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Terms of Service
Subscription & Services Agreement

Version Date:  December 11, 2024

(with effect on January 14, 2025, these terms replace the prior Terms of Service & License Agreement for all new customer purchases and renewals of prior purchases which reference Skillibrium’s online end user terms and conditions)

For Enterprise Subscribers (as defined below): The entity or other organization you represent may enter into a separate Subscription and Services Agreement (“SSA”) governing the purchase and use of Skillibrium’s SaaS Service, Ancillary Software, and Services (as each are further defined below, collectively, the “Skillibrium Offerings”). If so, that executed SSA shall govern the entity’s (and its below-defined Authorized Users’) use of Skillibrium’s Site and any other Skillibrium Offerings.

Skillibrium, Inc., a Delaware corporation (“Skillibrium”), makes available certain websites including, without limitation, www.Skillibrium.com and all subdomains (collectively, the “Site”), software-as-a-service and related mobile applications (collectively, the “SaaS Service”), complementary software applications including templates (“Ancillary Software”), and other services, including, without limitation, learning content, ratings, coaching, suggestions and/or corrections (collectively, the “Services”), to help people learn, practice, execute skills, coach or receive coaching, and develop and perform professional skills more effectively. In the absence of a separately executed SSA, your own and any entity you represent’s access to and use of any Skillibrium Offerings, as well as any future Skillibrium Offerings, are governed by this Terms of Service: Subscription and Services Agreement (this “Agreement”).

This Agreement is a legally binding agreement. If you don’t understand this Agreement or do not agree to be bound by it or the terms included in it, please do not use Skillibrium’s Site or any other Skillibrium Offerings. By accessing or using any Skillibrium Offerings you are agreeing to the terms and conditions within this Agreement.  If you are an individual subscriber or are otherwise only browsing the Site, this Agreement is between you, individually, and Skillibrium, and you are the “Customer” referenced in this Agreement and any related documents.  

If you are representing an entity that subscribes to Skillibrium Offerings, including if registered to use any of them on a trial basis (an “Enterprise Subscriber”), this Agreement is between the Enterprise Subscriber (as the “Customer” referenced in this Agreement and related documents) and Skillibrium, and shall govern access to and use of the Site, SaaS Service, Ancillary Software, and Services by Customer and its authorized users, including you (“Authorized Users”).  In the event a Customer team leader or other Authorized User registers to use any Skillibrium Offerings (including on a trial basis), Customer, together with all of Customer’s Authorized Users (including those registered on a trial basis) shall be deemed to have agreed to be bound by this Agreement. 

This Agreement contains an arbitration agreement, which will, with exceptions, require Customer to submit any claims Customer may come to have against Skillibrium, its licensors or suppliers, to binding and final arbitration.  Under the arbitration agreement, Customer will only be permitted to pursue claims against Skillibrium, its licensors or suppliers, on Customer’s own behalf, not as a plaintiff or class member in any class or representative action or proceeding.  Customer will only be permitted to seek relief, including monetary, injunctive, and declaratory relief, on Customer’s own behalf, and  Customer is waiving Customer’s right to a jury trial and Customer’s right to have a claim arising under this Agreement decided by a judge or jury.

I. Licenses

  1. If Customer is an individual subscriber, the following applies: In consideration for your acceptance of this Agreement (including by default through your access to or use of any Skillibrium Offering) and your payment of all applicable Fees (as defined below), Skillibrium grants you a personal, limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and use the applicable Skillibrium Offerings during the subscription period or other period of performance stated on the Site for your registration, solely for your own purposes and only in accordance with any instruction manuals, user guides and other documentation as made available by Skillibrium from time to time (“Documentation”).
  2. If Customer is an Enterprise Subscriber, the following applies:  In consideration for the acceptance of this Agreement on Customer’s behalf (including through the execution of Order Forms or other ordering documents which include the right to access and use any Skillibrium Offerings) and Customer’s payment of all applicable Fees (as defined below), Skillibrium grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and use the Skillibrium Offerings included on the applicable Order Form(s). Customer and its Authorized Users may access and use Skillibrium’s Site and any Skillibrium Offerings  provided to Customer by Skillibrium pursuant to the Order Form(s), only for Customer’s internal business purposes (unless otherwise stated on the Order Form), and only in accordance with the Documentatio

II. RESTRICTIONS

1.Customer will not, nor will it cause its Authorized Users to, directly or indirectly:

