Terms of Service

1. Definitions

• Affiliate(s): in relation to a company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company except that in respect of Customer, an “Affiliate” will not include any Skillcast Competitor.
• Agreement: these Terms of Service, the Data Processing Addendum, Service Level Commitment and any applicable Service Specific Terms, as well as the applicable Order Form between Skillcast and Customer for the provision of the Service (and all annexes or schedules to the aforementioned documents).
• Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
• Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.1.
• Contract Year: means each successive 12-month period (or portion thereof) during the Term.
• Customer: the person or entity identified as “Customer” on the Order Form.
• Customer Data: the data and documents inputted, submitted, provided, uploaded, transmitted, imported, displayed or otherwise made available by (or on behalf of) the Customer through the Service.
• Data Processing Addendum or DPA: means the Data Processing Addendum available at Data Processing Addendum, which sets out additional terms with regard to the processing of personal data in order to meet the requirements of Data Protection Legislation (as defined in the Data Processing Addendum).
• EU/UK Data Protection Law:
1. Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (the "EU GDPR");
2. the EU GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom's European Union (Withdrawal) Act 2018 (the "UK GDPR");
3. the EU e-Privacy Directive (Directive 2002/58/EC); and
4. any and all applicable national data protection laws made under, pursuant to or that apply in conjunction with any of (a), (b) or (c).
• Fees: as set out in the Order Form, including any additional fees which may be due as a result of exceeding any limits detailed in the Subscription Plan (for example, having more Active Users than authorised Users as described in the Service Specific Terms).
• Force Majeure Event: means any circumstance not within a party's reasonable control, including, without limitation: strikes, lock-outs or other industrial disputes (whether involving the workforce of Skillcast or any other party), failure of a utility service or transport or telecommunications network, an act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction (including imposing an export or import restriction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic or epidemic, terrorist attack, civil war, civil commotion or riots.
• Initial Term: unless otherwise detailed in an Order Form, an initial fixed period of 12 months commencing on the License Start Date.
• Intellectual Property Rights: all patents, copyrights, design rights, trademarks, service marks, Confidential Information, database rights and other rights in the nature of intellectual property rights (whether registered or not) and all applications for the same which may now, or in the future, subsist anywhere in the world, including the right to sue for and recover damages for past infringements.
• License Start Date: means the date identified as the License Start Date on the Order Form, or if no such date is included, then the date Skillcast first makes the Service available to Customer.
• Minimum Specification: the specification the Customer's systems are required to meet to use the Service, as revised from time to time and identified in the Service Level Commitment.
• Order Form: an ordering document issued by Skillcast which references these Terms of Service and specifies the Service, associated Fees, and other agreed upon terms and which has been either:
1. executed (including electronically) by the Customer; or
2. not executed by the Customer but which the Customer has accepted as demonstrated by the Customer subsequently downloading, accessing or using the Service detailed therein.
• Plan Level: the level of the Service included in the Subscription Plan, which defines the specific set of features, usage limits, and pricing. Skillcast currently offers three Plan Levels: Basic, Standard and Premium.
• Product Documentation: the documentation made available to the Customer by Skillcast online via our Support Site (or such other web address notified by Skillcast to the Customer from time to time), which sets out a description of the features and functionality of the Service (including user instructions) each as updated from time to time, on condition that such updates do not materially decrease the features or functionality of the Service. Product Documentation excludes the Service Level Commitment.
• Renewal Term: unless otherwise detailed in an Order Form, successive rolling periods of 12 months following the Initial Term or previous Renewal Term (as applicable).
• Representatives: in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
• Service: the ability to access and use the Skillcast application(s) and online courses (including the content and features contained therein), which are made available as software-as-a-service or cloud service by subscription as described in the Order Form. The Service includes the Support Services and Product Documentation.
• Service Level Commitment: Skillcast's Service Level Commitment is made available to the Customer online via the Service Level Commitment (or such other website address notified by Skillcast to the Customer from time to time), which describes the Support Services and applicable service levels as updated from time to time, on condition that such updates do not materially diminish the Support Services including any service levels.
• Service Specific Terms: the terms made available to the Customer online via Service Specific Terms (or such other website address notified by Skillcast to the Customer from time to time) which contain additional Service-specific terms and conditions as updated from time to time, on condition that such updates do not, during the Initial Term or any Renewal Term, materially diminish the applicable Service.
• Skillcast: the Skillcast entity identified on the Order Form.
  Skillcast Competitor: any business or person which develops and/or sells and/or licenses software, products and/or services which are the same as, or similar to, or are an alternative to, those provided by Skillcast.
• Subscription Plan: the detail of the Service that Skillcast will provide to the Customer, including the Subscription Term, the number of Users, the Plan Level and the associated Fees.
• Term: means the Initial Term together with any Renewal Terms.
• Support Services: standard customer support services provided in accordance with the Service Level Commitment and any relevant Service Specific Terms.
• Terms of Service: means the document entitled Skillcast Terms of Service.
• User(s): the Customer's (or the Customer’s Affiliates’) employees, contractors, consultants, agents or representatives who are authorised by the Customer to access and/or use the Service and have unique user identifications and passwords for the Service.

