In using the Site, including all Services and Materials available through it, you agree:
Not to disrupt or interfere with the security of, or otherwise cause harm to, the Site, or any Services, Materials, system resources, accounts, passwords, servers, or networks connected to or accessible through the Site or any affiliated or linked websites;
Not to upload, post or otherwise transmit through the Site any viruses or other harmful, disruptive or destructive files;
Not to create a false identity;
Not to use or attempt to use another's account, password, service, or system without express authorization from SforSkill;
Intentionally or unintentionally violate any applicable local, state, national or international law, or any regulations having the force of law.
SforSkill may, but is not obligated to, monitor or review (i) any areas of the Site where users transmit or post user content, including but not limited to areas where Services are available, and (ii) the substance of any user content.
To the maximum extent permitted by law, SforSkill will have no liability relating to user content arising under the laws of copyright, libel, privacy, obscenity, or otherwise.
Where the use of the Site or certain Services of the Site require user registration, you will be required to provide certain registration information (the "Registration Data").
In registering to use the Site, including all Services and Materials available through it, you agree to:
Provide accurate, complete and up to date information about yourself as required by the Sites registration form. Maintain and update your Registration Data to keep it accurate, complete and up to date.
You are responsible for maintaining the confidentiality of your account and for all activities carried out using your account information. You agree to notify SforSkill immediately of any unauthorized activity using your account information or if you suspect that the confidentiality of your account information has been compromised.
In using this Site and its Services, you expressly understand and agree that:
To the extent not prohibited by applicable law, SforSkill is not liable for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to, damages for loss of profits, revenue, goodwill, use, data, electronically transmitted orders or other economic advantage (even if SforSkill has been advised of the possibility of such damages), however caused and regardless of the theory of liability, whether in the contract (including fundamental breach), tort (including negligence) or otherwise, arising out of, or related to:
You have the sole responsibility for adequate protection and backup of data and/or equipment used in connection with the Site and will not make a claim against SforSkill for lost data, re-run time, inaccurate output, work delays or lost profits resulting from the use of content.
You agree to hold SforSkill harmless from, and you covenant not to take any legal action against SforSkill for any claims based on using the Site, whether in a contract (including fundamental breach), tort (including negligence) or otherwise except where SforSkill is prevented by law from making such exclusions or limitations.
The Services on this Site may provide links to other World Wide Web sites or resources. Because SforSkill has no control over such sites and resources, you acknowledge and agree that SforSkill is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that SforSkill shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such site or resource.
These terms apply to the purchase of SforSkill products and services as stated in a corresponding Order.
1 Definitions and Interpretation
In these terms, the following words have the following meanings:
“Agreement” means the agreement for SforSkill to supply Products and/or Services, incorporating these terms and the corresponding Order;
“Candidate” means any assessed individual (including a potential hire or an existing employee of the Company;);
“Company” means the party placing an Order using this Agreement as defined in an Order.
“Direct Customer” means a Company that is purchasing Products and/or Services to manage its own internal human resources, or an individual that is purchasing Products and/or Services for personal reasons
“Order” means a written or verbal order, which may be agreed in an electronic mail, consisting of a statement of work, change request form, price addendum or other order for Products and/or Services agreed between Company and SforSkill;
“Output” means any physical reports SforSkill produces and provides to Company (i) on Candidates or (ii) on a group of candidates or (iii) as a result of a consultancy project for Company.
“Product” means the product SforSkill agrees to supply Company in an Order;
“Service” means the service SforSkill agrees to supply Company in an Order, including online and consultancy services as further described in the Product and/or Services Schedule;
“SforSkill” means the local SforSkill entity supplying the Products and/or Services to Company
“SforSkill” means SforSkill, all SforSkill affiliated companies, subsidiaries and its parent company “Value Innovation Pvt. Ltd.”
“SforSkill Partner” means a Company or individual who purchases Products and/or Services from SforSkill 1) to enable the Company's clients to manage their internal human resources under a partnering agreement with SforSkill or 2) to use with third parties or resell solely as permitted by SforSkill
Headings are for ease of reference only. Any phrase with include, including, in particular, or any similar expression will be construed as illustrative and will not limit the sense of the words following those terms. Use of a term defined in the singular tense also includes plural uses of such defined term. A reference to “writing” or “written” includes faxes or electronic mail unless specifically excluded by the parties in an Order.
