September 15, 2022
These Skill Struck Terms of Service, together with the applicable Quote (defined below), which by this reference is imported herein (collectively, this “Agreement”), are a binding agreement between the person or entity identified on the Quote as the client (“Client”) and Skill Struck, Inc. (“Skill Struck”) and governs Client's use of the Skill Struck Application (as defined below). The rights and/or licenses granted to Client hereunder are conditioned upon Client's acceptance of the terms set forth herein. Client and Skill Struck are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” By signing the Quote, you agree on behalf of your organization to the following terms:
SKILL STRUCK PROVIDES THE SKILL STRUCK APPLICATION SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CLIENT ACCEPTS AND COMPLIES WITH THEM. BY SIGNING THE QUOTE YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CLIENT IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF CLIENT DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, SKILL STRUCK WILL NOT AND DOES NOT LICENSE THE SKILL STRUCK APPLICATION TO CLIENT AND YOU MUST NOT USE THE SKILL STRUCK APPLICATION.
THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN CLIENT AND SKILL STRUCK. CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT SKILL STRUCK WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITH CLIENT WITHOUT CLIENT'S AGREEMENT TO BE FULLY BOUND BY THE TERMS OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY (SEE SECTION 10 BELOW). THIS PROVISION IS AN ESSENTIAL PART OF THE PARTIES’ AGREEMENT.
“Authorized User” means Client and/or Client’s students, employees, consultants, contractors, and agents (i) who are authorized by Client to access and use the Skill Struck Application under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Skill Struck Application has been purchased hereunder.
“Skill Struck Application” means the Skill Struck educational platform, including websites, software, services and other products provided by Skill Struck to Client under this Agreement, as set forth in greater detail the applicable Quote.
“Quote” means the quote provided by Skill Struck to Client providing specific details of Client’s subscription to the Services.
”Third-Party Products” means any software, products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Skill Struck Application.
Subject to Client’s compliance with the terms and conditions of this Agreement, Skill Struck grants Client a limited, revocable, nonexclusive and nontransferable/non-sublicensable license to access and use, and to allow its Authorized Users to access and use, the Skill Struck Application. The Skill Struck Application is licensed, not sold, to Client and its Authorized Users. Client may use the Skill Struck Application solely for the education and/or assessment (as applicable) of its Authorized Users. Client may not use the Skill Struck Application for any other purpose unless expressly set forth in this Agreement.
3. INTERNET AND SYSTEMS REQUIREMENTS.
Continuous Internet access, connectivity and certain minimum systems and technical requirements, such as installation of additional third party software (e.g., browser plug-ins), may be required to access and use the Skill Struck Application, which are not provided by Skill Struck and are the sole responsibility of Client. Information regarding minimum systems and technical requirements for the Skill Struck Application may be obtained by Client from Skill Struck Customer Support.
4. SECURITY AND PRIVACY.
Login Credentials. Client acknowledges that to access to the Skill Struck Application, Authorized Users must create user accounts with Skill Struck. Each Authorized User will choose or be assigned a username and a password (“Login Credentials”) in connection with his or her user account. Client acknowledges and agrees that Client is solely responsible for the use and security of Login Credentials. Client shall take such actions as may be necessary to maintain the confidentiality and prevent the unauthorized use of Login Credentials, and shall immediately notify Skill Struck in the event of a breach of the security of any Login Credentials or user accounts.
Security. Client shall take reasonable measures to maintain the security of the Login Credentials of Client and its Authorized Users. Client will be liable for all use of the Skill Struck Application through any such user account or using any such Login Credentials, whether authorized by Client or its Authorized Users or not. See also Skill Struck’s Cyber Security Policy, found at https://www.skillstruck.com/about-2/cyber-security-policy.
Client may not, and may not permit others to, directly or indirectly sell, rent, lease, loan, timeshare, or sublicense all or any part of the Skill Struck Application. Client shall not allow or assist any parties other than Authorized Users to access or use the Skill Struck Application. The transmission or sharing of Login Credentials to allow any person other than Client or an Authorized User to use the Skill Struck Application is expressly prohibited.
6. LIMITATIONS ON USE.
Client shall not, and shall not permit others to, directly or indirectly (a) reverse assemble, reverse compile, or otherwise reverse engineer or attempt to access or derive the source code or object code or any associated computer algorithms or models of all or any part of the Skill Struck Application, including but not limited to any methods, algorithms or models relating to literacy or other assessments, (b) copy, modify, translate, alter, change, or collect information that can be used to create derivative works of all or any part of the Skill Struck Application, (c) download, copy or collect information that could be used to copy all or any part of the Skill Struck Application, or access or use all or any part of the Skill Struck Application for any purpose other than for the purposes expressly permitted herein. If the applicable Quote specifies a maximum number of Authorized Users or concurrent users that may access the Skill Struck Application, Client shall not exceed such maximum number.