2. Onboarding & Support

1. 2.1. Skillcast will provide the Customer with the information needed to access and use the Service. If the Customer has selected a Standard Plan or a Premium Plan, Skillcast will contact the Customer to set up and customise the Service included in the Subscription Plan.
2. 2.2. Please refer to the Product Documentation for information and assistance with onboarding and accessing the Service. Further support provided as part of the Service will depend on the level of the Customer’s Subscription Plan as detailed in the Order Form. Any support requests by the Customer, which are outside the scope of the Customer’s Subscription Plan, may be chargeable at Skillcast’s then current rates.
3. 2.3. It is the Customer's responsibility to understand the Service and the Customer's use of the same. The Customer acknowledges and agrees that whilst the Service is designed for ease of use, the Customer is responsible for ensuring that any individuals involved in accessing and using the Service are appropriately trained and familiar with them.
4. 2.4. If the Customer does not promptly provide Skillcast with the information Skillcast requests at each stage of the onboarding and the set-up process, or if the Customer returns information which is inaccurate or incomplete, or otherwise fails to comply with the Minimum Requirements, Skillcast will not be liable for the Customer's inability to make use of the Service in whole or part.
5. 2.5. Portions of the Service may be provided by subcontractors of Skillcast, including third party hosting providers. The Customer consents to Skillcast making the Customer Data and/or the Customer Materials available to its subcontractors for the purpose of providing the Service subject to Skillcast binding them to obligations of confidentiality and (where applicable) data protection obligations that are substantially similar to Skillcast's obligations under this Agreement (including the DPA). Skillcast will remain responsible for any breaches of this Agreement by any of its subcontractors.
6. 2.6. Skillcast shall provide:
1. error correction, patches, fixes and updates to the Service as generally made available to its customers; and
2. Support Services in accordance with the Customer’s purchased Plan Level and Service Level Commitment. Where requested, the Customer may be required to update the Customer's IT infrastructure to continue to comply with any required Minimum Specification. For the avoidance of doubt, the cost of the updates described in this Clause is included in the Fees for the Service but excludes any third-party costs incurred by the Customer to ensure compatibility with the Service. Skillcast shall have no liability whatsoever for any failure or delay in the Service (including breach of the Service Level Commitment) which are caused (in whole or in part) by the Customer IT infrastructure failing to meet the Minimum Specification.
7. 2.7. Skillcast offers certain services and functionality within the Service using third-party developer tools such as application programming interfaces ("APIs") (the "Integration Services"). These third-party API terms and conditions contain restrictions on access, storage and use of information. Skillcast has no control over the content of third-party sites or resources that Skillcast links to through the use of APIs and, to the maximum extent permitted by applicable law, accepts no liability or responsibility for them, the Customer's use or inability to use Integration Services, or their contents, their accuracy or reliability or for any loss or damage (direct, indirect, special, consequential or otherwise) whatsoever that may arise from the Customer's use of any of them or the results obtained. The Customer's use of the Integration Services is on an "as is" basis and without any warranty of any kind.

3. Licence to Use the Service

1. 3.1. Subject to the terms and conditions contained in the Agreement, Skillcast hereby grants and the Customer accepts, with effect from the License Start Date and for the duration of the Term, a limited, non-exclusive and (subject to clause 3.6) non-transferable licence to access the Service (including the content and features contained therein) by the number of Users specified in the Subscription Plan solely for the Customer’s internal business purposes. Anything not detailed in the Customer’s Subscription Plan, Service Specific Terms, and/or Order Form are out of scope and subject to additional charges, at Skillcast’s then current rates, if requested.
2. 3.2. The Service the Customer receives will be limited to those detailed in the Subscription Plan; in respect to the specific Plan Level, the Service and number of Users the Customer has subscribed to; and, as further described in any Service Specific Terms. The Customer confirms it has read and understood any and all limitations in the specific Subscription Plan and/or Service Specific Terms. Any Service that is not detailed in the Subscription Plan, relevant Service Specific Terms, or Order Form are out of scope and subject to additional charges if requested.
3. 3.3. If the Customer's use of the Service in any Contract Year exceeds any limits detailed in its Subscription Plan, Skillcast shall be entitled to immediately invoice for additional Fees to account for such additional use of the Service in respect of that Contract Year. Unless otherwise agreed in writing, at the start of the next Contract Year, the Service will revert to the limits agreed in the Subscription Plan. If at any time it becomes apparent to Skillcast that the Customer has underpaid Fees for the Service, all Fees applicable to the Customer's actual historical use of the Service will be immediately payable to cover any shortfall. Skillcast may audit the Customer's use of the Service at any time to ensure compliance with this Agreement.
4. 3.4. Any User assigned with access to the Service may be replaced by another User during the applicable Contract Year only if that User has not accessed the Service during that Contract Year.
5. 3.5. For the avoidance of doubt, the Customer shall not be entitled to reduce the Subscription Plan at any time during the Term.
6. 3.6. The Customer may permit its Affiliates to use and access the Service solely for the internal business purposes of the Customer and/or the Customer’s Affiliates provided that:
1. The Customer remains responsible for the acts and omissions of its Affiliates as if they were acts and omissions of the Customer; and
2. such Customer Affiliates usage will count towards the number of Users. For the avoidance of doubt, when a corporation, company or entity ceases to be a Customer Affiliate all rights of that corporation, company or entity to use and access the Service immediately ceases.
7. 3.7. the Customer shall (and shall ensure its users shall):
1. use the Service only in accordance with this Agreement;
2. keep all passwords for use of the Service confidential and secure;
3. comply with all applicable laws and regulations with respect to its usage of the Service;
4. carry out all other Customer responsibilities set out in this Agreement, in a timely and efficient manner;
5. ensure that its network and systems comply with the relevant specifications provided by Skillcast from time to time (including the Minimum Specification); and
6. be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Skillcast’s (or its third-party hosting provider's) data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
8. 3.8. the Customer is responsible for the breach of this Agreement by any User. To the extent permissible by law, Skillcast will not be liable for any loss that the Customer, a User or any third party may incur as a result of any use or misuse of any username or password or any part of the Service, whether with or without the Customer's knowledge.
9. 3.9. the Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event the Customer becomes aware of any such unauthorised access or use, promptly notify Skillcast.

