Master Subscription Agreement

(Previously "Terms and Conditions")

This agreement is for individuals or individuals acting on behalf of entities (such as organizations) who create a Skills Base Instance.

There will be one Master Subscription Agreement entered into for each Skills Base Instance that sets out the terms under which the Skills Base Instance is provisioned for You or Your company's use.

You must accept this Agreement as a pre-requisite to creating any Skills Base Instance on any basis, whether free, paid, donated or otherwise.

For the avoidance of doubt, this agreement replaces and supersedes the previous Skills Base "Terms and Conditions" agreement, and in the absence of any express agreement to the contrary, any other agreements between You and Skills Base. By accepting this agreement, by having previously accepted the Skills Base Terms and Conditions agreement, by clicking a box indicating Your acceptance, by issuing purchase order, by paying money to Us, or simply by using Our Services, You indicate Your acceptance of this Agreement and are bound to it.

1.0 Definitions

1.1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.

1.2. "Agreement" means this Master Subscription Agreement.

1.3. "Confidential Information" means:

i. Our Technology, source codes, and private information;

ii. Your Data and Technology;

iii. Personal information about people that would reasonably be expected to be kept private, excluding public information not limited to names and emails;

iv. Any other information of a party that is designated as Confidential or Proprietary at the time of disclosure

1.4. "Data" means electronic data provided to Us by or for You and Your agents, employees, contractors, and/or Users.

1.5. "Free License" means a license granted to use Free Services.

1.6. "Free Services" means Services that We make available to You free of charge, including without limitation, Our Subscription Service. This includes circumstances where We may issue You a complimentary license that appears to be a paid license when in fact you have made no payment to Us.

1.7. "Paid License" means a license granted to use Our Subscription Services via a Paid Subscription.

1.8. "Paid Subscription" means where You have paid us money to use our Subscription Service.

1.9. "'Services" means products or services provided by Us to You including without limitation Free Services and the Subscription Service.

1.10. "Skills Base Administrator" or "Administrator" means users of the Subscription Service that have been delegated as an administrator by You, by virtue of the permissions they are granted by You or your Users within Your Skills Base Instance.

1.11 "Skills Base Instance" or "Instance" means the specific instance within the Skills Base Subscription Service that is provisioned for Your dedicated use.

1.12. "Subscription Service" means the Skills Base software as a service (SaaS) offering provided via the Internet.

1.13 "Subscription Term" means the term of authorized use of the Subscription Service

1.14 "Technology" means software, business processes, documentation or other material authored, invented or otherwise created or licensed

1.15 "We", "Us", "Our" or "Skills Base" means Skills Base Pty Ltd, ACN 162 216 444, incorporated in Victoria, Australia, and its Affiliates.

1.16. "You", "Your" or "Licensee" means:

i. In the case where an individual accepts this Agreement on his or her own behalf, such individual; or

ii.In the case where an individual accepts this Agreement on behalf of a company or other legal entity, the company or other legal entity for which the individual is accepting the Agreement on behalf, as well as Affiliates of that company.

1.17 "User" means any individual that has access to log in to Your Skills Base Instance.

2.0 Authority to Represent and Bind

If You are entering into this Agreement on behalf of a company or other legal entity, You expressly represent that You have the authority to represent the company or legal entity and to bind it and its affiliates to this agreement. You further declare that the company or legal entity understands and accepts these Terms and Conditions. In this case, the terms "You" and "Your" throughout this Agreement shall refer to such company or legal entity and its Affiliates.

3.0 Services

3.1 Grant of Use Rights

We grant You (the Licensee) limited, non-exclusive, revocable permission to access and use applicable Services during the Subscription Term subject to the terms of this Agreement via a Free License and/or Paid License for Your internal business purposes. You shall not use or otherwise access the Subscription Service in a manner that exceeds Your authorized use.

The Services may include code that is licensed under third party license agreements, including open source made available or provided with the Services.

3.2 Terms of Service

By accepting this Master Services Agreement, You also agree to and accept and abide by the Skills Base Terms of Use. As the Licensee you agree that any User that accesses your Skills Base Instance must agree to and abide by the Skills Base Terms of Use, and you warrant that Users will do this as a condition of using the Services.

3.3 Free Services

We may make Free Services available to You. Use of Free Services is subject to the terms and conditions of this Agreement. Free Services are provided to You without charge up to certain limits as outlined in our price list. Usage over these limits requires purchase of Paid Services.

