THIS IS A LEGAL AGREEMENT BETWEEN YOU, A PERSON OR ENTITY WHO REGISTERS AND USES SKILLSTRAIL.COM SERVICE ON BEHALF OF HIMSELF/HERSELF OR A BUSINESS, GOVERNMENT OR NON-PROFIT AGENCY (“End User”, “User” or “Customer”) AND SHMI SOLUTIONS LLC. DBA SKILLSTRAIL (“SkillsTrail”) REGARDING CUSTOMER’S USE OF SKILLSTRAIL.COM SERVICES (“SkillsTrail Service” or “Service”). BY CLICKING “I ACCEPT” OR BY USING THE SERVICE, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.
1. DEFINED TERMS
Agreement means this SkillsTrail Web Services Agreement together with any rules and restrictions that may apply at the time.
Confidential Information means the SkillsTrail Service and any information disclosed by SkillsTrail to User or discovered by User on his/her own accord, either directly or indirectly, in writing, orally, or by inspection of tangible objects relating to the SkillsTrail Service including without limitation application functionality, application workflow, user interface, product process, application specifications, research content, requirements templates, scorecards, vendor/product leaderboards, data, text, pictures, audio, video, logos and copy.
Customer’s Data or User’s Data means any data submitted by Customer during their use of the SkillsTrail Service.
Effective Date means the day the Customer clicks to accept this Agreement, or uses the SkillsTrail Service, whichever is earlier.
SkillsTrail Site means the web site located at http://www.SkillsTrail.com or related sub-domains.
SkillsTrail Service (or “Service”) means the SkillsTrail features available when user registers on site
2. SCOPE OF SERVICE; USAGE; ACCOUNTS; CUSTOMER DATA
Service. SkillsTrail shall provide access to Customer to SkillsTrail Service to be hosted and operated on SkillsTrail’s and associated third-party computer servers and any applicable additional services in accordance with the terms of this EULA and the terms on SkillsTrail Site.
User. A subscriber to Free or Paid Service is considered a User.
Course Vendor refers to a user that has a product or service, or represents an entity that has a product or service that he/she would like to market to Users, and interact with them while responding to messages, enquiries, from Users.
Types and Cost of Service. There are two types of SkillsTrail Services: (i) Corporate or Paid Edition (“SkillsTrail Paid”) wherein a user pays SkillsTrail a monthly, quarterly or annual subscription fee for access to the SkillsTrail Service and the access Premium features; and (ii) Community or Free Edition (“SkillsTrail Free”) wherein a user does not pay SkillsTrail to use the SkillsTrail Service but his/her usage is subject to usage data being shared with paying third-parties. The associated functionality for both editions is defined by SkillsTrail and is subject to change at any time. Also, the associated fees for the Service are subject to change from time to time. For the SkillsTrail Paid edition, SkillsTrail charges fees that are current at the time of usage. Any and all unpaid or free usage of Service reverts to Free Edition.
Quality of Service. SkillsTrail’s intention is to provide Service to both Users and Vendors, and the Service is to be used on an “as is” basis. SkillsTrail does not verify User or Vendor credentials, nor does SkillsTrail provide any guarantee, implicit or explicit, of any kind whatsoever to Users or Vendors. SkillsTrail does not guarantee the authenticity, reliability or assurance to Users regarding the performance of the Service, or regarding any Vendor. Also, SkillsTrail does not provide any guarantee, explicitly or implicitly, to Vendors that any leads will ever seek to purchase products or services from Vendor or will ever become customers of Vendor.
Customer Accounts. When a User signs up for the SkillsTrail Service, SkillsTrail will automatically create an account (“Account”) for the User. If required, Users may create multiple Accounts for their convenience, however User is required at all times to enter accurate data about themselves. This will allow SkillsTrail to remain an open, honest and vibrant community of professionals allowing Users to control their individual privacy settings. The User who registers for the SkillsTrail Service on behalf of a Business, Government or Non- Profit Entity (“Entity”) is considered to be an agent of that Entity and shall be deemed the Account owner (“Account Owner”) for that Entity, unless the Entity designates another User as the Account Owner. A Customer may designate any other User to be an Account Owner for the entity by contacting SkillsTrail at support@SkillsTrail.com. There could be several Users associated or linked with an Entity’s Account. Customer is responsible for all activity occurring under its Account and for the Entity(ies) they are linked to.