4. Acceptable Use

1. 4.1. The Customer shall not upload, publish, access, store, distribute or transmit any material during the course of its use of the Service that:
1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2. facilitates illegal activity;
3. depicts sexually explicit images;
4. promotes unlawful violence;
5. discriminatory; or
6. is otherwise illegal or causes damage or injury to any person or property, and Skillcast reserves the right, without liability or prejudice to its other rights, to disable the Customer's access to the Service if Skillcast reasonably believes that the Customer is in breach of this Clause.
2. 4.2. The Customer shall not except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service in any form or media or by any means; or
2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service; or
3. access all or any part of the Service in order to build a product or service which competes with the Service; or
4. use the Service to provide services to third parties; or
5. subject to clause 15.9, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party except its authorised users, or
6. attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under Clause 3;
7. introduce or permit the introduction of, any Virus or Vulnerability into Skillcast's (or its subcontractors) network and information systems;
8. remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, or other intellectual property rights notices from the Service; or
9. misrepresent, or in any other way falsely identify, the Customer's identity or affiliation.
3. 4.3. Except as otherwise agreed in the relevant Order Form, the Customer will not use the Service in any manner that is intended to avoid incurring the additional fees due to Skillcast. The Customer shall not create multiple Users to simulate or act as a single User. User accounts cannot be shared or used by more than one User, except that User accounts may be reassigned to new Users replacing former Users, provided that former User never accessed the Service during the applicable Contract Year. The Customer is responsible for all activity occurring under it and its Users accounts and logins.

5. Service Levels

1. 5.1. Skillcast will provide the Service in accordance with the Service Level Commitment.
2. 5.2. If Skillcast fails to provide the Service in accordance with the availability service level set out in the Service Level Commitment (an “Incident”) during any calendar month, the Customer is entitled to a credit as per the amounts set out in the Service Level Commitment (the “Service Credit”). The Customer must, within 30 days of the end of the month in which the Incident occurred, provide a written request to Skillcast explaining the Incident and setting out the amount of any Service Credit claimed (“Service Credit Notice”). Skillcast will verify the Incident reported in the Service Credit Notice and calculate the Service Credits due to the Customer within 30 days from receipt of the applicable Service Credit Notice.
3. 5.3. All calculations and applicable Service Credits shall be based on Skillcast’s records and data.
4. 5.4. Skillcast will apply Service Credits against the Customer’s current or future invoices and the Service Credits will be generated within 30 days of receipt of the verified Service Credit Notice. In the event there are no current invoices and no future invoices are reasonably anticipated, the Service Credit will be issued as a cash refund.
5. 5.5. Service Credits are the Customer’s sole and exclusive remedy for Skillcast’s failure to provide the Service in accordance with the availability service level set out in the Service Level Commitment.

6. Warranties & Disclaimers

1. 6.1. Skillcast warrants that:
1. it will exercise due skill, care and diligence in the execution of this Agreement;
2. it has obtained all third-party consents, permissions and licences necessary to enable it to execute this Agreement;
3. the use or possession by the Customer of the Service shall not subject the Customer to any claim for infringement of any Intellectual Property Rights of any third party; and
4. it will use its best endeavours to ensure that the Service is free from harmful components and do not introduce to the Customer’s systems any computer virus, Trojan horse or similar destructive, disruptive or nuisance programme.
2. 6.2. The Service is provided ‘as is’ and Skillcast makes no representation, warranty or guarantee as to the suitability of the Service for meeting the Customer's legal or regulatory obligations or the Customer's expectations. The Customer bears the sole responsibility to check the Service and make any modifications to any online courses required to ensure that the Service is fit for the Customer's particular purpose. Any modifications to any online courses carried out by Skillcast shall be subject to separate terms and conditions.
3. 6.3. Save as otherwise expressly set out herein, to the maximum extent permitted by applicable law, Skillcast makes no representations, warranties or conditions, whether express, implied, statutory or otherwise, including, without limitation, warranties or conditions of merchantability, fitness for a particular purpose, no encumbrances, no liens and non-infringement of third-party rights.
4. 6.4. The Customer warrants that it will:
1. direct its Users to address their questions to the Customer's Users' administrators or the Customer help desk, who will use their best endeavours to resolve Users' queries, and, if unable to do so, will direct them to Skillcast in accordance with the Service Level Commitment; and
2. not permit its Users or administrators to upload to the Service any material that is obscene, blasphemous or defamatory, violates any third-party Intellectual Property Right, duty of confidence or right to privacy, or the Official Secrets Acts, or is otherwise unlawful.