   I- copy, modify or create derivative works based on the Site or any other Skillibrium Offerings, or any portion(s) thereof (individually and collectively, “Skillibrium IP”);

   II- distribute, transmit, publish or otherwise disseminate any Skillibrium IP;

   III- download or store any Skillibrium IP except to the extent explicitly permitted by Skillibrium (e.g., by allowing Customer to enable a certain number of Authorized Users); 

   IV- access or use any Skillibrium IP for the benefit of any third party unless specifically authorized by Skillibrium in writing (including in the applicable Order Form)

   V- access Skillibrium-hosted content or data not intended for Customer, or log onto a server or account under Skillibrium’s control that Customer is not authorized to access, or otherwise violate or attempt to violate any security or authentication feature or measures of the SaaS Service or Services;

   VI- attempt to access or derive the source code or architecture of the SaaS Service or any Auxiliary Software; 

   VII- attempt to probe, scan or test the vulnerability of the SaaS Service or any associated system or network, or to breach any security or authentication feature or measures of the Site or the SaaS Service (except with Skillibrium’s express permission), and if Customer is blocked by Skillibrium from accessing the Site or SaaS Service (including blocking Customer or any Authorized User’s IP address), Customer will not implement any measures to circumvent such blocking (e.g., by masking the IP address or using a proxy IP address);

   VIII- interfere or attempt to interfere with service to any user, host or network, including, without limitation, by means of submitting malicious software or computer code (“Malicious Code”) to the Site or SaaS Service, load testing, overloading, “flooding,” “spamming,” “mail bombing,” “crashing”, email, upload, or otherwise transmit any User Content to the SaaS Service that (a) infringes any intellectual property or other proprietary rights of any party; (b) Customer or the Authorized User does not have a right to upload under any law or under contractual or fiduciary relationships; (c) contains any Malicious Code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) poses or creates a privacy or security risk to any person or entity; (e) constitutes unsolicited or unauthorized materials; or (f) is otherwise objectionable;

   IX- automate access to the Site, SaaS Service, or the Services, including, without limitation, through the use of APIs, bots, scrapers or other similar devices;

   X- export or re-export any Skillibrium IP;

   XI- use or access the Site, any SaaS Service, Services or other Skillibrium IP in order to build a competitive product, service or solution;

   XII- violate any applicable law or regulations in connection with the use of the Site, SaaS Service, Ancillary Software or Services

   XIII- impersonate any person or entity, or falsely state or otherwise misrepresent Customer or Authorized Users’ affiliation with a person or entity; or

   XIV- permit any third party to do any of the foregoing.

2. In addition, the following additional terms and conditions shall apply to Services:


   I- Skillibrium will perform any Services described in a mutually executed statement of work (“SOW”) or Order Form. Services shall not constitute works-for-hire. Skillibrium shall perform Services remotely on a fixed fee basis unless otherwise set forth in the applicable SOW or Order Form. Skillibrium will invoice Customer and Customer shall pay the  fixed fees for the Services in accordance with this Agreement.   

   II- If the parties agree to Skillibrium performing Services on-site for Customer in the applicable SOW or Order Form, any project-related travel expenses are not included in the fixed fee and will be invoiced separately to Customer monthly in arrears as incurred. If performing Services at Customer’s site, Skillibrium will comply with all applicable Customer network and safety rules, guidelines and policies that do not conflict with the terms of this Agreement and any policies or documents incorporated by reference herein.

   III- Skillibrium will commence and terminate Services on the dates or times agreed with Customer in the applicable SOW or Order, unless earlier terminated in accordance with this Agreement.

   V- [reserved] 

   VI- Skillibrium may suspend Services if Customer fails to pay all applicable and undisputed fees when due.

   VII- If Customer delays the scheduled start of contracted Services, Skillibrium may demand that Customer reimburse Skillibrium for any actual non-refundable costs incurred by Skillibrium (including for expenses and contractors) due to the delay.  Customer may terminate Services then underway by giving ten (10) days’ prior written notice to Customer; termination shall be effective ten (10) days after Skillibrium’s receipt of the notice. If Customer terminates Services before the agreed end of a Services engagement set forth in the applicable SOW or Order and before Customer has paid for the Services, Customer shall pay fees to Skillibrium based on the proportionate part of the fixed fee for Services performed prior to the termination date, as well as reasonable and actual costs (including for expenses and contractors) incurred by Skillibrium through the effective date of the termination.