User’s or Customer’s Data. SkillsTrail does not own any of the Customer’s Data. Customer is solely responsible for the accuracy, integrity, and legality of Customer’s Data. Notwithstanding anything to the contrary in this Agreement, SkillsTrail shall not be responsible or liable for the deletion, corruption, correction, destruction, damage, loss or failure to any of Customer’s Data. Customer shall not knowingly send or store spam, unlawful, infringing, obscene, or libelous material, or viruses, worms, Trojan horses and other harmful code, or data which violates the rights of any individual or entity established in any jurisdiction including, without limitation, medical information, credit card information or social security numbers, driver’s license or personal identification numbers or account numbers on, to or from the SkillsTrail Service. Customer represents and warrants that it is in compliance with and will comply with all applicable privacy and data protection laws and regulations with respect to any of Customer’s Data uploaded or submitted to the SkillsTrail Service and its use of the SkillsTrail Service and performance of its obligations under this Agreement. Customer will indemnify, defend and hold SkillsTrail harmless from any claims, losses and causes of action arising out of or related to Customer’s breach of this Section 2.8. In the case of SkillsTrail Free edition Users, SkillsTrail may share User’s Data and/or usage statistics with one or more paying third-parties, in order to be able to provide Service for free to User.
User IDs and Security. A User may invite and allow any other User to use the SkillsTrail Service. No User ID may be shared by more than one User. User is entirely responsible for maintaining the confidentiality of its own User IDs and Account information, as well as maintaining the confidentiality of any Entities they are associated with on SkillsTrail. User acknowledges and agrees that as between the parties, User is solely responsible for User’s use of SkillsTrail and all acts, omissions and use of User IDs or passwords or in connection with SkillsTrail.
3. USER CONDUCT/ACCEPTABLE USE POLICY
Users may not use the SkillsTrail Service in any way that violates applicable federal, state, or international law, or for any unlawful purpose. Users may not use the SkillsTrail Service to send, receive, or download messages or materials that are inappropriate or violate the intellectual property rights of SkillsTrail or others. Users are entirely responsible for the content of, and any harm resulting from any of their postings or submissions to the SkillsTrail Site and SkillsTrail Service (collectively, “Contributions”). As a User or Customer, when you create or make available a Contribution, you represent and warrant that you:(a) will not attempt to harm, disrupt, or otherwise engage in activity that diminishes, the SkillsTrail Site, computer systems and network, or the SkillsTrail Service and will not post Contributions that constitute, contain, install or promote spyware, malware or other computer code, whether on SkillsTrail’s or others’ computers or equipment, designated to enable you or others to gather information about or monitor the online or other activities of another party;
(b) will not attempt to interfere with any other person’s use of the SkillsTrail Service;
(c) will not misrepresent your identity or impersonate any person or entity, sell or let others use your profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity. This includes linking with (or attempting to link), or claiming access (or attempting to claim access) to a Company or any associated artifacts and resources including Projects and Products within SkillsTrail if you are not employed by or affiliated in an official capacity with that company. Such an action may result in SkillsTrail revoking access to that Company and all associated artifacts and resources and in turn, granting those to other authorized users.
(d) will not attempt to gain access to any account, computers or networks related to the SkillsTrail Service without authorization;
(e) will not attempt to obtain any data through any means from the SkillsTrail Service, except if we intend to provide or make it available to you;
(f) will not attempt to charge others to use the SkillsTrail Service either directly or indirectly;
(g) will not use the SkillsTrail Service to participate in pyramid schemes or to transmit chain letters, or to create an undue burden on the SkillsTrail Site or the networks or services connected to the SkillsTrail Site, including, without limitation, hacking into the SkillsTrail Site, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;
(h) will not use the SkillsTrail Service for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited e-mail or communications or unsolicited commercial e-mail or other communications or engaging in unauthorized framing of, or linking to, the SkillsTrail Site without the express written consent of SkillsTrail;
(i) will not post Contributions that (1) are defamatory, damaging, disruptive, unlawful, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable or incite, encourage or threaten immediate physical harm against another, including but not limited to Contributions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual, or (2) contain material that solicits personal information from anyone under 18 or exploits anyone in a sexual or violent manner;
(j) will not use the SkillsTrail Service to send or otherwise make available, any Contribution unless you own or have sufficient rights to such Contribution or have received all necessary consents to post such Contribution;
(k) will not post Contributions that violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of SkillsTrail or any other person;
(l) have fully complied with any third-party licenses relating to Contributions, agree to pay for all royalties, fees and any other monies owing any person by reason of Contributions that you posted to or through the SkillsTrail Site;
(m) will not use the SkillsTrail Service to send or otherwise making available any material that contains viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another’s computer or property;
(n) will not use the SkillsTrail Service to download any material sent by another user of the SkillsTrail Service that you know, or reasonably should know, cannot be legally distributed in such manner;
(o) will not use the SkillsTrail Service to violate any code of conduct or other guidelines which may be applicable to the SkillsTrail Service or the SkillsTrail Site;
(p) will not attempt to modify, translate, adapt, edit, copy, decompile, disassemble, or reverse engineer any software used or provided by SkillsTrail in connection with the SkillsTrail Site, SkillsTrail Service; or
(q) will not post Contributions that contain advertisements or solicit any person to buy or sell any products or services (other than those provided and approved by SkillsTrail).