7. Charges & Payment

1. 7.1. The Customer shall provide Skillcast with relevant valid, up-to-date and complete contact and billing details and payment method to process any payments along with the Order Form.
2. 7.2. By submitting credit or debit card payment information, the Customer automatically authorises Skillcast (without any further reference to the Customer) to charge to such payment instrument all Fees immediately as they are incurred through the Customer's use of the Service for the duration of the Term.
3. 7.3. At the start of each Renewal Term, the Fees payable may be amended in accordance with Clause 14.2.
4. 7.4. Skillcast shall invoice the Fees annually in advance and in accordance with the relevant Order Form.
5. 7.5. Where payments are not made by credit or debit card (which will be charged in accordance with clause 7.2), the Customer shall pay each invoice submitted to it by Skillcast within 30 days of the date of invoice in full and cleared funds to a bank account nominated in writing by Skillcast from time to time.
6. 7.6. If Skillcast has not received payment of any sum due under this Agreement within 30 days after the due date, and without prejudice to any other rights and remedies of Skillcast:
1. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment;
2. the Customer shall reimburse Skillcast for all reasonable costs incurred by Skillcast in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and
3. Skillcast may, if such failure continues for 5 Business Days following written notice thereof, suspend part or all of the Service until payment has been made in full.
7. 7.7. Unless otherwise agreed in the Order Form, all sums payable to Skillcast under this Agreement:
1. are exclusive of VAT, goods and service tax, sales tax or other consumption or similar taxes (“Indirect Taxes”). Skillcast may charge Indirect Taxes in addition to the Fees under the applicable Order Form, on condition that Skillcast’s invoice meets the requirements of a valid tax invoice for such Indirect Taxes after consideration of any applicable tax exemption certificate. The Customer is not responsible for any taxes based on Skillcast’s net income. If, at any time, the Customer claims that its purchase of a Service hereunder is exempt from any taxes, it shall be the Customer’s responsibility to provide Skillcast with the appropriate tax exemption certificate(s). In the absence of valid proof of exemption, Skillcast reserves the right to charge the Customer for, and the Customer agrees to pay, the applicable taxes;
2. are, unless otherwise expressly agreed in this Agreement, non-cancellable and non-refundable; and
3. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. Intellectual Property Rights

1. 8.1. Any and all of the Intellectual Property Rights, title and interest contained in the Service and any other documentation, specifications, manuals, source code and other ancillary matter in connection or subsisting with or in the Service are the exclusive property of Skillcast. The limited, non-exclusive and non-transferable license granted to the Customer by virtue of this Agreement shall not convey to the Customer any rights of ownership in or related to the Service. Skillcast alone shall own all rights, title and interest, including all related Intellectual Property Rights, in and to the Service including any modifications, derivative works, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Customer or any other party in respect of the Service.
2. 8.2. Nothing contained in clause 8.1 is intended or shall be construed as giving Skillcast any rights over e-learning modules developed by the Customer, or procured by the Customer from third parties. Ownership of Intellectual Property Rights in any e-learning modules developed by Skillcast on behalf of the Customer shall be governed by the separate professional service terms and conditions.
3. 8.3. Nothing in this Agreement conveys any rights of ownership to Skillcast in any Intellectual Property Rights of the Customer. Any Intellectual Property Rights of the Customer shall only be used by Skillcast for the purposes of providing the Services under this Agreement. The Customer grants Skillcast a non-exclusive license to create metadata in relation to the Customer Data or the Customer’s usage of the Service provided that such metadata is anonymised (“Metadata”). Examples of Metadata include amount of uptime for the Service monthly/annually, number or type of system incidents encountered, trends in usage or popularity of certain features and functionality. For the avoidance of doubt, Skillcast shall own all right, title and interest in such Metadata.
4. 8.4. Both parties retain all rights to their respective names, logos, and trademarks provided for the purpose of executing this Agreement.

9. Confidentiality

1. 9.1. Confidential Information means all confidential information (however recorded or preserved) disclosed in connection with this Agreement by a party or its Representatives to the other party and that party's Representatives on or after the date of this Agreement, including:
1. the terms of this Agreement;
2. any information that would be regarded as confidential by a reasonable business person relating to
1. the business, assets, affairs, customers, clients, suppliers, of the disclosing party (or any Affiliate of the disclosing party); and
2. the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or any Affiliate of the disclosing party);
3. any information developed by the parties in the course of carrying out this Agreement, and the parties agree that details of the Service, and the results of any performance, security, penetration, vulnerability or other logical, analytical, data or information gathering tests carried out on the Service, shall constitute Skillcast’s Confidential Information.
2. 9.2. The provisions of this Clause shall not apply to any Confidential Information that:
1. is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this Clause);
2. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
3. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
4. the parties agree in writing is not confidential or may be disclosed; or
5. is developed by or for the receiving party independently of the information disclosed by the disclosing party.
3. 9.3. Each party shall keep the other party's Confidential Information secret and confidential and shall not:
1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement; or
2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause 9.
4. 9.4. A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information, provided that:
1. it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
2. at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this Clause 9.
5. 9.5. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 9.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
6. 9.6. On termination of this Agreement, each party shall:
1. destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;
2. erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
3. upon request, certify in writing to the other party that it has complied with the requirements of this Clause.
7. 9.7. No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party, except as required by law, any governmental or regulatory authority, any court or other authority of competent jurisdiction.
8. 9.8. Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
9. 9.9. The above provisions of this clause 9 shall continue to apply after termination of this Agreement.