7. USER CONTRIBUTIONS.
The Skill Struck Application may include interactive features that allow Client and Authorized Users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Skill Struck Application. All User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. User Contributions must also comply with local district, school, and classroom rules as applicable. Without limiting the foregoing, User Contributions must not:
Any User Contribution that Client or an Authorized User posts on or through the Skill Struck Application will be considered non-confidential and non-proprietary. Client grants Skill Struck and its service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any User Contribution to provide the Skill Struck Application.
Client represents and warrant that it owns or control all rights in and to the User Contributions and has the right to grant the license granted above Skill Struck and its service providers, and each of their respective licensees, successors, and assigns.
CLIENT SHALL BE RESPONSIBLE FOR ALL USER CONTRIBUTIONS POSTED BY AUTHORIZED USERS OR USING LOGIN CREDENTIALS ASSOCIATED WITH CLIENT’S SUBSCRIPTION TO THE SKILL STRUCK APPLICATION. SKILL STRUCK IS NOT RESPONSIBLE OR LIABLE TO ANY THIRD PARTY FOR THE CONTENT OR ACCURACY OF ANY USER CONTRIBUTIONS POSTED BY CLIENT OR ANY AUTHORIZED USER OR USING LOGIN CREDENTIALS ASSOCIATED WITH CLIENT’S SUBSCRIPTION TO THE SKILL STRUCK APPLICATION. SKILL STRUCK DOES NOT UNDERTAKE TO REVIEW MATERIAL BEFORE IT IS POSTED ON THE SKILL STRUCK APPLICATION, AND CANNOT ENSURE PROMPT REMOVAL OF OBJECTIONABLE MATERIAL AFTER IT HAS BEEN POSTED.
8. OWNERSHIP OF INTELLECTUAL PROPERTY.
Client acknowledges and agrees that Skill Struck or its third-party licensors own all rights, title and interest in and to the Skill Struck Application (including without limitation all software, code, algorithms, models, interfaces, text, photographs, graphics, animation, applets, music, video and audio incorporated therein and any related user guides and documentation), the Skill Struck trademarks, the URLs, and other marks related to the Skill Struck Application, all of which are covered by various protections including, without limitation, copyright, trademark, and trade secrecy law. Client agrees not to alter, remove, conceal, or otherwise change any proprietary notices, trademarks, logos or other marks of Skill Struck or its third party licensors contained within the Skill Struck Application. Client also acknowledges that Skill Struck owns all rights, title and interest in and to all content available on or through the Skill Struck Application, including without limitation all lesson plans and curricula that are developed by Client or Authorized Users while using the Skill Struck Application. Any and all rights relating to the Skill Struck Application not expressly granted by this Agreement are hereby reserved by Skill Struck or its third party licensors. If Client suggests new features or functionality that Skill Struck, in its sole discretion, adopts for the Skill Struck Application, such new features or functionality will be the sole and exclusive property of Skill Struck, and Client hereby waives and releases any and all claims of Client as to the same. Skill Struck reserves the right, in its sole discretion and without incurring any liability to Client, to update, improve, replace, modify or alter the specifications for and/or functionality of all or any part of the Skill Struck Application from time to time. By using the Skill Struck Application, Client agrees to automatically receive updates.
Skill Struck offers the support services which can be found at https://www.skillstruck.com/about-2/support-terms-of-service, which may be updated from time to time.
10. LIMITED WARRANTY, DISCLAIMERS, AND CYBER LIABILITY LIMITATIONS.
i. Skill Struck shall indemnify, defend, and hold harmless Client from and against any and all Losses incurred by Client resulting from any Third-Party Claim in any way relating to or arising out of (a) Skill Struck’s negligence or any criminal or tortious acts (or failures to act) of Skill Struck, including, without limitation, Skill Struck’s violation of the rights of any third party; and (b) any breach by Skill Struck of its obligations, or any representations and warranties made by Skill Struck, under these Terms.
ii. Skill Struck shall indemnify, defend, and hold harmless Client from and against any and all Losses incurred by Client resulting from any Third-Party Claim that the Skill Struck Services, or any use of the Skill Struck Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Client promptly notifies Skill Struck in writing of the Third-Party Claim, cooperates with Skill Struck, and allows Skill Struck sole authority to control the defense and settlement of such Third-Party Claim. If such a Third-Party Claim is made or Skill Struck reasonably anticipates such a Third-Party Claim will be made, Skill Struck may, at Skill Struck’s sole discretion, (A) modify or replace the Skill Struck Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use of the Skill Struck Services. If Skill Struck determines that neither alternative is reasonably available, Skill Struck may terminate this Agreement, in its entirety or with respect to the affected component or part of the Skill Struck Services, effective immediately on written notice to Client. This Section 11.B.ii sets forth Client’s sole remedies and Skill Struck’s sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Skill Struck Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. This Section 11.B.ii will not apply to the extent that any such Third-Party Claim arises from Client’s data or third-party products.