2.1 Entire Agreement
The Agreement sets out the entire agreement between the parties relating to its subject matter and, except with any mutual confidentiality agreements in effect between the parties, overrides any prior correspondence or representations and all other terms and conditions. The parties acknowledge that this Agreement has not been entered into wholly or partly in reliance on, nor has either party been given any warranty, statement, promise or representation by the other or on their behalf other than as expressly set out in this Agreement.
SforSkill reserves the right to change the pricing or offering for its generally available products and/or services. Orders are at all times subject to the pricing quoted by SforSkill in such Order in accordance with this Agreement.
2.3 Offer & Acceptance
When Company places an Order for Products and/or Services it is deemed an offer to purchase such Products and/or Services subject to these terms. The Order will be deemed accepted by SforSkill when: (i) SforSkill countersigns such Order or (ii) when SforSkill issues a written acknowledgement to Company, or (iii) upon delivery of the Products and/or Services to Company. Unless otherwise stated, a quotation SforSkill provides to Company for Products and/or Services is valid for a period of 30 days from the date of the proposed Order.
Each Order contains a description of the Products and/or Services to be purchased. Any other descriptions provided by SforSkill (including those contained in brochures) are solely for general information purposes and do not form part of the Agreement.
2.5 Delivery and Delivery Date
All Orders are deemed accepted upon delivery unless otherwise stated in the Order. Any delivery date stated in an Order is an estimate only unless otherwise expressly stated in a written Order.
2.6 Reasonable Assistance
Company or its agents will provide SforSkill reasonable assistance required to facilitate delivery of Products and/or Services to Company. SforSkill will have no liability to Company where failure or delay in the delivery of the Products and/or Services results from Company's act, omission or delay and/or those working on Company's behalf, in providing such assistance.
The price for Products and/or Services is stated in the Order. The price is exclusive of any value added, sales or other taxes which will be charged at the applicable rate at the time of invoice. SforSkill reserves the right to withdraw a discount if any fees owed under a completed Order are not paid by their due date.
Unless otherwise agreed in writing, payment for SforSkill Products and/or Services is due without deduction, demand or set off or withholding within 30 days after the date of the invoice. If Company is required to withhold tax on any amount payable to SforSkill under this Agreement, Company will deliver to SforSkill the original tax receipt or other proof of payment. Each party shall provide such reasonable support as necessary in connection with any exemption or reduction of, or the contestation of or the defence against, any taxes. In the event of late or non-payment, SforSkill may suspend the provision of Products and/or Services and/or charge Company default interest at a rate of 1.5% per month accruing on a daily basis from the due date for payment until the date on which payment is made and the costs in pursuing a debt recovery procedure.
If Company reasonably demonstrates that there is a defect in the materials or workmanship of Products and/or Services have not been performed with reasonable care and skill in accordance with good industry practice, then SforSkill will perform the following:
(a) repair or make good such defect at no charge to Company, or
(b) replace such Products and/or re-perform such Services, or
(c) issue a credit note to Company for the whole or part of the price of such Products and/or Services as appropriate.
This “Warranty” is subject to certain conditions as stated below.
The Warranty does not apply unless Company notifies SforSkill in writing of the alleged defect within 7 days of the time when Company discovers or ought to have discovered the defect and in any event within 6 months of the date of delivery of SforSkill's Products and/or 1 month of the date of SforSkill's performance of Services. The Warranty also does not apply:
(a) in respect of any defect arising from fair wear and tear, wilful damage, Company's negligence, abnormal working conditions, misuse or alteration of SforSkill Products without SforSkill approval; or
(b) if the total price for SforSkill's Products and/or Services has not been paid by the due date for payment
(c) if Company cannot provide SforSkill evidence of the claimed defect or problem such that SforSkill can reproduce the claimed defect.
4.3 Other Warranties
The express warranties set out in the Agreement are the only warranties given by SforSkill and are in lieu of all other warranties, conditions, undertakings, terms and obligations implied by statute, common law, trade usage, course of dealing or otherwise, all of which are hereby excluded, to the fullest extent permitted by governing law, from the Agreement.
5.1 Unlimited Liability
Nothing in these terms will exclude or limit either party's liability for (a) death or personal injury caused by its negligence or (b) for fraud or fraudulent misrepresentation.