   VIII- Skillibrium is an independent contractor and is solely responsible for all taxes, withholdings, and other similar statutory obligations, including but not limited to Worker’s Compensation Insurance associated with its personnel. Nothing herein shall form or be construed to form a joint venture or partnership.

3. Skillibrium may offer certain software in object code form, including certain interfaces or templates (“Templates”), for download from the Site for use with the SaaS Service or Services (“Ancillary Software”). Subject to the other terms and conditions of this Agreement, Customer may install and use Ancillary Software on computers owned, leased, or otherwise controlled by Customer, solely in conjunction with Customer’s authorized use of the SaaS Service and Services. Upon expiration or termination of this Agreement for any reason, Customer shall cease any further use of the Ancillary Software and shall promptly destroy all copies thereof in Customer’s possession.

4. Certain features of the SaaS Service or specific Ancillary Software may be subject to specific additional limitations, restrictions, terms and/or conditions (“Specific Terms”). In such cases, the applicable Specific Terms will be made available to Customer and its access to, and use of, the applicable SaaS Service or Ancillary Software will be contingent upon Customer’s acceptance of and compliance with such Specific Terms.

5. Certain Services or additional features of the SaaS Service or Ancillary Software may be accompanied by, or include instructions for Customer to download, separate third party software, code or related materials, including “open source” or “freeware” software (“Third Party Components”). Where Customer’s use of Third Party Components with Skillibrium Offerings is subject to separate license terms, Skillibrium will provide access (as an attached file or link) to the separate license terms.  Such separate license terms shall supersede and replace the terms of this Agreement governing Customer’s use of those Third Party Components. 

III. REGISTRATION AND SECURITY

  1. If Customer is an individual subscriber, the following applies: 

By completing the registration process for any given Services, you are agreeing to subscribe to the selected Skillibrium Offerings, subject to the terms and conditions of this Agreement.

2. If Customer is an Enterprise Subscriber, the following applies: 

a. Customer shall provide Skillibrium with accurate and complete registration information for all Authorized Users and shall promptly notify Skillibrium in the event of any changes to any such information.

b. Customer shall be solely responsible for the security and proper use of all user IDs, passwords or other security devices used in connection with the Site or Skillibrium Offerings, and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to or used by any other person or entity. Customers shall immediately inform Skillibrium if there is any reason to believe that a user ID, password or any other security measure issued by Skillibrium has or is likely to become known to someone not authorized to use it, or is being, or is likely to be, used in an unauthorized way. Skillibrium reserves the right (at its sole discretion) to request that Customer changes the password(s) in connection with Skillibrium Offerings, and Customer shall (and shall cause Authorized Users to) promptly comply with any such request.

c. Customer shall be solely responsible for all activity in connection with access to the Site or Skillibrium Offerings through Customer’s account or using Customer’s passwords, and for the security of Customer’s (including all Authorized Users’) computer systems, and in no event shall Skillibrium be liable for any loss or damages relating to such activity.

IV. FEES AND PAYMENT

  1. If Customer is an individual subscriber, the following shall apply: 

    a- if you have registered to use certain Skillibrium Offerings on a trial basis, then you may use the Skillibrium Offerings only for noncommercial evaluation purposes during the applicable trial period;  

    b- your access to or use of Skillibrium Offerings shall be contingent upon your payment of all applicable fees as described on the Site at the time (“Fees”). You’re responsible for all applicable taxes, and we’ll charge tax in addition to the Fees when required to do so.

    c- upon registering for Services, you will be required to designate a valid payment method. You hereby authorize Skillibrium to charge to your designated account all Fees relating to the Services you select, and you agree to pay all such Fees in accordance with the applicable payment method terms and conditions.

    d- Skillibrium reserves the right to revise its Fees, including by increasing or adding new Fees applicable to your next renewal, at any time on ten (10) days’ notice. Such notice may be sent to you by email to your most recently provided email address or posted on the Site or by any other manner chosen by Skillibrium in its commercially reasonable discretion. You will be deemed to have received any such notice that is posted on the Site on the day it was posted. Your use of the Services after the ten (10) day notice period constitutes your acceptance of the new or revised Fees. If you do not agree to the revised Fees, you may have the option to cancel your subscription.  To understand your cancellation options, follow the “View cancellation instructions” link below. 