4. GRANT OF LICENSE TO SKILLSTRAIL
As between you and SkillsTrail, you exclusively own all rights in and to the Contributions that you submit to the SkillsTrail Site. SkillsTrail needs a limited license from you so that we can use your Contributions to make the SkillsTrail Service and SkillsTrail Site available to you. By making a Contribution to the SkillsTrail Site, you grant to SkillsTrail a limited, perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to SkillsTrail), fully- paid, royalty-free (meaning that SkillsTrail is not required to pay you to use your Contribution), sub-licensable (subject to the restrictions below), transferable (solely because we need the right to transfer this license to a successor SkillsTrail Site operator) and worldwide (because the Internet and the SkillsTrail Site are global in reach) license to use, modify, perform, display, reproduce and distribute the Contribution for the sole purpose of operating the SkillsTrail Site and SkillsTrail Service. SkillsTrail needs the right to “modify” and “reproduce” your Content, because the software and servers hosting the SkillsTrail Site modify and reproduce your Content automatically in order to make the SkillsTrail Site and SkillsTrail Service available.We will only sublicense your Contribution for the following purposes: (a) to make your Contributions available to any third party (such as a client or a contractor) that you permit to view your Product and/or Project pages on the SkillsTrail Site; and (b) to permit a third party hosted services provider to host the SkillsTrail Site. We may make Non-Identifying Information about your Products or Projects to Vendor Users so they can utilize Campaigns/Reports/Actions within SkillsTrail to provide you with information about their products and services. Further, if you are a User of the SkillsTrail Free edition, you grant SkillsTrail the right to be able to share your identity, Service activity and usage, and Contributions with paying third-parties, such that the Service can be provided to you for free.
A User shall not: (a) rent, lease or loan the SkillsTrail Service; (b) conduct automated functionality tests or load tests on the SkillsTrail Service; (c) attempt to gain access to data that is not User’s Data, or use a disproportionate amount of the SkillsTrail Service that interrupts or degrades the SkillsTrail Service; or (d) use the SkillsTrail Service in any manner that violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right.
6. MAINTENANCE AND SUPPORT
SkillsTrail will provide maintenance and support services of SkillsTrail in accordance with the terms of this Agreement. SkillsTrail’s obligations, if any, to provide maintenance and support is subject to the following: (a) User shall provide SkillsTrail with access to itself and its personnel to duplicate and resolve errors; (b) User shall provide supervision, control and management of the use of the SkillsTrail Service; (c) User shall document and promptly report all errors or malfunctions in the SkillsTrail Service to SkillsTrail, and (d) User shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from SkillsTrail.
7. Cost of Fees.
In the case of SkillsTrail Paid edition, the amount of Fees for various levels, modules and packages of SkillsTrail usage are different based on various criteria including but not limited to # of features in use, and the current Fees are disclosed to Customer by authorized SkillsTrail personnel. Customer is responsible for all taxes, other than taxes levied on SkillsTrail’s income. Fees do not include any applicable taxes. If SkillsTrail is required to pay any sales, use, goods and services, value added, or other taxes in relation to Customer’s use of SkillsTrail, those taxes will be billed to and paid by Customer. If Fees are delayed by Customer and subsequently, there are additional costs incurred by SkillsTrail to collect Fees from Customer, Customer agrees to reimburse SkillsTrail for all such additional costs including costs of collection, attorney’s fees, court costs, filing fees, and related expenses incurred on all unpaid Fees along with any interest or penalties that SkillsTrail may reasonably charge on all late / unpaid Fees.