5.2 Consequential and other losses
To the extent permitted by applicable law, neither party will be liable for any of the following losses or damage (whether or not such losses or damage were foreseen, direct, indirect foreseeable, known or otherwise): (a) loss of profits (whether actual or anticipated), (b) loss of revenue, (c) loss of anticipated savings, (d) loss of business, (e) loss of opportunity, (f) loss of goodwill, or (g) any indirect, special or consequential loss or damage howsoever caused. To the extent all or some portion of the exclusion or limitation of liability is not allowed by applicable law, the party's liability is limited to the greatest extent permitted by applicable law.
5.3 Maximum Liability
Subject to clauses 5.1, 5.2 and the Product and Services Schedule, SforSkill's total aggregate liability arising out of or in connection with the performance or contemplated performance of the Agreement (whether for tort (including negligence), breach of Agreement, breach of statutory duty or otherwise) will in no event exceed 120% of the price paid or payable by Company in the 12 month period immediately before the date of the event giving rise to Company's claim.
The Company acknowledges and agrees that: (i) SforSkill's Products and/or Services guide Company as to the suitability and aptitude of candidates as part of an overall recruitment or development process. The Output, represents SforSkill's professional opinions based on test results and the information provided must not be relied upon as statements of fact or as the sole basis for any employment related decisions; (ii) SforSkill does not recruit or select candidates and is not operating as a recruitment agency; and (iii) SforSkill is not responsible for the acts or omissions of the Company, including but not limited to (a) Company's selection of SforSkill tests without a specific written recommendation from SforSkill, and (b) Company's use of SforSkill tests interpretation of test results or resulting decisions the Company makes.
Either party may terminate the Agreement by written notice with immediate effect if the other party:
(a) becomes or is reasonably likely to become insolvent, enters into administration, bankruptcy or compromises any debts with creditors; or
(b) materially breaches the Agreement and fails to remedy such breach, where it is capable of remedy, or persists in any breach of any of its obligations under the Agreement after having been required in writing to remedy or desist from such breach within 30 days.
Either party may terminate the Agreement for any reason by providing the other party with at least 30 days prior written notice after the expiry of any agreed minimum term or any agreed subscription term.
Upon termination of the Agreement for any reason:
(a) the relationship between the parties and any licenses granted under the Agreement will cease;
(b) any provision which expressly or by implication is intended to come into or remain in force on or after the termination of the Agreement will continue in full force and effect;
(c) such termination will be without prejudice to any rights or remedies of either party which may have accrued up to the date of termination; and
(d) except in the event of SforSkill's breach, all sums owing pursuant to an Order will become due in accordance with its terms;
If Company terminates the Agreement for convenience, Company will pay SforSkill the cancellation charges specified in an Order or, under a statement of work, the fees based on the percentage of work completed by SforSkill up to the date of termination.
7.1 IP Ownership
The Company will at all times remain the owner of any property (including Intellectual Property) which Company provides to SforSkill. SforSkill, or its licensors, will at all times remain the sole owner of any pre-existing Intellectual Property in Products and/or Services as well as any Intellectual Property created by SforSkill or on its behalf in the course of SforSkill's performance of the Agreement. For the purpose of this Agreement, “Intellectual Property” includes any patent, copyright, design right, registered design, trademark, service mark, trade name, domain name, algorithms, user interface designs, benchmark data, architecture, know-how, database right, utility model, unregistered design or other industrial or intellectual property rights subsisting throughout the world, whether or not registered and all applications, renewals and extensions of the same.
7.2 Ownership of Printed Reports and Consultancy Deliverables
Upon full and final payment of SforSkill's fees, The Company will acquire ownership of any Output. The Company may download, make copies, distribute, modify and create derivative works of any Output under this Agreement; provided that all Intellectual Property rights in the Output remain the property of SforSkill Group or its licensors. SforSkill hereby grants Company a non-exclusive, non-transferrable perpetual license to use the Intellectual Property contained in the Output in accordance with this Agreement. Except as expressly stated above, this Agreement does not grant the Company any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses.
7.3 IP Indemnity
(a) Subject to clause 5.3, SforSkill will defend and indemnify Company from and against any third party claim that Products and/or Services infringe a third party's Intellectual Property, provided that Company:
(i) notifies SforSkill in writing promptly upon receiving notice of a claim, or upon reasonable suspicion of a claim being brought for infringement of any third party's Intellectual Property; and
(ii) co-operates with SforSkill's reasonable requests for the provision of information or other assistance relevant to the claim; and
(iii) agrees to SforSkill's sole control of any defence or settlement; and
(iv) does not engage in any public statements, discussions settlement negotiations or make an offer to settle, nor make any admission of guilt or fault, without the express prior consent of SforSkill.