12. TERM, TERMINATION, AND SURVIVAL.
i. Skill Struck may terminate this Agreement, effective on written notice to Client, if Client: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Skill Struck’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 6;
ii. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
iii. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
13. EDUCATION ACCOUNTS
14. CONFIDENTIALITY & DATA PRIVACY.
15. FEES AND PAYMENTS.
A. Statutory Exceptions for Public Institutions. If Client is a qualified public educational or government institution, and any provision of this Agreement, such as, by way of example, all or part of the indemnification provisions of Section 11, is invalid or unenforceable against User because of applicable state or federal law, then such provision shall be deemed invalid and unenforceable, as the case may be, and instead construed in a manner most consistent with applicable law. If the laws of the State of Delaware are so precluded, this Agreement shall be construed under the laws of the state in which Client’s public education or government institution is located.
B. Governing Law and Forum.
i. This Agreement will be governed in all respects, by and construed in accordance with the laws of the state of Delaware without reference to its principles relating to conflicts of law, and each Party agrees that any action arising out of or related to this Agreement must be brought exclusively in a US state or Federal court in the state of Delaware.
ii. Notwithstanding Subsection (i) above, if the Skill Struck address specified on the Quote is in Canada, this Agreement shall be governed by and construed in accordance with the law of the Province of Ontario and the federal laws of Canada applicable thereto, excluding those provisions relating to conflicts of laws. The parties hereby irrevocably attorn to the jurisdiction of the courts of the Province of Ontario or the Federal Court of Canada sitting in that province.
iii. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
iv. Notwithstanding the above, Skill Struck shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Client in the event that, in the opinion of Skill Struck, such action is necessary or desirable.
C. Entire Agreement Except as expressly provided herein, this Agreement constitutes the entire agreement between the Parties with respect to the use of the Skill Struck Application by Client and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Agreement, or action, or delay, will be binding upon Skill Struck unless in writing and signed by Skill Struck no more than 30 days prior to the modification. Skill Struck will notify Client of any modification of these terms at least 30 days prior to the motification, via email.
D. Translation. In the event of a dispute between the English and any translated version, the English version of this Agreement shall prevail. It is the express wish of the parties that this agreement, as well as all correspondence and documents relating to this agreement, be written in English. The following is a French translation of the preceding sentence: Il est de la volonté expresse des parties que la présente entente, de même que toute la correspondance et la documentation relative à cette entente, soient rédigées en langue anglaise.
E. Assignment. Skill Struck may assign this Agreement, in whole or in part, at any time with or without notice to Client. Client may not assign, delegate or otherwise transfer this Agreement, or assign, transfer or sublicense any rights in the Skill Struck Application without the express, prior written consent of Skill Struck.
F. Severability. All provisions of this Agreement apply to the maximum extent permitted by applicable law. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
G. Export. Client acknowledges that the Skill Struck Application is subject to U.S. export jurisdiction. Client agrees to comply with all applicable international and national laws that apply to the Skill Struck Application, including the U.S. Export Administration Regulations and Office of Foreign Assets Control Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
H. Force Majeure. No failure or omission by either Party to carry out or observe any of the terms and conditions of this Agreement (other than payment obligations) shall give rise to any claim against such Party or be deemed a breach of this Agreement if such failure or omission arises from an act of God or any other force majeure, an act of any government, or any other cause beyond the reasonable control of the affected Party.
I. Waiver. Failure to insist upon strict compliance with any of the terms, covenants, or conditions of this Agreement shall not be deemed a waiver of that term, covenant, or condition or of any other term, covenant, or condition of this Agreement. Any waiver of relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time.
J. Third Party Rights. Except as expressly set forth herein, nothing in this Agreement shall be construed as giving any person or entity, other than the parties hereto and their successors and permitted assigns, any right, remedy or claim under or in respect of this Agreement or any provision hereof.
K. Notices. All notices, requests, or other communications hereunder shall be in writing, addressed to the parties at the addresses set forth in the Quote and in the case of notice to Skill Struck shall be addressed to the attention of the Legal Department. Notices mailed by registered or certified mail shall be conclusively deemed to have been received by the addressee on the fifth business day following the mailing of sending thereof. If either Party wishes to alter the address to which communications to it are sent, it may do so by providing the new address, in writing, to the other Party.