Free services are provided “as-is” without any warranty and We shall have no obligations with respect to the Free Services notwithstanding any clauses in this agreement.

We do not represent or warrant to You that Your use of the Free Services will meet Your requirements, or that Your use of the Free Services will be uninterrupted, timely, secure, accurate or free from error.

3.4 Fees

Where you choose to subscribe to a Subscription Service that requires payment You agree to pay Us all fees specified. You acknowledge and agree that fees are non-refundable and that although You can elect to decrease purchased quantities through the course of a Subscription Term, that fees remain non-refundable and that pro-rated license time extension will be applied instead.

Except as expressly provided otherwise in this Agreement, we reserve the right to change the pricing for any chargeable Service by posting notice of these changes on our website.

3.5 Service Enhancements

Except as expressly provided in this Agreement, we reserve the right to add, change or modify features within the Subscription Service. Where a new feature is added, we undertake to:

i.Disable the feature by default where possible, or to only enable it for Your Administrators;
ii.Provide an announcement via our website;
iii.Provide documentation on its functionality and operation.

Where an existing feature is changed or modified, We undertake to ensure, as much as practicably possible that the changes:

i.Are backwards-compatible;
ii.Do not materially remove existing functionality.

3.6 Bug and Security Fixes

We reserve the right to apply urgent fixes to the Subscription Service software at Our sole discretion and without any announcement. Where an urgent fix is applied, We undertake to ensure, as much as practical that the changes do not adversely or materially impact functionality.

We are not responsible for interruption to Services caused by server downtime, server delayed response time, network issues or any other issues caused by interruption or intermittent issues of underlying service providers.

If, for any reason, the service is not capable of running as planned, including due to infection by computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures or any other causes beyond our reasonable control which corrupt or affect the administration, security, fairness, integrity or proper conduct of the service, we reserve the right, in our sole discretion, to take preventative action.

We shall not warrant that the Service will be available without interruptions. We reserve the right to interrupt the service because of technical issues in which case we will endeavor to provide you with advance warning and to schedule routine maintenance at less busy times such as over weekends.

3.7 License to Use Feedback

You grant to Us and Our affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our affiliates’ services.

3.8 Future Functionality

You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Us regarding future functionality or features.

4.0 Term and Termination

4.1 Term and Termination

This Agreement commences on the date You first accept it and continues until all subscriptions here under have expired or have been terminated. In the event of a termination, clauses within this agreement falling under Section 4.5 (Survival) of this Agreement shall survive.

4.2 Termination by You

You may terminate this Agreement by deleting your Skills Base Instance.

4.3 Termination by Us

We may terminate this Agreement if:

i.We believe that you are in violation of its terms, including but not limited to terms defined in the Terms of Use described in Section 3.1 (Grant of Use Rights) of this Agreement; or
ii.A third party suit, claim, action or demand is filed against us that we are unable to resolve in accordance with Section 10.1 (Our Obligation)

4.3.1 Exceptional termination

In circumstances where we believe there is an imminent threat or danger to Our services, to the safety of Our customers and/or their private data, or to the stability or continuity of Our service, We may terminate Your access and this agreement immediately and subsequently notify You.

4.4 Effect of termination

Upon termination of the Subscription Service You shall stop using, and We shall stop providing, the Subscription Service and all rights granted to You under this Agreement shall terminate and any fees that You have paid to Us shall be forfeited. You shall pay to Us any and all outstanding amounts that you owe Us regardless of due dates specified in financial records. You agree that We are not liable to You or any third part as a result of the termination.

4.5 Survival

The following sections within this Agreement, together with any other provision required for their construction or enforcement, shall survive termination of this Agreement for any reason:

i.Section 9 (Confidentiality)
ii.Section 8 (Intellectual Property)
iii.Section 6 (Liability)
iv.Section 13 (Governing Law)

5.0 Security and Privacy

5.1 Grant of access

Whilst we take reasonable measures to protect your Skills Base instance from unauthorized access, You accept that You and your Users are solely responsible for authorizing, granting, revoking, auditing and managing individuals' authorized access to Your Skills Base instance. You accept that We are not responsible in any way for You and your User's actions in granting or revoking User access. You acknowledge and accept that Your Users can be granted the ability to pass on (i.e.: delegate) Administrator rights to other Users within Your Skills Base Instance.