8. TERM, TERMINATION AND SURVIVAL
Term. This Agreement shall begin on the Effective Date and continue until terminated by either SkillsTrail or Customer in accordance with this Agreement. Customer can terminate this Agreement via written notice or email to SkillsTrail at support@SkillsTrail.com.
Termination. Either party may immediately terminate this Agreement as follows: (a) if either party materially breaches its obligations under this Agreement and fails to cure such breach within thirty (30) days after it has been notified in writing of such breach; or (b) if either party has instituted against it any proceedings seeking relief, reorganization or arrangement under any laws relating to insolvency and such proceeding is not resolved within sixty (60) days.
Survival. All provisions of this Agreement, which by their terms or import are intended to survive such cancellation or termination, shall survive.
9. NO LICENSE; INTELLECTUAL PROPERTY OWNERSHIP
SkillsTrail hereby reserves all right, title and interest in and to the SkillsTrail Service and all intellectual property rights related thereto not expressly granted in this Agreement. A User shall not reverse engineer or otherwise attempt to derive source code from the SkillsTrail Service or any associated artifacts.
Definition. “Confidential Information” shall have the meaning as defined above within this Agreement.
Non-Disclosure and Non-Use Obligation. Recipient shall not make use of (except for purposes of this Agreement), or disseminate or in any way disclose Discloser’s Confidential Information. Recipient shall treat Discloser’s Confidential Information with the same degree (but not less than a reasonable degree) of care as it accords its own confidential information. Recipient may disclose Confidential Information only to its employees who need to know such information and certifies that its employees have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement. Recipient will immediately give notice to Discloser of any unauthorized use or disclosure of Discloser’s Confidential Information and will use all commercially reasonable efforts to assist Discloser in remedying any such unauthorized use or disclosure.
11. DISCLAIMER OF WARRANTY
USER AGREES THAT USER’S ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE, THE SKILLSTRAIL SERVICE IS AT USER’S SOLE RISK. THE SKILLSTRAIL SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, AND SKILLSTRAIL AND ITS CONTRACTORS AND LICENSORS, AS APPLICABLE, MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. USER ACKNOWLEDGES THAT THE OPERATION OF THE SKILLSTRAIL SERVICE MAY NOT BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE. THE SKILLSTRAIL SERVICE MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND SKILLSTRAIL SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO CUSTOMER.
12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SKILLSTRAIL AND ITS CONTRACTORS OR LICENSORS, WILL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ACCESS TO OR USE OF THE SKILLSTRAIL SERVICE, EVEN IF SUCH PARTIES WERE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY FOR ANY AND ALL OF CUSTOMER’S CLAIMS AGAINST SKILLSTRAIL AND ITS CONTRACTORS AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE VALUE PAID FOR USE OF THE SKILLSTRAIL SERVICE DURING THE 3- MONTH PERIOD PRIOR TO THE DATE A CLAIM IS MADE. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO SUCH CUSTOMERS.
13. INDEMNIFICATION BY CUSTOMER
Customer will defend or settle, at Customer’s expense, any action brought against SkillsTrail based upon the claim that any modifications Customer makes to the SkillsTrail Service or any combination of the SkillsTrail Service with SkillsTrail Service or other items not approved by SkillsTrail infringes or violates any third party intellectual property right.
14. GOVERNMENT REGULATIONS
Customer shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
15. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of the State of Colorado, without regard to that state’s conflict of laws principles. Each party accepts unconditionally the jurisdiction and venue of the state and federal courts located in Denver County, Colorado. 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.
16. INJUNCTIVE RELIEF
Customer understands and agrees that its breach of this Agreement will cause SkillsTrail irreparable damage for which recovery of money damages would be inadequate, and that SkillsTrail shall therefore be entitled to obtain timely injunctive relief to protect SkillsTrail’s rights under this Agreement in addition to any and all remedies available at law.
This Agreement is the entire agreement between the parties on the subject matter hereof. No amendment or modification hereof will be valid or binding upon the parties unless made in writing and signed by the duly authorized representatives of both parties. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other. In the event that any provision of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Customers may not assign this Agreement (by operation of law or otherwise) without the prior written consent of SkillsTrail and any prohibited assignment will be null and void.
This Agreement will be binding upon and will insure to the benefit of the parties permitted successors and/or assignees. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.