(b) Subject to the terms of this section 7.3, SforSkill will either:
(i) obtain for Company the right to continue using Products and/or Services,
(ii) replace or modify the affected Product or Services so they become non-infringing, or refund to Company the amount(s) paid to SforSkill for such affected Product and/or Service; and
(c) Company warrants that Company will not, by itself or with any third party, do or omit to do any act that might in any way:
(i) devalue or otherwise detrimentally affect the Intellectual Property rights in the Products and/or Services;
(ii) adversely affect the reputation of the SforSkill Group;
(iii) cause confusion, deception or false associations with products and/or services that are not Products and/or Services (including recruitment or other services) whether by preparing reports that are identical with, or confusingly similar to, any reports prepared by SforSkill, or otherwise.
(d) SforSkill may seek immediate injunctive relief against Company for the breach of any of the provisions of this section 7.3.
(a) Company warrants that it will:
(i) administer the Products and/or any Services (including any related materials), in compliance with all relevant laws, procedures or guidelines applicable in the Territory (as stated in the Order, or if left blank then the Territory is the country where Company is registered) or otherwise; and
(ii) not copy, reproduce, modify or adapt, translate, disassemble or reverse engineer any of the Products and/or Services materials without express written consent from SforSkill, and
(iii) not create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of SforSkill Product and/or Services (as applicable) in any form or media or by any means, except as permitted under this Agreement.
(b) Test Usage: Company will ensure that it:
(i) It uses their results appropriately, professionally, and in an ethical manner, paying due regard to the needs of those involved in the testing process, the reasons for testing, and the broader context in which the testing takes place.
(ii) each test user has the necessary competencies to carry out the testing process and the knowledge and understanding of SforSkill's tests and proper test usage that inform and underpin this process.
(c) Where Company is a Direct Customer, SforSkill grants Company a non-transferable, non-exclusive license for the duration of this Agreement to use the Products and/or Services solely for Company's internal purposes (provided such internal use is not to directly or indirectly develop competing products and/or services) and only in the Territory.
(d) Where Company has entered into an agreement with SforSkill to be a SforSkill Partner, SforSkill grants Company a non-transferable, and non-exclusive right to utilize and incorporate or consume the Products and/or Services as an integral part of the service Company provides to its customers provided that Company's customers:
(i) are resident in the Territory, and
(ii) use the Products and/or Services only for their internal purposes (provided such internal use is not to directly or indirectly develop competing products and/or services).
Other than as stated in this clause 7.4(d), Company has no right to resell or resupply the Products and/or Services for any other purpose. Any breach of this clause will be considered a material breach incapable of remedy.
In this clause, the following terms are used:
“Data Controller” means a person/entity who determines the purposes for which and the manner in which any Personal Data are, or are to be, processed (collected, used, amended, retained, destroyed etc.);
“Data Processor” means a person/entity (other than an employee of the Data Controller) that processes Personal Data on behalf of the Data Controller;
“Personal Data” means data which relates to a living individual who can be identified from that data, (or from that data and other information which is in the possession of the Data Controller);
“Sensitive Personal Data” means Personal Data relating to the racial or ethnic origin of the data subject, political opinions, religious (or similar) beliefs, trade union membership, physical or mental health or condition, sexual life, the commission or alleged commission of any offence, or any proceedings for any offence committed or alleged to have been committed; and
“Third Party” any person or entity other than Company, Candidate, the Data Controller or the Data Processor or other person authorized to process data for the Data Controller or person, excluding the SforSkill Group.
Both parties will comply with all applicable laws and regulations in relation to the collection, processing, and storage of Personal Data relating to Candidates.
8.3 Data Collected
(a) SforSkill Online Service - Company provides SforSkill with Candidate Personal Data, including information to contact Candidates (“Candidate Data”). SforSkill will then contact the Candidate for the purpose of completing an assessment (“Assessment Data”). Personal Data, which is used to produce a report, is either input by the Candidate or provided by Company. Candidate or Company may provide optional information for the purposes of research (“Research Data”). The SforSkill product processes the answers provided by the Candidate and will generate results of the assessment (“Results Data”) and provide Company with an Output, which is the final scored report.
