Master Subscription Agreement (MSA)
This Master Subscription Agreement (this "Agreement") is entered into by and between Educrowd Pty Ltd ACN 608 372 265 trading as Skills Base ("Skills Base") of 33 Mackey Street North Geelong, Victoria, Australia 3215 and the customer ("Customer"). Skills Base and Customer are sometimes referred to jointly as the "parties" or singularly as a "party".
This Master Subscription Agreement governs a Customer’s acquisition and use of Services from Skills Base. Capitalised terms have the definitions set forth herein.
If a Customer registers for a free trial of Services or for free Services, the applicable provisions of this agreement will also govern that free trial or those free services (other than the Skills Base Service Level Agreement which does not apply to free or trial accounts).
WHO IS THE CUSTOMER?
This Agreement may be entered into by:
(a) a company or other legal entity (such as executing a written version of this Agreement) that Company or legal entity is the Customer;
(b) a person authorised to enter into this Agreement on behalf on a company or organisation (such as using the e mail domain of that company or organisation or another e mail to open an account) that company or other legal entity is the Customer; or
(c) in any other case, such as a person acting in their own capacity in opening an account, the person entering into this Agreement is the Customer.
If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term "Customer" shall refer to such entity and its affiliates. If the individual accepting this agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Services.
WHEN THE CUSTOMER IS BOUND TO THIS AGREEMENT
Acceptance by the Customer of this Agreement (and any update of this Agreement issued by Skills Base from time to time) will be deemed to have occurred on the earlier of: (1) the Customer clicking a box indicating acceptance through a Skills Base website ("Self Service Customer") (2) the Customer executing this Agreement or (3) the Customer accessing and using any Services.
BACKGROUND
The Customer is an individual or organisation (as the case may be) that desires to obtain access to the Services with respect to certain of its skills management requirements and where Skills Base wishes to provide the Services to Customer, each on the terms and conditions set out in this Agreement.
In consideration of the mutual covenants and promises set out in the Agreement the parties agree as follows:
1. SERVICES
1.1 Purpose. This Agreement sets out the terms and conditions under which Skills Base agrees to provide certain hosted "Software as a Service" for certain software applications (each such application together, the “Subscription Services") to Authorized Users (as that term is defined in clause 2.2). Details of the Subscription Services and, if applicable, other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management ("Professional Services" together with Subscription Services, the "Services") may be further set out in an order form ("Order Form") and may also be further set out in a statement of services (“Statement of Work”) (Order Forms and Statements of Professional Services are sometimes referred to jointly as a "Statement of Services").
1.2 The Services - Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, Skills Base shall use commercially reasonable efforts to provide (i) Customer and Authorized Users access to the Subscription Services, and (ii) Customer the Professional Services. Subject to the terms and conditions of this Agreement, during the Term, Skills Base hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non- transferable, worldwide license to access and use the Subscription Services, solely for the business purposes as set out in this Agreement or a Statement of Services (if applicable).
1.3 Subscription Services. The terms of use of the Services are accepted by the earlier of clicking a box indicating acceptance or executing this Agreement and, if applicable, Order Form or Statement or Works shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set out in this Agreement, and shall identify, the applicable Subscription Services, user limitations, fees, subscription term and other applicable terms and conditions.
1.4 Professional Services. Each applicable Statement of Work shall specify and further describe the Professional Services (if any) to be provided in accordance with the representations and warranties set out in this Agreement, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.
1.5 Changes to Subscription Services. Skills Base may, in its sole discretion, make any changes to any Subscription Services that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Skills Base’s products or services to its customers, (b) the competitive strength of, or market for, Skills Base’s products or services, (c) the Subscription Services cost efficiency or performance, or (ii) to comply with applicable law.
2. SUBSCRIPTION SERVICES ACCESS AND AUTHORIZED USER
2.1 Administrative Users. During the configuration and set-up process for the Subscription Services, Customer will select an available identifier that will uniquely identify the Customer's Instance as well as an administrative Email address and password for Customer’s Skills Base account. Skills Base reserves the right to refuse registration of or cancel identifiers and passwords it deems inappropriate.
2.2 Authorized Users. Customer may allow such number of Customer’s users as agreed between the parties from time to time to use the applicable Subscription Services on behalf of Customer as "Authorized Users".
