereof; provided, however, that (i) Skillo is promptly notified in writing of such claim, (ii) you grant Skillo sole control of the defense and any related settlement negotiations, and (iii) you cooperate with Skillo in defense of such claim. Notwithstanding the foregoing, Skillo shall have no obligation to indemnify you or your users under this Agreement in the event the third-party infringement claim arises from your own infringing activity or that of another user.
EXCEPT FOR SKILLO’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SKILLO(AND ITS LICENSORS OR SUPPLIERS) SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE USE OF THE PLATFORM, HOWEVER SUCH DAMAGES ARISE AND/OR WHETHER SUCH DAMAGES ARE CLAIMED IN TORT, CONTRACT OR OTHER ACTION, EVEN IF SKILLO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR SKILLO’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13, IN NO EVENT SHALL SKILLO’S LIABILITY FOR ANY CLAIM WHATSOEVER HEREUNDER (OR ASSOCIATED HEREWITH) EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. Some jurisdictions do not allow for the exclusion or limitation of incidental or consequential damages, so the limitations above may not apply to you.
15.1 It is the policy of Skillo to respond to notices of alleged copyright infringement, in compliance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws. Our response to these notices may include removing or disabling access to Content claimed to be the subject of infringing activity and/or terminating user accounts. If we remove or disable access to any Content in response to such a notice, we will make a good-faith attempt to contact the user that uploaded the Content, so that they may make a counter notification. Skillo will, in appropriate circumstances, terminate the accounts of repeat infringers.
15.2 If a copyright owner or an agent thereof believes that any Content or link on the Platform infringes upon such owner’s copyrights, the copyright owner may submit a notice pursuant to the DMCA, a copy of which can be found here: http://www.copyright.gov/legislation/pl105-304.pdf (“DMCA”). Our designated DMCA copyright agent to receive notices of infringing material is: President and CEO, Skillo, Inc. copyright@Skillo.com Only DMCA notices should go to our DMCA copyright agent. DMCA notice may not be valid if they fail to comply with all of the requirements of the DMCA.
15.3 In some instances a user who has uploaded or posted Content which has been removed pursuant to a DMCA notice may supply a counter-notification. The owner of such affected Content may make a counter-notification pursuant to sections 512(g)(2) and (3) of the DCMA. When we receive a counter-notification, Skillo may reinstate the posts or material in question. To file a counter-notification, the user must provide a written communication (by email to our copyright agent) that sets forth all of the items required by the DMCA.
16.1 Publicity. Skillo may represent in press releases, on its website, and on other promotional materials that you are a subscriber of the Platform.
16.2 Notices. All notices to either party shall be in writing and shall be considered given on the date of (i) confirmed delivery if sent by overnight courier or express mail service, (ii) confirmed delivery if sent by postage pre-paid certified or registered mail (or the equivalent), return receipt requested or (iii) personal delivery.
16.3 Assignment. Neither party shall assign or otherwise transfer any of their rights or obligations without the prior written consent of the other party, which shall not be unreasonably withheld; provided, however, that either party may assign this Agreement, without consent, in connection with sale of a majority of such party’s voting interests or substantially all of its assets to an acquiring party.
16.4 Governing Law; Jurisdiction; Arbitration. Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed, construed and enforced in all respects by the laws of the State of Michigan, excluding its choice of law/conflict of law provisions, and shall not be governed by the United Nations Convention on Contracts for the Sale of Goods. Unless Skillo elects (in its sole option) to proceed in your local jurisdiction, the jurisdiction and venue of any arbitration, litigation or other dispute resolution method between the parties (which arises out of or relates to this Agreement) shall be exclusively in Wayne County, Michigan; you expressly submit and consent to such exclusive jurisdiction and venue. Other than Skillo’s right to seek injunctive relief, any claim or dispute arising out of or relating to this Agreement shall be decided by confidential binding arbitration before a single arbitrator. The parties shall equally split the arbitrator’s fees.
16.5 Export Controls. You agree to comply with all applicable laws, domestic or foreign. You further understand that the Platform and Services may be subject to restrictions and controls imposed by the U.S. Export Administration Act, as amended, and agree, if informed by Skillo, to comply with applicable export and import control laws and regulations issued from time to time by the U.S. Department of Commerce and other governmental agencies, foreign or domestic.
16.6 Entire Agreement; Amendments; Waiver. This Agreement constitutes the entire understanding and agreement between you and Skillo with respect to its subject matter. This Agreement may only be amended by mutual, written agreement of the parties. If there is any conflict between an Order Form, the Documentation and/or these Service Terms and Conditions, the following terms shall govern in the following priority: first, the Service Terms and Conditions, then the Documentation shall govern, and then the Order Form. Your purchase orders or similar documents (even if signed by Skillo) shall not modify or amend this Agreement. The failure of either party to object to or act with respect to any conduct of the other party that is in violation of the terms of this Agreement shall not be construed as a waiver thereof. If any provision of this Agreement is for any reason and/or to any extent determined to be unenforceable under applicable law, the remaining provisions of this Agreement shall remain in full force and effect.
16.7 Providing Notice. Should you wish to or are required to notify Skillo under this Agreement, use the contact information provided on the Skillo website located at http://www.Skillo.com