    e- Continuous membership.  To ensure your uninterrupted access to the Site and your Skillibrium Offerings, your initial subscription and each renewal of your subscription will automatically renew for an equivalent Renewal Term unless we hear from you that you want to change or cancel your subscription at least 30 days prior to the start of the next renewal subscription period. You hereby authorize Skillibrium to charge subscription Fees for each Renewal Term to the payment method we have for you on file. During the Term, your subscriptions will renew at the subscription level(s) and Fees in effect at the time their then-current subscription period ends. “Term” and “Renewal Term” are defined in Part 2 of Section V (Term and Termination) below.

    f- Free trial.  From time to time, Skillibrium may offer you a free trial subscription to certain Skillibrium Offerings (a “Trial”). By accessing or using the Skillibrium Offerings for trial, you agree to the terms applicable to the Trial and further agree to any changes Skillibrium may make to the Trial as described below in Section IX (Changes to Services or Terms. If you cancel the Services before the end of the trial period, all your rights to any remaining free trial period will be waived.  

    2. If Customer is an Enterprise Subscriber, the following shall apply: 

    a- Skillibrium will invoice Customer based on the fees specified in the applicable Order Form (“Fees”) and any other amounts owing under this Agreement. Fees and other charges will be invoiced and payable by Customer in U.S. Dollars, unless otherwise agreed by Skillibrium and specified in the Order Form generated by Skillibrium. If Customer’s use of the SaaS Service or Services or any feature thereof requires the payment of additional fees per the terms of the Order Form, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided in the Order Form. Skillibrium reserves the right to revise the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term (as defined in part 2 of Section V (Term and Termination) below. If Customer reasonably believes that Skillibrium has billed Customer incorrectly, Customer must notify Skillibrium no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.

    b- Subject to the terms set forth in the Order Form, Skillibrium must receive Customer’s full payment of the amounts payable and due under an invoice within thirty (30) days of the invoice date. Unpaid amounts, unless disputed in good faith, may result in Skillibrium’s immediate termination or suspension of this Agreement, in Skillibrium’s sole discretion. For the avoidance of doubt, if Customer reasonably and in good faith disputes any portion of the Fees and other charges set forth in an invoice, (i) Customer must pay all undisputed amounts due in accordance with the requirements of this paragraph and, for clarity, Customer may only withhold that portion of the amount due that is the subject of such good faith dispute, (ii) the Parties will work together to resolve such dispute in good faith, and (iii) the disputed amounts will be due and payable by Customer within fifteen (15) days from the resolution of the dispute.  Pursuant to Section 2 immediately below, Customer shall be responsible for all taxes associated with services contemplated under the Order Form.

    3. Fees quoted to Customer on the Site or in an Order Form do not include any applicable taxes, levies, duties, or similar governmental assessments of any nature, including, for example, goods and services tax, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer shall be responsible for all Taxes associated with Skillibrium Offerings for which Customer has registered or are included in an Order Form, other than Taxes assessed against Skillibrium based on Skillibrium’s income, property, or employees. If Skillibrium has the legal obligation to remit or collect Taxes for which Customer is responsible, Skillibrium will invoice the Taxes owing to Customer, and Customer will pay them unless Customer provides Skillibrium with a valid tax exemption certificate.