10. Data Protection

1. 10.1. Both parties shall comply with EU/UK Data Protection Law.
2. 10.2. If Skillcast processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the parties record their intention that Customer shall be the data controller and Skillcast shall be a data processor, and that the Data Processing Addendum shall apply.

11. Indemnity

1. 11.1. Subject to the procedure set out in Clause 11.3, the Customer shall defend, indemnify and hold harmless Skillcast and its subcontractors against any claim made against it by an unaffiliated third party or any legal action made against it in each case which arises out of or in connection with:
1. The Customer’s breach of Clause 4; or
2. Customer Data and/or Customer Materials when used in accordance with this Agreement, directly infringes a third party’s Intellectual Property Rights.
2. 11.2. Subject to the procedure set out in Clause 11.3, Skillcast shall defend, indemnify and hold harmless the Customer against any claim made against it by an unaffiliated third-party that the Service when used in accordance with this Agreement, directly infringes a third party’s Intellectual Property Rights.
3. 11.3. Promptly after a party obtains knowledge of the existence or commencement of a claim or legal action for which it is entitled to be indemnified under Clause 11.1 or 11.2 (the “Indemnified Party”); the Indemnified Party will notify the other party (the “Indemnifying Party”) of such claim or legal action in writing, provided, however, that any failure to give such notice promptly will not waive any rights of the Indemnified Party except to the extent that the rights of the Indemnifying Party are actually prejudiced or liability increased thereby. The Indemnifying Party will have exclusive control of the defence and settlement of such claim or legal action; provided, however, that the Indemnified Party may join in the defence and settlement of such claim or legal action and employ counsel at its own expense and will reasonably cooperate with the Indemnifying Party in the defence and settlement of such claim or legal action. The Indemnifying Party may settle any claim or legal action without the Indemnified Party’s written consent unless such settlement:
1. does not include a release of all covered claims pending against the Indemnified Party;
2. contains an admission of liability or wrongdoing by the Indemnified Party; or
3. imposes any obligations upon the Indemnified Party other than an obligation to cease using any infringing items.
4. 11.4. In the event that Skillcast, in its sole discretion, reasonably determines, that the Service (or any portion thereof) infringes, or may infringe, any third party Intellectual Property Rights, Skillcast may procure the right for the Customer to continue using the Service, replace or modify the Service so that they become non-infringing or, if such remedies are not reasonably available, terminate the applicable Service in whole or in part and give the Customer a refund for any unused, prepaid Fees for the infringing Service covering the remainder of the Term.
5. 11.5. In no event shall Skillcast, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
1. a modification of the Service by anyone other than Skillcast; or
2. the Customer's use of the Service in a manner contrary to the instructions given to the Customer by Skillcast;
3. the combination of the Service, or any portion thereof, with any other third-party software, hardware, service, technology, content or material not provided by Skillcast if infringement would not occur without the combination, unless contemplated by this Agreement or the Documentation expressly authorizes a combination with that other third party software, hardware, services, technology, content or material;
4. the Customer’s use of other than the then most current version of the Service, on condition that the then-most current version was made available to the Customer, to the extent such infringement would have been prevented by the Customer’s use of the then-most current version;
5. the Customer's use of the Service after notice of the alleged or actual infringement from Skillcast or any appropriate authority; or
6. any Service that Skillcast makes available for trial, testing or demonstration purposes or for which Skillcast does not receive a Fee.
6. 11.6. The foregoing states that the Customer's sole and exclusive rights and remedies, and Skillcast's (including Skillcast's employees', agents' and sub-contractors') entire obligations and (subject to clause 12.3) liability, for infringement of any third-party Intellectual Property Rights.

12. Limitation of Liability

1. 12.1. Notwithstanding any other provision herein, neither party excludes or limits its liability for death or personal injury caused by its negligence, or for fraud, or breach of Intellectual Property Rights, or (in respect of the Customer) failure to comply with its payment obligations, or in respect of any other liability that by law cannot be excluded or restricted.
2. 12.2. Subject to clauses 12.1 and 12.5 and excluding liability arising under those indemnities which are covered by the caps in clauses 12.3 and 12.4 below, each party's total aggregate liability to the other party in respect of all losses, liabilities or damages suffered or incurred by the other party under, or in connection with, this Agreement (and whether the liability arises because of a breach of contract, negligence or for any other reason) shall not exceed an amount equal to the Fees paid or payable in the Contract Year in which the claim (or a series of connected claims) arose.
3. 12.3. Subject to clauses 12.1 and 12.5, Skillcast’s total aggregate liability to the Customer under the indemnities granted in clause 11 and the DPA shall not exceed 1 million GBP.
4. 12.4. Subject to clauses 12.1 and 12.5, the Customer’s total aggregate liability to Skillcast under the indemnities granted in clause 11 shall not exceed an amount equal to 300% of the Fees paid or payable in the Contract Year in which the claim (or a series of connected claims) arose.
5. 12.5. Subject to clause 12.1, under no circumstances will either party be liable to the other party for lost profits, data, business, revenue, goodwill or anticipated savings, or regulatory or legal fines, or any indirect, incidental, special, punitive, exemplary or consequential damages or losses of any kind, howsoever caused.