You acknowledge and accept that Users in Skills Base are uniquely identified by their email address and as such You accept and understand the importance of securing Users' email addresses in protecting User account security. We will not be held responsible for any breach or event arising from You or any third party's failure to ensure that User email accounts are kept secure.

Notwithstanding the stated Grant of Access, We reserve the right to disable or terminate any User account without any prior notice to You in the event that we deem a User has breached Our Terms of Use.

5.2 Privacy Policy

The privacy of Your information shall be governed by Our Privacy Policy which is available at the following location:

Privacy Policy

6.0 Liability

6.1 Limitation of Liability

To the extent permitted by law, the total, cumulative liability of each party arising out of the use of any Skills Base service whether based on contract, tort (including negligence) or any other legal or equitable theory, shall be limited to the amounts paid by You for the products or services during the Subscription Term during which the first event occurs giving rise to liability. Multiple events or claims shall not enlarge this limit.

The limitation of liability shall not apply to:

i.Your obligation to pay for products, services or taxes; or
ii.Either party’s obligations under Section 10 (Indemnification) of this agreement; or
iii.Infringement by a party of the other party’s intellectual property rights

6.2 Vicarious liability

You accept that you are vicariously liable for the acts of Users within Your Skills Base Instance.

6.3 Exclusion of damages

To the extent permitted by law, neither party shall be liable to the other or any third party for lost profits (whether direct or indirect) or loss of use or data, cover, substitute goods or services, or for incidental, consequential, punitive, special or exemplary damages (including damage to business, reputation or goodwill), or indirect damages of any type however caused, whether by breach of warranty, breach of contract, in tort (including negligence) or any other legal or equitable cause of action even if such party has been advised of such damages in advance or if such damages were foreseeable.

The exclusion of damages shall not apply to your obligation to pay for products, Services or taxes.

6.4 Wilful Misconduct and Gross Negligence

Nothing herein shall be intended to limit a party’s liability in an action in tort (separate and distinct from a cause of action for breach of this agreement) for the party’s wilful misconduct or gross negligence.

6.5 General Advice Warning

Except where expressly stated otherwise, material is provided as general information only. It is not intended as advice and must not be relied upon as such. You should make your own inquiries and take independent advice tailored to your specific circumstances prior to making any decisions.

7.0 Warranty

7.1 Conformance

We warrant the Subscription Service shall materially conform to the specifications We publish. In the event that the Subscription Service does not conform to the specifications, Your exclusive rights and remedies are detailed in Section 7.3 (Rights and Remedies).

7.2 Service Level Agreement

The Skills Base Service Level Agreement shall apply only to Paid Subscriptions, and shall not apply to any Free Service. For Paid Subscriptions, agreed service levels shall be upheld in accordance with Our Service Level Agreement which is available at the following location:

Service Level Agreement

7.3 Rights and Remedies

We shall attempt to rectify any defect or non-conformance to specification that We are made aware of provided that liability will be dealt with in accordance with Section 6 (Liability).

8.0 Intellectual Property

8.1 Our Ownership

Our software is not sold to You and all rights, title, and interest in and to all Skills Base intellectual property rights, software, methods, patents and trademarks are owned exclusively by Us, notwithstanding any other provision in this Agreement. Except as expressly provided in this Agreement, We reserve all rights and do not grant You any rights, express or implied or by estoppel.

You will not:

(i) decompile, reverse engineer or modify the underlying source code or otherwise attempt to source code for Our software;

(ii)commence development of an electronic platform for the design, build, sale or management of a program in competition with Us; or
(iii)make any claim for ownership or licence to Our software in any way.

8.1 Your Ownership

You shall retain all of Your rights, title, and interest in and to Your intellectual property. You hereby grant to Us a royalty-free, fully-paid, non-exclusive, non-transferable, sub-licensable, worldwide right to Your Data solely for the sole purpose of providing the Subscription Service to You.