2.3 Authorized User Conditions to Use. As a condition to access and use of the Services, each Authorized User shall agree to abide by the terms of Skills Base’s end-user Terms of Use as set out here [https://support.skills-base.com/kb/articles/11000025187-terms-of-use] and as varied from time to time and you warrant that each Authorized User will agree to abide by these Terms of Use. Customer shall immediately notify Skills Base of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation and shall be liable for any breach of the foregoing agreements by any Authorized User.
2.4 Account Responsibility. Customer will be responsible for all usage of the Subscription Services including (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, (ii) the entry into and administration of data within the Subscription Services and (ii) securing its Skills Base account, passwords (including but not limited to administrative and user passwords) and files. Skills Base is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords or any other neglect or mismanagement by Customer in relation to its Skills Base accounts.
3. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES
3.1 Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services or any software, documentation or data related to the Subscription Services ("Software"); (ii) modify, translate, or create derivative works based on the Subscription Services or any Software; (iii) use the Subscription Services or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or the Subscription Services in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or the Subscription Services. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of Skills Base, and Customer will comply with Section 4 with respect thereto.
3.2 Customer Compliance. Customer shall use, and will ensure that all Authorized Users use, the Subscription Services, Software, and the Services in full compliance with this Agreement, Skills Base’s end-user Terms of Use and all applicable laws and regulations. Customer represents and warrants that it (i) has accessed and reviewed any terms of use or other policies relating to the Subscription Services provided by Skills Base, (ii) understands the requirements thereof, and (iii) agrees to comply therewith. Skills Base may suspend Customer’s account and access to the Subscription Services and performance of the Services at any time and without notice if Skills Base believes that Customer or Authorized User is in violation of this Agreement. Although Skills Base has no obligation to monitor Customer’s use of the Subscription Services, Skills Base may do so and may prohibit any use it believes may be (or alleged to be) in violation of the foregoing.
3.3 Cooperation. Customer shall provide all cooperation and assistance as Skills Base may reasonably request to enable Skills Base to exercise its rights and perform its obligations under, and in connection with, this Agreement, as is necessary for Skills Base to perform the Services in accordance with this Agreement.
3.4 Training and Education. Customer shall use commercially reasonable efforts to ensure that Customer Users are trained in the proper use of the Subscription Services in accordance with applicable manuals, instructions, specifications and documentation provided by Skills Base from time to time.
3.5 Customer Systems. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use the Subscription Services, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
3.6 Artificial Intelligence (AI) features Disclaimer. Skills Base does not make any warranty in relation to AI features offered to Customers, including but not limited to output, results that may be obtained from the use of AI features, or the accuracy of any information obtained through AI features, including with respect to the factual accuracy of any output or suitability for Customer’s use case. Use of any material and/or data obtained through the use of any AI features is at Customer’s sole risk. Customer should not rely on factual assertions in output without independently fact checking their accuracy. No information or advice, whether oral or written, obtained by Customer from Skills Base or through AI features creates any such warranty. For the purposes of comprehensiveness, "AI features" includes but is not limited to features in Skills Base branded as "Sam".
4. CONFIDENTIALITY
4.1 Confidential Information. Each party (the "Receiving Party") understands that the other party ("Disclosing Party") has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business ("Confidential Information"). Confidential Information of Skills Base includes non-public information regarding features, functionality and performance of the Subscription Services and Software. Confidential Information of Customer includes non-public data provided by Customer to Skills Base to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by the Subscription Services for Customer ("Customer Data"). The terms and conditions of this Agreement, including all pricing and related metrics, are Confidential Information.
4.2 Exceptions. Notwithstanding anything to the contrary, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
4.3 Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purpose whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
4.4 Compelled Disclosure. Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
4.5 Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
4.6 Protection of Customer Data. Skills Base will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data. Further information on the Skills Base privacy policy can be found at [ https://support.skills-base.com/kb/articles/11000025189-privacy-policy]
4.7 Data Protection Regulation. Skills Base and Customer acknowledge and agree that to the extent the Customer Data comprises any personal data, that the Customer is the ‘data controller’ or ‘controller’ and that Skills Base is the ‘data processor’ or ‘processor’ (as such terms are defined in Data Protection Laws). Some of the Services may require a transfer of Customer Data to countries that do not have equivalent data protection laws to the to the country of origin. The provisions of the Data Processing Addendum that can be found here: [https://support.skills-base.com/kb/articles/11000025516-data-processing-addendum] shall govern the processing of any Personal Data by Skills Base during the provision of the Services and/or the performance of its obligations under this Agreement and contains details of any Services to the extent that it requires a transfer of Customer Data between countries. As the ‘data controller’ the Customer warrants that it is responsible for ensuring that the Customer has a lawful basis for processing personal information and has obtained the necessary consents from data subjects.