13. Suspension of Service

1. 13.1. Skillcast may suspend the Service (in whole or in part) without liability if:
1. Skillcast reasonably believes that the Service being used in breach of this Agreement and the Customer does not remedy the failure within fourteen days of Skillcast's written notice to the Customer describing the breach;
2. there is an attack on the Service, or the Service is accessed by or manipulated by a third party without Skillcast's consent;
3. Skillcast is required by law to suspend the Service or the Customer's access to the Service; or
4. there is imminent and significant operational risk and suspension of the Service is necessary to protect Skillcast or any other party's network, system, the Service or other customers.
2. 13.2. Skillcast will use reasonable endeavours to give the Customer advance notice of a suspension under this Clause 13 unless Skillcast determines in its reasonable commercial judgement that an immediate suspension is necessary to protect Skillcast or its customers from imminent and significant operational or security risk.
3. 13.3. In the event that the Customer uses the service in a manner that breaches this Agreement, suspension of the Service under Clause 13.1 shall not suspend the Customer's obligation to pay any Fees.

14. Term & Termination

1. 14.1. This Agreement shall, unless otherwise terminated in accordance with its terms, or as otherwise detailed in an Order Form, continue through the Initial Term and thereafter, this Agreement shall be automatically renewed for successive rolling periods of 12 months (each a "Renewal Term"), unless either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term or Renewal Term (as applicable), in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Term.
2. 14.2. At the start of each Renewal Term the Fees payable may be increased over the Fees charged in the previous Contract Year (for like for like services). Skillcast will limit this increase to no more than 10% and shall serve a minimum of 60 days notice. The Customer may terminate this Agreement at the end of the then-current Initial Term or Renewal Term in accordance with clause 14.1. If the Customer does not serve notice of termination, the Agreement shall automatically renew, and the Fees shall, where applicable, be revised accordingly.
3. 14.3. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
1. the other party commits a material breach of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (“IA 1986”) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
3. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into, any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
4. the other party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;
5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
7. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
8. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.3(b) to (g) (inclusive);
4. 14.4. Without affecting any other rights that it may be entitled to, Skillcast may terminate this Agreement for breach if:
1. payment of any invoiced amount (except to the extent such invoice is disputed in good faith) or Fee payable is overdue and following notification to the Customer, the Customer does not pay the overdue amount within ten Business Days of a written notice from Skillcast;
2. the Customer breaches Clause 4.
5. 14.5. On termination of this Agreement for any reason:
1. all rights and licences granted under this Agreement shall immediately terminate;
2. Skillcast shall continue to provide the Customer with limited access to download any Customer Data for 30 days after the effective date of the termination of this Agreement after which Skillcast shall destroy or otherwise dispose of any Customer Data in its possession unless Skillcast receives, during the 30 days, a written request for an extension to the limited access, which Skillcast may grant solely at its discretion; and
3. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced.
6. 14.6. If this Agreement is terminated before the end of the Term, other than for material breach by Skillcast under Clause 14.3, all Fees payable up to the end of the Term and all other fees due and payable to Skillcast under this Agreement shall be immediately due and payable to Skillcast.
7. 14.7. Clauses concerning the parties’ rights and obligations that by the content of the section operate after termination or that are necessary to enforce any right will survive termination of this Agreement.