V. TERM AND TERMINATION

  1. The “Effective Date” of this Agreement is the effective date mentioned in the initial Order Form entered into by Customer and Skillibrium referencing this Agreement.
  2. Subject to earlier termination as provided below, this Agreement commences on the Effective Date and shall remain in effect for the initial subscription term as specified upon registration in the Site or otherwise in the applicable Order Form (“Initial Term”).  Thereafter this Agreement shall automatically renew for an equivalent additional subscription term (“Renewal Term”) at the end of the Initial Term or current Renewal Term unless either party provides the other party with at least thirty (30) days’ written notice of its intention not to renew prior to the start of the next Renewal Term (collectively, the Initial Term and any Renewal Terms are the “Term” of the Agreement).
  3. In addition to any other remedies a Party may have, either Party may also terminate this Agreement upon thirty (30) days’ notice (or by Skillibrium immediately upon notice in the case of non-payment by the payment due date), if the other Party materially breaches any of the terms or conditions of this Agreement and fails to cure such material breach within such thirty (30) days period. 
  4. Further, upon written notice (for which purpose email will suffice), Skillibrium may terminate the Agreement if a material change of circumstances, including a condition or circumstance of which Skillibrium was not aware (or could not reasonably have been aware) becomes apparent, such that Skillibrium, acting reasonably, determines that continuing to provide Skillibrium Offerings as contemplated under the applicable Order Form is not feasible in accordance with this Agreement.  In such circumstance, Customer shall pay for the SaaS Service and any continuing Services on a pro-rated basis up to and including the last day on which Skillibrium provides the SaaS Service and/or Services. 
  5. All sections of this Agreement, which by their nature should survive termination or expiration of the Agreement, will survive termination or expiration, including, without limitation, accrued rights to payment, confidentiality obligations, ownership of intellectual property rights, Skillibrium’s right to use feedback, warranty disclaimers, indemnification obligations, and limitations of liability and miscellaneous provisions.
  6. Upon termination or expiration of the Agreement, (i) Skillibrium shall cease to provide and shall revoke Customer’s access to the SaaS Service and/or all licenses/works/developments and/or Services in respect of this Agreement; (ii) all User Content in Customer’s account(s) will be deleted after 30 days (or sooner if Skillibrium receives Customer’s earlier written request) in accordance with Skillibrium’s Privacy Policy, provided that Skillibrium may retain certain statistical data regarding Customer’s account(s) unless Skillibrium receives Customer’s express written request to remove the same; (iii) Customer shall immediately stop using the SaaS Service, any Ancillary Software or Services; and (iv) Customer will not be relieved of its then-current payment obligations to Skillibrium and any outstanding payments will be due and payable immediately on expiration or termination. 

VI. ACCESS TO THE SAAS SERVICE AND SERVICES

Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to and access the SaaS Service or otherwise use or participate in the Services, including, without limitation, modems, hardware, operating software, internet service and telecommunications capacity. Customer shall be solely responsible for ensuring that such equipment and ancillary services are compatible with the SaaS Service, any Ancillary Software, and the Services.

VII. MOBILE SERVICES

The Site and Skillibrium Offerings may include products and services that are available via a mobile device, including (i) the ability to upload User Content to the SaaS Service via a mobile device, (ii) the ability to browse the SaaS Service and the Site from a mobile device, and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, “Mobile Services”). Customer acknowledges that, to the extent any Authorized User accesses the Site, SaaS Service or the Services through a mobile device, its wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by its carrier, and not all Mobile Services may work with all carriers or devices.  By using the Mobile Services, Customer (including all Authorized Users) agrees that Skillibrium may communicate with Customer and/or any Authorized Users regarding Skillibrium and other entities by electronic means to mobile devices and that certain information about their usage of the Mobile Services may be communicated to Skillibrium. In the event any Authorized User changes or deactivates such Authorized User’s mobile telephone number, such Authorized User agrees to promptly updated account information to ensure that messages are not sent to the next owner of that mobile telephone number.

VIII. USER CONTENT

  1. “User Content” refers to the text, documents, and other content and information that Customer (including all Authorized Users) enters, uploads, and transmits during use of the Site and Skillibrium Offerings.  Customer (including all Authorized Users) hereby grants Skillibrium a license to such User Content for the limited purposes of:

    I- protecting the Site and Skillibrium Offerings (e.g., Skillibrium may analyze patterns in usage to prevent abuse);

    II- creating an enhanced user experience of the Site and Skillibrium Offerings (for example, Skillibrium may use the User Content to create personalized suggestions for Authorized Users); and 

    III- developing and enhancing technologies and services (e.g., adding additional materials to Templates or questions within Skillibrium’s coaching feature). 

    2. The above license shall allow Skillibrium to, solely for the purposes outlined above, store, reproduce, use, publish and publicly display to Customer (including the applicable Authorized User), modify and create derivative works of (e.g., providing coaching feedback, account or opportunity plan suggestions), and permit Skillibrium’s service providers to process, the User Content, solely for the purpose of helping Skillibrium provide and improved the Site and Skillibrium Offerings to Customer. 

    3. Skillibrium does not own, control, verify, or endorse any User Content. Customer (including each applicable Authorized User) shall be solely responsible for all User Content.

    4. If Customer is an Enterprise Subscriber, Customer agrees that Skillibrium and its affiliates can (i) publish the fact that Customer has become a Skillibrium customer, (ii) name Customer as a reference, and (iii) use Customer’s company logo and trademark for the purpose referred to in this clause, providing that any such use will be subject to Skillibrium’s compliance with any written guidelines that Customer may provide to Skillibrium regarding the use of Customer’s company name and logo.