8.4 Data Transfer
(a) The Company agrees that SforSkill may transfer Personal Data outside India in order to provide Company with the Products and/or Services under this Agreement. This may include processing Candidate Data, Assessment Data and Results Data in countries in which data protection laws do not provide the same level of protection
In such cases, the SforSkill Group will take appropriate steps to ensure Company's information is adequately protected.
(b) SforSkill may disclose Personal Data to Third Parties (outside the SforSkill Group) in the following limited circumstances: (i) if SforSkill Group buys or sells any business assets, (ii) if SforSkill Group contracts with Third Parties to perform or provide certain services on behalf of a member of the SforSkill Group, or (iii) if SforSkill Group is under a duty to disclose or share Personal Data to comply with any legal obligation. SforSkill will contractually require any buyer of SforSkill assets that include Personal Data or any Third Party performing services on SforSkill's behalf to provide the same level of protection for Personal Data required in these terms and under any applicable data protection laws.
8.5 Data Processing
(a) The Company is the Data Controller of all Candidate Data, Assessment Data, and any Output. SforSkill acts as the Data Processor in respect of the Candidate Data, Assessment Data and in producing the Output. SforSkill will co-operate with any Company request for Personal Data provided by or through Company, provided that such requests, other than those required under law, may be subject to reasonable charges for such assistance.
(b) Where SforSkill acts as Company's Data Processor, SforSkill will:
(i) process Personal Data in accordance with Company's reasonable instructions or otherwise as may be required to provide the Product and/or Services under this Agreement, and to support Company in its use of the Products and/or Services; and
(ii) take appropriate steps to protect Personal Data, whether electronic or otherwise, including by implementing reasonable administrative, technical and physical security controls to protect Personal Data from unauthorized access, improper use or disclosure, unauthorized modification or unlawful destruction or accidental loss. SforSkill Group and any Third Party SforSkill engage to process Personal Data will be required to protect and process Personal Data in accordance with this Agreement and applicable data protection laws.
8.6 Research Data
(a) SforSkill collects Research Data in the form of optional demographic questions displayed at the beginning of a Candidate assessment, and in the form of further information on assessment objectives or Candidate success information provided by Company.
(b) SforSkill will be the Data Controller of all Research Data, which may include Personal Data and Sensitive Personal Data.
(c) Candidate's ability to complete an assessment will not be affected by the Candidate's choice not to provide Research Data, nor will such choice affect Candidate's assessment results.
8.7 Assessment Validation and Benchmarking
(a) Company authorizes SforSkill to use Assessment Data and Results Data for assessment validation and benchmarking purposes. SforSkill uses such Assessment Data and Results Data, along with Research Data, to ensure that the SforSkill psychometric instruments remain fair and objective to prevent unfair discrimination, and to benchmark tests against industry recognized differences for particular groups. SforSkill Group and its psychologists are bound by ethical guidelines and data protection law in the use of all data. Access to any data used for validation, benchmarking, or research will be restricted to SforSkill Group employees directly involved in research supporting SforSkill Group products and services. SforSkill may disclose to Third Parties the results of its research in an aggregated and anonymised format that does not include any information identifying Company or any identifiable individual.
The Agreement, its content, the matters to which it relates and information exchanged, whether in tangible or intangible form, and whether disclosed orally or in writing, pursuant to it are confidential between the parties. If there is an existing mutual confidentiality agreement in effect between the parties then this section applies only to the extent that it extends such existing agreement. Each party will apply no lesser security measures and degree of care than those which the receiving party applies to its own confidential information and which the receiving party warrants as providing adequate protection from unauthorized disclosure, copying or use.
Notwithstanding the foregoing, an obligation of confidentiality will not exist in relation to any information which:
(a) is already in the public domain through no act or omission of the receiving party;
(b) is independently developed by the receiving party, which independent development can be evidenced in writing; or
(c) is required to be disclosed pursuant to a legal obligation providing the receiving party first consults with the disclosing party to agree on an appropriate course of action.
9.3 Return of Confidential Information
On expiry or termination of the Agreement, each party will return to the other party, or confirm destruction of, the other's confidential information upon request.