4.8 Data Storage. The Customer acknowledges that the technical processing and storage of Customer Data is fundamental to the provision of the Services. The Customer expressly consents to Skills Base storage of Customer Data and the back-up of that data onto various media in order to ensure the availability and integrity of the Services. The Customer grants Skills Base a limited nonexclusive non-transferable licence to copy, store, record, transmit, maintain, display, view, print or otherwise use Customer Data to the extent necessary to provide the Services to the Customer. The Customer agrees that the licence to store and maintain Customer Data shall survive the termination of this Agreement for a maximum of 180 days.
5. PROPRIETARY RIGHTS
5.1 Ownership. Customer shall own all right, title and interest in and to the Customer Data. Skills Base shall own and retain all right, title and interest in and to (i) the Services and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, "Services IP"). To the extent Customer acquires any right, title or interest in any Services IP, Customer hereby assigns all its right, title and interest in such Services IP to Skills Base and will do all things necessary to give effect to any such assignment.
5.2 Customer Data License. Subject at all times to Skills Base complying with Section 4.6, Customer hereby grants to Skills Base a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve the Services. For the avoidance of doubt, Skills Base may use, reproduce and disclose data and material that is anonymized, de- identified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by Skills Base. Customer acknowledges that it will not have access to Customer Data through Skills Base or any Subscription Services following the expiration or termination of this Agreement but the Customer can request in writing that Skills Base provide an export of Customer Data on termination.
5.3 No Other Rights. No rights or licenses are granted except as expressly set out in this Agreement.
6. FEES & PAYMENT
6.1 Fees. Customer will pay Skills Base the fees described in the Skills Base website for Self Service Customers or an Order Form or Statement of Work as applicable ("Fees").
6.2 Renewal Fees. Unless terminated earlier in accordance with the terms of this Agreement, unless the Customer terminates this Agreement in writing before the expiration of a Renewal Term, this Agreement will automatically renew for a further Renewal Terms. “Renewal Term” means the initial term of this Agreement at the time that this Agreement was entered into (whether in an Order Form or otherwise) and any renewal of a Renewal Term. Upon the commencement of each Renewal Term, (i) Customer shall be liable to Skills Base for payment of a Renewal Fee. Customer hereby consents to Skills Base charging any such Renewal Fee to the credit card, or other payment method, associated with Customer’s account without need to provide any further notice or receive any further consent. Each "Renewal Fee" shall equal the Service Fee or Renewal Fee, as applicable, due to Skills Base during previous term as may be increased in Skills Base’s sole discretion by a percentage up to the Fee Increase Percentage either as specified on the applicable Order Form or if there is no applicable Order Form, an increase as determined by Skills Base; provided, if the Initial Term was greater than one (1) year, for purposes of calculating the initial Renewal Fee the Service Fee shall be prorated to one (1) year. Notwithstanding the foregoing, if Customer is not liable to Skills Base for a Service Fee under an Order Form, no Renewal Fees shall be charged to Customer with respect to such Order Form.
6.3 Reimbursable Expenses. In addition to the Fees, if applicable, Customer shall reimburse Skills Base for reasonable out-of-pocket expenses incurred by Skills Base in connection with performing the Professional Services and that have been approved in writing in advance by the Customer.
6.4 Payment. Skills Base may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Skills Base thirty (30) days after the mailing date of the invoice (unless otherwise specified on the applicable Statement of Services). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In addition to any other remedies available, Skills Base may suspend or terminate Services in the event of payment delinquency.
6.5 Payment Disputes. If Customer believes that Skills Base has billed Customer incorrectly, Customer must contact Skills Base no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Skills Base’s customer support department or the applicable Account Manager.
6.6 Taxes. Customer shall pay, and shall be labile for, all taxes relating to Skills Base’s provision of the Services hereunder including, for the avoidance of doubt, any applicable consumption taxes.