IX. CHANGES TO SERVICES OR TERMS

Skillibrium reserves the right at any time to (i) change any information, specifications, features or functions of the Site, Services or the SaaS Service, (ii) suspend or discontinue, temporarily or permanently, the Site and any or all Skillibrium Offerings, including the availability of any feature, database, Template or Skillibrium-supplied content, and  (iii) impose limits on certain features and services or restrict access to parts or all of the SaaS Service or Services, in each case with or without prior notice and without any liability to Customer (including all Authorized Users) or any third party. Skillibrium will use its commercially reasonable efforts to notify Customer of changes to the SaaS Service and/or Services that, in Skillibrium’s reasonable opinion, have the effect of materially and adversely diminishing the functionality of the 

X. DATA COLLECTION AND PRIVACY

  1. Skillibrium does not collect personal information from Customer (including all Authorized Users) except to the extent as provided in Skillibrium’s Privacy Policy at https://skillibrium.com/privacy-policy/ (the “Privacy Policy” as may be updated by Skillibrium from time to time, and which is hereby incorporated by reference).
  2. Skillibrium may engage third parties to conduct risk control and fraud detection/prevention activities. As part of such engagements, if Customer (including all Authorized Users) initiates a transaction on the Site, the SaaS Service, or through the Services, Skillibrium may give such third parties access to Customer’s (and any Authorized Users’) pertinent credit card information and other personal information. Such third parties may only use such personal information for purposes of performing risk control and fraud detection/prevention activities relating to transactions with Skillibrium. However, they may also convert such personal information into hashed or encoded representations of such information to be used for statistical and/or fraud prevention purposes. By initiating a transaction on the Site, Customer (including all Authorized Users) hereby consents to the foregoing disclosure and use of Customer’s and/or the applicable Authorized User’s information.
  3. Consent to receive Email.  Customer’s (or Authorized Users’) registration to use the Site and/or Skillibrium Offerings constitutes consent to receive email communications from Skillibrium, including messages regarding customer service issues and other matters. Customer (or each Authorized User individually) may opt out from receiving email correspondence using the link provided in Skillibrium emails.  Customer (or any Authorized Users) may not opt out from Skillibrium emails providing technical notifications or regarding the customer relationship such as the administration of Customer’s (or an Authorized User’s) account or Customer’s (or an Authorized User’s) use of the Site and Skillibrium Offerings.

XI. CONFIDENTIALITY

  1. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business that is marked as confidential or proprietary at the time of disclosure or that reasonably should be considered confidential or proprietary based on the nature of the information and the circumstances surrounding the disclosure (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Skillibrium includes (i) non-public information regarding features, functionality and performance of Skillibrium Offerings; and (ii) information provided by Skillibrium to Customer pursuant to this Agreement and the Order Form, including without limitation, pricing.
  2. The Receiving Party agrees: (i) to take reasonable precautions to protect the Disclosing Party’s Proprietary Information, and (ii) not to use (except in performance of the obligations contemplated herein or as otherwise permitted herein) or divulge to any third person the Disclosing Party’s Proprietary Information other than to those among the Receiving Party’s employees, representatives, non-employee business, legal, financial and other advisors, and agents with a need to have access to the Proprietary Information for the purposes of this Agreement and who are bound to written or statutory duties of confidentiality at least as stringent as this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public other than by a breach of this Agreement by the Receiving Party, or (b) was in the Receiving Party’s possession or was known by the Receiving Party, prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to the Receiving Party without restriction by an independent third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law or court order, provided that if the Receiving Party is required by law to disclose the Disclosing Party’s Proprietary Information, the Receiving Party shall beforehand notify the Disclosing Party of the requirement, to the extent legally permitted, and consult with the Disclosing Party regarding the manner of such disclosure.
  3. Notwithstanding anything to the contrary, Skillibrium shall have the right to access, collect, use, process, store, and analyze meta data and other information obtained through the Site relating to the provision, use and performance of various aspects of the SaaS Service and Services and related systems and technologies, and Skillibrium will be free (during and after the Term) to use such information and data to (i) develop, improve and enhance Skillibrium Offerings, and for other development, diagnostic and corrective purposes in connection with the provision of Skillibrium Offerings; and (ii) produce data, information or other materials that are aggregated, anonymized, and de-identified and cannot reasonably be linked to Customer or a particular individual or company (such data, information and materials, the “Anonymized Data”). Anonymized Data shall not be considered Customer’s Proprietary Information.  Skillibrium may use, process, store, disclose, commercialize and transmit Anonymized Data for any purpose and without restriction or obligation to Customer of any kind.
  4. The Receiving Party shall, upon the Disclosing Party’s written request, securely destroy or return all of the Disclosing Party’s Proprietary Information (including copies thereof) in the Receiving Party’s custody or control.