Neither party will give money or anything of value or make any offers or promises to pay money or anything of value – either directly or indirectly, through another person or entity to a (“Recipient”), defined as any:
(a) private commercial entity or individual, or
(b) a political party, political official, candidate for political office, or
(c) a government official, including officers and employees of
(1) government agencies and departments;
(2) state-owned or state-controlled companies, or
(3) public international organizations (e.g., United Nations, World Bank), in order to assist a party in obtaining or retaining business for or with, or directing business or an improper advantage to SforSkill, Value Innovation Pvt. Ltd., Company, or any person to:
(d) influence any act or decision of the Recipient in his/her official capacity, or
(e) induce the Recipient or someone under Recipient's control or direction to do or fail to do any act in violation of the Recipient's lawful duty, or
(f) induce such Recipient to use his/her influence with a government or government instrumentality or
(g) secure any improper advantage.
Each party will comply with all applicable anti-corruption laws, statutes, regulations, and codes. Breach of this Section 10.1 is a material breach of this Agreement.
Nothing in the Agreement will create, or be deemed to create a partnership or joint venture or relationship between employer and employee or principal and agent between the parties.
10.3 Force Majeure
Neither party will have any liability to the other if the affected party does not fulfil its obligations to the other due to an event outside the affected party's reasonable control.
SforSkill may request:
(a) use of Company's company name and logo in SforSkill's customer lists (whether online or offline) and other marketing materials;
(b) Company to participate in a press release which announces Company's decision to use SforSkill's Products and/or Services, or
(c) Company to participate in the joint development of a case study describing Company's use of the Products and/or Services, or in other joint press and marketing activities.
Notwithstanding the foregoing SforSkill Group may use Company's plain text name as required in any public reporting or regulatory documents.
Notice under the Agreement will be in writing and delivered by registered post or other carrier providing a receipt to the address stated in the Order and to the attention the SforSkill Business Manager with a copy to the following:
Value Innovation Pvt. Ltd. (SforSkill)
Attention: Head of Legal
A-22, Sector 4, Noida, UP- 201301
If any provision of the Agreement is held to be invalid under any enactment or rule of law, that invalidity will not affect the rest of the Agreement, which will remain valid and enforceable. Any waiver of any breach of the Agreement will be in writing, and will not prevent the subsequent enforcement of that provision nor be deemed to be a waiver of any subsequent breach of that or any other provision.
Neither party will assign or otherwise transfer its rights or responsibilities under the Agreement to any third party without the other party's prior written consent. SforSkill may, however, sub-contract its obligations to group companies, approved distributors, partners, associates or other qualified subcontractors provided that SforSkill will remain at all times responsible to Company for SforSkill's obligations under the Agreement. No third party will have the right to enforce any term of the Agreement.
The Agreement and any dispute arising out of it will be governed by Indian Lawas and the parties irrevocably submit to the exclusive jurisdiction of the Noida courts.
Product and Services Schedule
This Product and Services Schedule contains additional terms that apply to Products and/or Services that Company may Order under this Agreement.
1 Software as a Service
(a) The Company may order SforSkill access to the SforSkill online talent management services (“SforSkill Online Service”) on a Subscription or Unit purchase basis (as such terms are defined below). The SforSkill Online Service may require an Order for Services to establish links with Company's website and configure access to the SforSkill Online Service for Company's purposes. This may include delivery of SforSkill tests online to Company's candidates, assessing Company's candidate results and making the resulting reports on Company's candidates available to Company through the SforSkill Online Service.
2 SforSkill Subscription
(a) The SforSkill Online Service may be purchased by “Subscription”, which provides Company with access to SforSkill Online Service for the duration of the Subscription period agreed in an Order. A Subscription may be limited or unlimited and subject to different parameters. The limitation may be defined by reference to the number of online credit units, users, SforSkill tests (excluding third party content) or other measures as stated in the Order. Substantial changes to the Basis of Fees as defined in the Order (whether Units, Applications, Assessments, or a number of full-time employees) may result in modification or termination of the Subscription. If Company exceeds a specified limitation before the end of the Subscription period, then SforSkill reserves the right to charge the additional use at its standard rates for the Tests consumed during the remainder of the Subscription period. Any outstanding fees for additional Tests will become payable before Company renews their Subscription.
(b) Duration: Unless otherwise agreed in an Order, Company's Subscription period starts on the date Company receives its username and password for new accounts, or on the anniversary of such date for Subscription renewals and ends 12 months later. The Subscription will automatically expire at the end of the agreed Subscription period unless the parties agree in writing to renew. If Company uses the SforSkill Online Service after expiration, SforSkill reserves the right to charge for the Tests used at the standard rate for such tests
(c) Rates: Subscription fees are non-cancellable and non-refundable except as otherwise stated in an Order. Once ordered, the Subscription fees remain due and payable regardless of the extent to which Company makes use of the SforSkill Online Service. SforSkill may increase Subscription fees at the start of each renewal Subscription period and such renewal pricing will be stated in the Order. If Company does not agree to an increase, Company's Subscription will not be renewed and any subsequent use of SforSkill Online Service will be charged at SforSkill's standard rates for the Units used.