15. Multi-Tiered Service Provision

1. 15.1. The Customer's obligations under this Agreement are specifically designed to manage and safeguard Skillcast's multi-tiered service provision where applicable, encompassing rigorous identification, usage restrictions, and compliance mechanisms related to End Clients, as delineated in this clause 15.  For the purposes of this Agreement End Client refers to any third-party entity or individual that directly benefits from or uses the services provided by the Customer under the terms of this Agreement where such services involve the use of the Skillcast platform..
2. 15.2. The Customer agrees to use the Service solely for servicing end clients (“End Clients”) that are expressly identified in an addendum to this Agreement.
3. 15.3. Under no circumstances shall the Service be used to provide services to any entity that is a direct or indirect competitor of Skillcast.
4. 15.4.The Customer shall ensure that a legally binding contract is in place with each End Client ("End Client Contract") before providing any services using the Service. The End Client Contract must include provisions that are at least as protective of Skillcast's intellectual property and confidentiality obligations as those set forth in this Agreement. The Customer agrees to provide Skillcast with confirmation of such End Client Contracts upon request.
5. 15.5. Any breach of this section 15 will be considered a material breach of this Agreement. Skillcast reserves the right to terminate the Agreement immediately upon written notice if the Customer fails to comply with any aspect of this section. Additionally, Skillcast may seek any legal or equitable relief available for such breaches.
6. 15.6. The Customer shall ensure that the use of the Service by End Clients complies fully with the terms of this Agreement and any relevant Order Form. The Customer must communicate to all End Clients the appropriate usage policies and restrictions, including but not limited to those related to data security, confidentiality, and intellectual property rights, as stipulated in this Agreement and any Order Form.
7. 15.7. The Customer remains fully responsible and liable for all payment, acts and omissions of the End Clients related to the use of the Service. This responsibility extends to ensuring that End Clients do not breach the terms of use, do not infringe any intellectual property rights of Skillcast, and adhere to all limitations and restrictions as set forth in this Agreement and any Order Form.
8. 15.8. The Customer may permit End Clients to access and use the Service solely for the End Client's internal business purposes. The Customer shall ensure that such usage by End Clients adheres strictly to the purposes outlined and does not extend beyond the internal operations of the End Client. The Customer is prohibited from allowing End Clients to use the Service for the benefit of any third party, including but not limited to subcontracting or outsourcing services.
9. 15.9. The Customer must ensure that End Clients do not:
1. Use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party’s use and enjoyment of the Service.
2. Attempt to gain unauthorized access to the Service, or any part of it, other accounts, computer systems, or networks connected to the Service, through hacking, password mining, or any other means.
3. Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service.
10. 15.10. The Customer is responsible for all activities conducted under its and its End Clients' user accounts and for ensuring that all End Client usage of the Service complies with applicable laws and regulations. The Customer agrees to immediately notify Skillcast of any unauthorized use of the Service or any other breach of security known to the Customer. The Customer shall bear all risks associated with the use of the Service by End Clients and will be solely responsible for enforcing the terms of this Agreement with End Clients, including any breach by End Clients.
11. 15.11. For the avoidance of doubt, the Customer’s payment obligations as set out under this Agreement are absolute and unconditional and are not contingent upon the Customer receiving payment from any End Client or third party.
12. 15.12. The warranties set forth in this Agreement are granted exclusively for the benefit of the Customer and Skillcast. Skillcast does not grant any warranty or assume any liability towards any third parties, including but not limited to the End Client. These warranties do not extend beyond the Customer to any other person or entity, and no third party, including End Clients, may rely on these warranties. Skillcast expressly disclaims all warranties, whether express or implied, towards any third parties not party to this Agreement.
13. 15.13. The indemnities set forth in this Agreement are granted exclusively for the benefit of the Customer and Skillcast. Skillcast does not grant indemnity or assume any liability towards any third parties, including but not limited to the End Client. This indemnification is strictly limited to the Customer, and no third party, including End Clients, has any right to claim indemnity under this Agreement. The Customer agrees to indemnify and hold Skillcast harmless from any claims made by third parties, including End Clients, arising out of or related to this Agreement.
14. 15.14. Upon termination of this Agreement for any reason, the Customer agrees to immediately procure the termination of any existing End Client Contracts associated with the use of the SaaS platform. The Customer shall ensure that the platform will no longer be used by or for the benefit of any End Client. This requirement is binding on the Customer and must be fulfilled as a condition of the orderly termination of this Agreement.
15. 15.15. The Customer must notify all End Clients of the termination of their right to use the SaaS within seven days of the termination of this Agreement. The Customer shall also take all necessary steps to disable any access or usage of the SaaS platform by End Clients and confirm in writing to Skillcast that all such actions have been completed within ten days of the termination of this AgreementThe Customer must notify all End Clients of the termination of their right to use the SaaS within seven days of the termination of this Agreement. The Customer shall also take all necessary steps to disable any access or usage of the SaaS platform by End Clients and confirm in writing to Skillcast that all such actions have been completed within ten days of the termination of this Agreement.
16. 15.16. The Customer acknowledges and agrees that it will be held liable for any continued use of the SaaS platform by any End Client after the termination of this Agreement. The Customer agrees to indemnify and hold Skillcast harmless from any claims, losses, liabilities, damages, fines, or penalties arising out of failure to terminate the End Client Contracts or any continued use of the SaaS platform by End Clients beyond the termination of this Agreement.
17. 15.17. Notwithstanding, the provisions of this clause 15, where this Agreement confers rights or imposes obligations on the Customer, such rights and obligations shall also extend, as applicable and where reasonable, to the Customer’s End Clients. The Customer is responsible for ensuring that its End Clients adhere to the terms and conditions of this Agreement, particularly in relation to the authorized access and use of the Service, acceptable use, indemnification of Skillcast, confidentiality, safeguarding intellectual property rights, complying with data protection laws, and maintaining the integrity of unique user identifications and passwords. This extension is contingent upon the End Clients' compliance with the Acceptable Use Policy and other relevant provisions of this Agreement as set forth in the Order Form and subsequent amendments..
18. 15.18. Equitable Relief: Notwithstanding anything to the contrary in this Agreement:
1. A Data Protection Agreement with the End Client where the End Client is Controller and the Customer is Processor.
2. The Skillcast Processor to Sub-Processor Data Protection Agreement where the Customer is the Processor and Skillcast is the Sub-Processor.