XII. INTELLECTUAL PROPERTY AND FEEDBACK

  1. All intellectual property rights in and to User Content are and shall remain Customer’s property, and Skillibrium shall acquire no right of ownership with respect to User Content.
  2. All intellectual property rights in and to the Site, the SaaS Services, Ancillary Software, and Services and other Skillibrium IP, are and shall remain the sole property of Skillibrium and its affiliates and licensors, as applicable, and Customer (including all Authorized Users) shall acquire no right of ownership or use with respect to any Skillibrium IP except as specified in this Agreement. Without limiting the foregoing, Customer (including and on behalf of all Authorized Users) acknowledges that the Site and other Skillibrium Offerings, as well as any inventions, know-how and methodology embodied in the foregoing, are proprietary to, and contain valuable trade secrets of, Skillibrium, its affiliates, and licensors, as applicable, and that the Site and the Skillibrium Offerings constitute Proprietary Information of Skillibrium. 
  3. Customer (including Authorized Users) may from time to time provide Skillibrium with suggestions, comments, recommendations, improvements, solutions, bug fixes, features, concepts, techniques, ideas, know-how and/or any feedback regarding Skillibrium Offerings (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily. As between Customer (including all Authorized Users) and Skillibrium, all Feedback shall be exclusively owned by Skillibrium, and Customer (for itself and all Authorized Users) hereby makes all assignments necessary to accomplish the foregoing ownership, and Skillibrium shall be freely entitled to reproduce, prepare derivative works, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute and otherwise use and exploit any and all such Feedback as Skillibrium deems appropriate, at its sole discretion, without any obligation (including reference or credit to Customer or an Authorized User) or liability of any kind to Customer (including all Authorized Users) or any other person or entity.

XIII. INDEMNITY

Customer shall indemnify, release and hold harmless Skillibrium and its parent companies, subsidiaries, affiliates, licensors and suppliers, and each of their respective officers, directors, employees, non-employee business, legal, financial and other advisors, and agents, from and against any loss, liability (including settlements, judgments, fines and penalties) and costs (including reasonable attorney fees, court costs and other litigation expenses) relating to any claim or demand made by any third party due to or arising out of (i) any User Content, (ii) access to any Skillibrium Offerings in violation of this Agreement or applicable laws; (iii) violation of this Agreement by Customer or any Authorized User, or (iv) infringement of any intellectual property or other right of any person or entity by Customer or any Authorized User.

XIV. WARRANTY DISCLAIMERS

To the maximum extent permitted by law, Skillibrium and its licensors and suppliers expressly disclaim any and all warranties and conditions, express or implied, regarding any Skillibrium Offerings, including but not limited to, any implied warranties or conditions of merchantability, quality, fit for purpose, title, noninfringement, satisfactory quality or arising from a course of dealing, law, usage, trade or practice, or regarding security, reliability, timeliness and performance. Customer (for itself and all Authorized Users) agrees that its use of the Site and other Skillibrium Offerings is at Customer’s own sole risk and that all Skillibrium Offerings are provided on an “as is” “as available” “with all faults” basis without warranties of any kind either expressed or implied. Without limiting the foregoing, Skillibrium and its licensors, and its suppliers, do not warrant that the operation of the Site, the SaaS Service, Ancillary Software, and Services will meet Customer’s requirements or will be uninterrupted or error free. Skillibrium makes no warranties regarding, and is not responsible for, any third party’s products or services, including any Third Party Components, whatsoever.

XV. LIMITATION OF LIABILITY

  1. In no event shall Skillibrium be liable to Customer with the respect to the Site, the SaaS Service, Ancillary Software, and Services for any amount in the aggregate in excess of the fees Customer has actually paid to Skillibrium during the twelve (12)-month period immediately preceding the event giving rise to the liability.  In no event shall Skillibrium be liable for any lost profits, loss or damaged User Content, or data, or failure to meet any duty including without limitation good faith and reasonable care, or any indirect, incidental, punitive, special, exemplary, or consequential damages of any kind whatsoever. 
  2. Customer agrees that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Skillibrium and Customer and that Skillibrium would not provide its content, the Site, the SaaS Service, Ancillary Software, and Services to Customer without such limitations.