3 SforSkill Tests
(a) If Company purchases Tests under the SforSkill Online Service, the appropriate number of Tests will be deducted from Company's account whenever Company runs a SforSkill report or a Company candidate starts a SforSkill online test.
(b) Tests remain on Company's account for use on the SforSkill Online Service for 1year from the date of purchase (“Validity Period”). After the Validity Period, Tests will automatically expire and will be deleted from Company's account. No refund or credit will be payable for expired Tests. All Tests, whenever purchased, will be used in strict chronological order from their date of purchase such, upon use, the oldest Tests will be deducted first from Company's account.
(c) Upon expiry or termination of the Agreement (other than termination by SforSkill in accordance with clause 6.2), any Test remaining on Company's account will expire and will not be refunded.
The Company will nominate employees who will have access to the SforSkill Online Service and who is responsible for the use or misuse of the SforSkill Online Service. The Company will instruct its employees to keep confidential any username and password assigned by SforSkill. The Company must notify SforSkill of any actual or anticipated unauthorized access to or use of the SforSkill Online Service as soon as Company becomes aware of such actual or anticipated unauthorized access.
6 Fair Use
Where Company has agreed with SforSkill an estimated annual usage and if Company's actual usage is significantly different, SforSkill may review Company's usage with Company and may suggest a different package for the remainder of the Agreement term. In the unlikely event that SforSkill are unable to resolve this issue with Company through agreement, SforSkill reserves the right to terminate Company's Agreement with 30 days prior written a notice and provide Company with a pro-rated refund of any monies Company has paid.
7 Support, Maintenance, and Upgrades
(a) SforSkill provides Company with SforSkill customer support services for administrators at no additional cost in accordance with SforSkill support services policy. Such support services are not available to Company's customers or candidates and additional charges will apply for any requests for support by a direct end customer or candidate support directed to SforSkill by Company.
(b) SforSkill will use all commercially reasonable endeavours to have the SforSkill Online Service generally available for use except for scheduled maintenance periods (which are published in advance) or unscheduled maintenance required to address system issues. SforSkill will conduct system upgrades to SforSkill Online Service from time to time and are generally provided at no additional cost to Company. SforSkill will obtain Company's prior written consent if an upgrade requires additional services that are to be charged to Company. The published maintenance schedule will include dates for implementation of SforSkill Online Service upgrades as well as routine maintenance. In the event that immediate action is required (such as in the event of an attempted or successful security breach), SforSkill will inform Company as soon as is reasonably practicable where such breach or remedial action directly affects Company's data.
Access to SforSkill's online systems is dependent on third parties, such as internet service providers. SforSkill will have no liability to Company for any losses Company suffers resulting directly or indirectly from:
(a) failures of performance on the part of SforSkill's internet service provider; or
(b) failure of Company's equipment or those of Company's candidate(s) or third parties; or
(c) reasons related to SforSkill's provision of system upgrades or maintenance; or
(d) any security breach of SforSkill's system unless such breach is shown to be the result of SforSkill's negligence; or
(e) inability to access the SforSkill Online Service in any one country due exclusively to SforSkill's software or hardware for any period not exceeding (i) ten (10) consecutive hours or (ii) an aggregate of more than twenty-four (24) hours in any calendar month.
9 SforSkill Partner
Limited Partner Rights
If a Company or individual has not entered into a separate partnering agreement, it may only purchase Products or Services from SforSkill to administer to or resell to third parties under the following limited circumstances. The third parties must:
(a) be residents of the Territory;
(b) secure substantially similar terms with their customers or clients for use of the Products and/or Services;
(c) retain all branding and copyright statements on the Products and Services,
(d) use the Products and/or Services only for their internal purpose (provided such internal use is not to directly or indirectly develop competing products and/or services);
(e) not make any representations or warranties other than those provided in the SforSkill Terms of Business;
(f) be required to grant SforSkill all the rights stated in section 8 Data Protection of the SforSkill Terms of Business;
(g) not represent itself as SforSkill, a licensed partner, a distributor or an agent of SforSkill or SforSkill Group.