16. General Provisions

1. 16.1. Force Majeure: Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the same if such delay or failure result from a Force Majeure Event. Skillcast shall notify the Customer of such an event and its expected duration as soon as possible. The time for performance of such obligations shall be extended accordingly.
2. 16.2. Conflict: In the event of any conflict or inconsistency between the documents that make up this Agreement, the documents will control and govern, to the extent necessary to resolve the conflict or inconsistency, in the following order: the Order Form, the Service Specific Terms (but only as applicable for the relevant Service which is subject to those terms), these Terms of Service and the Service Level Commitment. In the event of any conflict or inconsistency between the Data Processing Addendum and the other documents that make up this Agreement, the Data Processing Addendum prevails except where the other documents that make up this Agreement expressly states an intention to override a specific section of the Data Processing Addendum.
3. 16.3. Variation: Except as otherwise expressly permitted herein, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
4. 16.4. Waiver: A waiver of any right or remedy is only effective if given in writing. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
5. 16.5. Rights and Remedies: Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
6. 16.6. Severance: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under this Clause the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
7. 16.7. Entire Agreement: This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Nothing in this Clause shall limit or exclude any liability for fraud.
8. 16.8. Purchase Orders: Any inconsistent or additional terms of the Customer’s purchase order or similar document are excluded regardless of Skillcast accepting the purchase order or other Customer documents for payment purposes. In addition, nothing contained in any clickwrap agreement, other document or instrument issued by the Customer will in any way modify or add any additional terms or conditions to this Agreement, and any modified or additional terms or conditions are expressly rejected and excluded from this Agreement.
9. 16.9. Assignment: the Customer shall not, without the prior written consent of Skillcast, assign, transfer, or sub-contract its rights or obligations under this Agreement, except to a successor following a business reorganisation, merger or acquisition. Skillcast may, at any time, and without requiring the Customer's consent, assign, transfer, or sub-contract its rights or obligations under this Agreement to any Skillcast Affiliate or successor following a business reorganisation, sale of assets, merger or acquisition.
10. 16.10. No Partnership or Agency: Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name, or on behalf of, or otherwise to bind the other, in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
11. 16.11. Third Party Rights: This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
12. 16.12. Export: The parties shall comply with all applicable export and import control laws and regulations. The Customer shall not directly or indirectly, export, re-export, transfer, re-transfer, sell, supply, or permit access to, or use of, the Service to, in, by, or for sanctioned, embargoed, or prohibited countries, persons, or end uses under applicable export law (collectively, "Prohibited Uses"). Upon learning that any part of the Service was diverted contrary to the obligations in this Clause, the Customer will immediately notify Skillcast.
13. 16.13. Applicable Laws: Without limiting Clause 16.12, both parties shall comply with all applicable laws in connection with their performance under this Agreement (for the avoidance of doubt, the Customer is solely responsible for ensuring that the Customer's use of the Service complies with any legal or regulatory requirements and is not fraudulent. Each party will notify the other promptly of any breaches in relation to the Service, provided that the party is legally able to give such notice. The Customer represents and warrants that it is responsible for obtaining any applicable consents from Users in respect to the Service or the Users' use of them, as required by applicable law.
14. 16.14. Counterparts: This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement.
15. 16.15. Notices: Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post, or recorded delivery post, or by email to support@skillcast.com in the case of Skillcast and the email address of the contract signatory or any Customer administrator in the case of Customer. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of the post. A notice sent by email shall be deemed to have been received at 9 am on the first Business Day following delivery. Where Skillcast is required under this Agreement to give the Customer any notice in writing, Skillcast may give this notice by letter or email.
16. 16.16. Interpretation: Cross references to “Clauses” shall, unless otherwise stated, apply to clauses within these Terms of Service. Words importing the singular include the plural, words importing any gender include every gender and words importing persons include entities, corporate and otherwise; and (in each case) vice versa. The section headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement and shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision. Whenever the terms “including” or “include” are used in this Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on, or an exclusive enumeration of the items within such classification.
17. 16.17. Governing Law: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.
18. 16.18. Jurisdiction: Subject to Clause 16.19, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
19. 16.19. Equitable Relief: Notwithstanding anything to the contrary in this Agreement:
1. either Party may at any time seek equitable relief (without the necessity of posting a bond), including, without limitation, temporary injunctive relief, in any court of competent jurisdiction; and
2. Skillcast, at its option, may pursue any and all remedies available at law and in equity in any court of competent jurisdiction with respect to any claim against the Customer for non-payment under this Agreement.
20. 16.20. Trials: All trials or testing of our Services are subject to this Agreement and shall be for no more than 30 days. Access to the Services for trials may only be used for evaluation purposes. Unless agreed otherwise in writing, any data entered into the Services, and any customizations made to the Services, during any free trial may be deleted at the end of the trial.
21. 16.21. Disputes: If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it, either Party shall give to the other written notice of the dispute setting out its nature together with relevant supporting documents and both Parties shall attempt in good faith to resolve the dispute within 30 days. If the dispute is not resolved, the Parties agree to enter into mediation and no Party may commence any court or arbitration proceedings until it has attempted to settle the dispute by mediation.