XVI. DISPUTE RESOLUTION BY BINDING ARBITRATION

  1. Agreement to Arbitrate.  This Section XVI titled “DISPUTE RESOLUTION BY BINDING ARBITRATION” is referred to in this Agreement as the “Arbitration Agreement.” Customer agrees that any and all disputes or claims that have arisen or may arise between Customer (including all Authorized Users) and Skillibrium, whether arising out of or relating to this Agreement (including any alleged breach thereof), or the provision or use of the Site, the SaaS Service, Ancillary Software, and Services, and/or any advertising or any aspect of the relationship or transactions between Customer (including all Authorized Users) and Skillibrium, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Customer may assert individual claims in small claims court in the State of Delaware, if Customer’s claims qualify.  Further, this Arbitration Agreement does not preclude Customer from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against Skillibrium on Customer’s behalf.  Customer agrees that, by entering into this Agreement, Customer and Skillibrium are each waiving the right to a trial by jury or to participate in a class action. Customer’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
  2. Prohibition of Class and Representative Actions and Non-Individualized Relief. Customer and Skillibrium agree that each Party may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding.  Unless both Customer and Skillibrium agree otherwise, the arbitrator may not consolidate or join more than one person or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claims.
  3. Pre-Arbitration Dispute Resolution.  Skillibrium is always interested in resolving disputes amicably and efficiently, and most Customer concerns may likely be resolved quickly and to Customer’s satisfaction by notifying Skillibrium via email. 
  4. Arbitration Procedures.  

(i) Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

(ii) Unless Skillibrium and Customer agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

5.Confidentiality.  All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

6. Severability.  Without limiting the severability provision in Section XVII (MISCELLANEOUS) of this Agreement, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause (2) of this Arbitration Agreement is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of clause (2) of this Arbitration Agreement is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this Agreement will continue to apply.

7. Future Changes to Arbitration Agreement.  Notwithstanding any provision in the Agreement to the contrary, Skillibrium agrees that if it makes any future change to this Arbitration Agreement (other than a change to the notice address) while Customer is a user of the SaaS Service, Ancillary Software and/or Services, Customer may reject any such change by sending Skillibrium written notice within thirty (30) calendar days of the change to the notice address. By rejecting any future change, Customer is agreeing that Customer will arbitrate any dispute in accordance with the language of this Arbitration Agreement.

XVII. MISCELLANEOUS

  1. Customer and Skillibrium agree that this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflict of laws principles of such jurisdiction.
  2. Customer may not assign or otherwise transfer this Agreement or any of Customer’s rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Skillibrium. Skillibrium may freely assign this Agreement, including, without limitation, in connection with a merger, acquisition, bankruptcy, reorganization, or sale of some or all of its assets or stock.
  3. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the parties underlying the invalid, illegal or unenforceable provision(s).
  4. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
  5. If Skillibrium is unable to perform any obligation under this Agreement because of any matter beyond its reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving employees of Skillibrium), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond Skillibrium’s reasonable control (each, a “Force Majeure Event”), Skillibrium will have no liability to Customer for such failure to perform; provided, however, that Skillibrium shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event. If any Force Majeure Event continues for more than sixty (60) days, either Skillibrium or Customer may terminate this Agreement by delivery of written notice to the other party. Customer will remain responsible for all Fees incurred through the last day the SaaS Service and/or Services were available for use by all customers.
  6. All notices, consents, waivers, agreements or other communications hereunder shall be deemed effective or to have been duly given and made only if in writing and (i) upon receipt if served by personal delivery upon the Party for whom it is intended, (ii) upon delivery if sent by overnight air courier or (iii) upon receipt when sent by email, in each case, to such Party at the address set forth for Customer on the Order Form or for Skillibrium, the address provided below, or such other address as may be designated in writing hereafter, in the same manner, by the Party.

Address for notices to Skillibrium:

Skillibrium, Inc.

2607 Forrest Way NE

Atlanta, Georgia 30305

Attn: Bart Fanelli, President

With a copy via email to:

[email protected]

7. This Agreement constitutes the entire agreement between Skillibrium and Customer with respect to its subject matter, and supersedes all prior communications and proposals, whether electronic, oral or written, between Skillibrium and Customer.

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