6.7 No Deductions or Setoffs. All amounts payable to Skills Base hereunder shall be paid by Customer to Skills Base in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
6.8 Subpoena Expenses. If Skills Base is required to provide information in response to a subpoena related to Customer’s account, then Skills Base may charge Customer for Skills Base’s reasonable costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents and participating in depositions or other legal process as well as other costs incurred in complying with such legal processes.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall remain in effect until its termination as provided below (the "Term"). The term of set out in each Statement of Services shall begin on the applicable "Services Effective Date" and continue for the initial term agreed between Customer and Skills Base ("Service Term"). The Agreement will renew for an additional Service Term unless written notice of non-renewal is received by the other party at least ninety (90) days prior to the expiration of the then current term.
7.2 Termination In addition to any other remedies it may have, Skills Base may either (i) terminate this Agreement upon written notice ; (ii) downgrade a paid user account to a free user account; or (iii) suspend the account of a Customer (at the discretion of Skills Base) if the Customer fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days. If a Customer deletes it’s Skills Base instance the Customer this Agreement will terminated with immediate effect. This Agreement may also be terminated by either party if the other party becomes insolvent, bankrupt, goes into liquidation, has a receiver or liquidator appointed or a mortgagee goes into possession of any of its assets or becomes subject to any form of external administration voluntarily or involuntarily. This Agreement will terminate if Skills Base issues an updated Agreement and Customer does not agree to be bound by the terms of the updated Agreement. Skills Base may terminate this Agreement if Customer with a free license does not log into the service for a continuous period of 6 months.
7.3 Effect of Termination. Upon termination of the Agreement: (i) Customer’s instance will be deleted (and all Customer data contained in or connected to Customer instance permanently deleted); (ii) each outstanding Statement of Services, if any, shall terminate; and (iii) Customer shall immediately cease all use of, and all access to, the Subscription Services and either destroy or return all materials relating to the Subscription Services and all Confidential Information of Skills Base and Skills Base shall immediately cease providing the Professional Services. Upon termination, all Fees that would have become payable had each outstanding Statement of Service remained in effect until expiration of its current term will become immediately due and payable.
7.4 Survival. Sections 3.1, 4–6, 7.2, 7.4, and 9–17 shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.
8. WARRANTY AND DISCLAIMER
8.1 Warranties. Skills Base represents and warrants that it will perform the Professional Services in a professional and workmanlike manner. Each party represents and warrants that it has the legal power to enter into this Agreement. Additionally, Customer warrants that (i) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the Customer Data that is placed on, transmitted or recorded through the Services; (ii) the provision and use of Customer Data as contemplated by this Agreement and the Services and the Services does not and shall not violate any Customer’s privacy policy, terms- of-use or other agreement to which Customer is a party or any law or regulation to which Customer is subject to; and (iii) no Customer Data will include social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy. This includes, but isn’t limited to, warranties of merchantability and fitness for a particular purpose, data loss, merchantability, or non-infringement or any warranties with respect to the accuracy, reliability, or availability of any content or information made available in or through the Service, which are, to the fullest extent permitted by law, excluded from the Agreement.
8.2 Disclaimer. Except as expressly provided herein or in a statement of service, Skills Base does not warrant that access to the Services will be uninterrupted or error free, nor does Skills Base make any warranty as to the results that may be obtained from use of the services. Further, except as set out in the Skills Base Service Level Agreement for paying customers (customers with free or trial accounts do not receive the benefit of the Skills Base Service Level Agreement), which can be found at [https://support.skills-base.com/kb/articles/11000025188-service-level-agreement] , Skills Base makes no representations or warranties with respect to services provided by third party technology service providers relating to or supporting the Services, including hosting and maintenance services, and any claim of customer arising from or relating to such services shall, as between Skills Base and such service provider, be solely against such service provider. The Services are provided "as is", and Skills Base disclaims all warranties, express or implied, including, but not limited to, implied warranties of non-infringement, merchantability and fitness for a particular purpose, to the maximum extent permitted by applicable law.