9.0 Confidentiality

The recipient of Confidential Information shall:

i.At all times use reasonable care to protect it from unauthorized disclosure;
ii.Only use it to the extent necessary to exercise rights or fulfil obligations under this Agreement;
iii.Limit the disclosure of the other party’s Confidential Information to those of its employees and contractors with a need to access it;
iv.Subject recipients to binding disclosure terms, at least to the degree specified in this Agreement;
v.At the disclosing party’s request or upon termination of this Agreement, return all originals, copies, reproductions and summaries of Confidential Information, or at the disclosing party's option, certify destruction of the same

10.0 Indemnification

10.1 Our Obligation

Subject to the exclusions set forth below, We shall defend You, Your officers, directors and employees against any third party suit, claim, action or demand (each a “Claim”) to the extent alleging that the Subscription Service used in accordance with this Agreement infringes any third party patent, copyright or trademark, or misappropriates any third party trade secret. If any portion of the Subscription Service becomes the subject of a claim We may:

i.Contest the Claim; and/or
ii.Obtain permission from the claimant for Customer’s continued use of the Subscription Service; and/or
iii.Replace or modify the Subscription Service to avoid infringement; and/or
iv.Terminate your use of the Service(s) in accordance with Section 4.3 (Termination by Us) by giving you sixty (60) days' notice.

We shall have no obligation or liability for any claim arising in whole or in part from:

i.Any use of the Subscription Service which exceeds the authorized use permitted under this Agreement or not in accordance with the Documentation;
ii.Your Data or Technology;
iii.Use of the Subscription Service by You in violation of applicable law;
iv.Continued use of the affected Subscription Service after termination;
v.Use of the Subscription Service that is non-compliant with this agreement including without limitation the Skills Base Terms of Use;
vi.Modifications to the Subscription Service made to Your specifications or otherwise made by any entity other than Us

10.2 Your Obligation

You agree to:

i.Defend Us, Our officers, directors and employees against any claim alleging that: Your Data, Technology or modifications we make to Our Subscription Service specifically for You, infringes any patent, copyright or trademark, misappropriates any third party trade secret, or violates any third party privacy rights; and
ii.Pay any court-ordered award of damages or settlement amount to the extent arising from a claim under Section 10.2 (i); and
iii.Indemnify and hold Us and Our affiliates (including officers, agents, partners and employees) harmless against any and all loss, liability, claim or demand (including reasonable attorneys’ fees) arising out of, or in connection with Your use of and access to our Services, or for any action not in accordance with these terms.

11.0 General Terms

11.1 Updates to this Agreement

We may change, amend or replace this agreement or any part of it by providing notice on Our website. Your subsequent or continued use of the Services constitutes your acceptance of the changes. If you object to any changes Your only remedy is to terminate this Agreement and Your use of the Services.

11.2 High Risk Activities

You agree and warrant that You will not use Our Services for any purpose that requires fail-safe performance including, but not limited to, financial transaction processing, management of hazardous facilities or applications for which failure could result in death, personal injury, or severe physical or environmental damage. We, Our affiliates and suppliers expressly disclaim all warranties of fitness for any such use and You shall release and hold Us, Our affiliates and suppliers harmless from liability arising out of the use of Our Subscription Service for High Risk Activities.

11.3 Return of Customer Data

We shall make available to you a copy of your data in exportable text format. In the event of termination of this agreement, or at Your discretion, we shall make available to You a copy of your data in exportable text format, until such time that:

i.You delete your Skills Base instance; or
ii.This agreement is terminated under the provisions of Section 4.3.1 (Exceptional termination)

11.4 Force Majeure

A party shall not be liable, nor be deemed to have defaulted under or breached this Agreement, for any failure of or delay in fulfilling or performing any term of this Agreement when the failure or delay:

i.Is beyond the reasonable control of a party including without limitation failure of energy sources, criminal acts, acts of God, war, terrorism, riot, civil commotion, malicious damage, fire, flood, structural damage natural disasters or extreme weather events; or
ii.Materially affects the performance of any of its obligations under this agreement; or
iii.Could not reasonably have been foreseen or provided against, but will not be excused for failure or delay resulting from only general economic conditions or other general market effects.

The party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such event.

11.5 Relationship of the Parties

The parties herein are independent entities. This Agreement does not create any partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.6 Assignment

This Agreement, and any rights and licenses granted here under, may not be transferred or assigned by You.

12.0 Entirety

This Agreement, together with the referenced documents herein, is the final and entire agreement between the parties and supersedes all prior or contemporaneous oral or written agreements, representations, understandings, undertakings and negotiations with respect to the subject matter hereof. Any purchase order submitted by You is for Your internal purposes only; its terms and conditions have no force or effect and are superseded and replaced by this Agreement. You acknowledge that You have not relied on any statement, promise or representation made or given by or on behalf of Us that is not set out in this Agreement.

13.0 Governing Law

This Agreement will be governed by and construed in accordance with the applicable laws of the State of Victoria, Australia, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State of Victoria, Australia, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Victoria, Australia, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.

14.0 Referenced Documents