9. INDEMNITY
9.1 Indemnification by Skills Base. Skills Base will defend Customer against any claim, suit, demand, or action made or brought against Customer by a third party alleging that the Services, or Customer’s use or access thereof in accordance with this Agreement, infringes any intellectual property rights of such third party, and will indemnify and hold harmless Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Customer in connection with or in settlement of any such claim, suit, demand, or action. The foregoing obligations do not apply with respect to portions or components of any Services (i) not supplied by Skills Base, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery, or granting of access, by Skills Base, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, any part of the Services is held by a court of competent jurisdiction to be or is believed by Skills Base to be infringing, Skills Base may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services. This Section states Customer’s sole and exclusive remedies for claims of infringement.
9.2 Indemnification by Customer. Customer will defend against any claim, demand, suit or proceeding made or brought against Skills Base by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a non-Skills Base application provided by Customer, or (c) the combination of a Non-Skills Base application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services in an unlawful manner or in violation of this Agreement or the Statement of Services, and will indemnify from any damages, attorney fees and costs finally awarded against Skills Base as a result of, or for any amounts paid by Skills Base under a settlement approved by Customer in writing of, a claim against Skills Base, provided Skills Base (a) promptly gives Customer written notice of the claim against Skills Base, (b) gives Customer sole control of the defense and settlement of the claim against Skills Base (except that Customer may not settle any claim against Skills Base unless it unconditionally releases Skills Base of all liability), and (c) gives customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a claim against Skills Base arises from a breach of this Agreement or Statement of Works by Skills Base.
10. LIMITATION OF LIABILITY
To the maximum extent permitted by law, Customer acknowledges and agree that it assumes full responsibility for any loss that results from the use of the Service, including any downloads from a Skills Base website.
In no event shall (i) either party’s liability arising out of or related to this agreement, whether in contract, tort or under any other theory of liability exceed in the aggregate the total fees paid or owed by customer and vendors hereunder during the twelve (12) months immediately preceding the date of the event giving rise to the claim (such amount being intended as a cumulative cap and not per incident), and (ii) either party have any liability to the other for any lost profits or revenues or for any indirect, incidental, consequential, cover, special, exemplary or punitive damages, however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing limitations and disclaimers shall not apply to the extent prohibited by applicable law.
For the avoidance of doubt, in no instance will Skills Base be liable for any losses or damages Customer suffers if it uses the Services in violation of this Agreement, regardless of whether Skills Base terminates or suspend a user account of this Agreement due to such violation.
Skills Base is not responsible for the behaviour of any third parties, agencies, linked websites, including third-party applications, products, or services for use in connection with the Service (each, a "Third-Party Integration"). Your use of any Third-Party Integration and rights with respect to such Third-Party Integration are solely between you and the applicable third party. We are not responsible for the privacy, security or integrity of any Third-Party Integration or the practices and policies of any Third-Party Integration. We make no warranties of any kind and assume no liability of any kind for your use of any Third-Party Integration.
11. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement is governed in all respects by the laws of the State of Delaware, USA without giving effect to its rules relating to conflict of laws and the parties submit to the non-exclusive jurisdiction of the courts having jurisdiction in that State. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement.
12. SECURITY
Skills Base may, from time to time, host and/or maintain the Subscription Services using a third party technology service provider and Customer acknowledges that Skills Base cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
13. PUBLICITY
Customer agrees that Skills Base may identify Customer as a customer and use Customer’s logo and trademark in Skills Base’s promotional materials. Customer may request in writing that Skills Base stop doing so but the Customer acknowledges that it may take Skills Base up to 30 days to process such request. Notwithstanding anything herein to the contrary, Customer acknowledges that Skills Base may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
14. NOTICES
All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on an Order Form. All notices, consents and other communications between the parties under a Statement of Services will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.
15. FORCE MAJEURE
Skills Base is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.
16. ASSIGNMENT
Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. Skills Base may sublicense any or all its obligations hereunder. For the avoidance of doubt, a third-party technology provider that provides features or functionality in connection with the Services shall not be deemed a sublicensee under this Agreement.
17. GENERAL PROVISIONS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with Statement of Services entered into hereunder and all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Statement of Services, such Statement of Services shall prevail unless otherwise expressly indicated in this Agreement or such Statement of Services. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words "hereof", "hereby", "herein", "hereto", and "hereunder" and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words "include", "includes" or "including" are deemed to be followed by the words "without limitation"; (iii) references to a "Section" or "Exhibit" are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.