1. License Grants
eSkill grants to Customer a non-transferable, non-exclusive license (“License”) to access and use the Services available through the eSkill.com website (“Website”) in order to create and administer skills tests for the purpose of recruiting and training staff for their organization, subject to the terms of this Agreement.
2. Reasonable Usage; Legal Compliance
eSkill reserves the right to review Customer’s test volumes for reasonable usage, given the Customer’s type of usage license, and associated hiring, training, or staffing service needs. Any exceptions, such as for resellers or staffing firms, must be specified in the Order or otherwise in writing and contain an authorized eSkill signature. Customer shall comply with the law when conducting job testing and other activities that use eSkill’s questions or Services.
Customer agrees to pay the amount specified on your eSkill Order form, which may be reflected on an invoice generated by eSkill, for the test credits or subscription license chosen by Customer.
4. Terms and Termination
- This Agreement will commence upon Customer’s confirmed purchase of eSkill Services, and continue through the term of Services provided in the Order. Termination for convenience is not contemplated by this Agreement. Upon termination, regardless of cause, Customer will not be entitled to credits or refunds for any unused portion of this Agreement, except to the extent provided in Section 8.a below.
- eSkill reserves the right to prevent, cancel or suspend any individual’s, employer’s, recruitment professional’s, or others’ access to the Website and Services on account of a violation of this Agreement or for conduct likely to harm eSkill’s reputation, goodwill or customer relations or cause eSkill other material damage, loss or expense. Unless prohibited by law, eSkill will promptly attempt to contact Customer, describe the issue(s) that caused it to exercise these rights, and attempt to resolve the issue and resume Service. Notwithstanding, eSkill may terminate this Agreement in the event Customer breaches any material provision of this Agreement and fails to cure the breach within 10 days of notice, provided that breaches that involve eSkill Confidential Information or intellectual property rights must be cured within 2 days of notice to avoid termination.
- Customer may terminate this Agreement if the event eSkill breaches any material provision of this Agreement and fails to cure the breach within 10 days of notice.
- eSkill shall retain Customer’s tests and test scores in eSkill’s database for a period of up to 1 (one) year after Customer’s account expires. After this time, all of Customer’s tests and scores may be permanently deleted from eSkill’s database. The terms of Sections 5 – 8, 9.h and 9.i and shall survive termination.
Except upon the express written consent of eSkill, Customer agrees that it shall not disclose and shall not, directly or indirectly, for itself or on behalf of others, use in any future endeavor of any kind, any information deemed to be eSkill “Confidential Information.” “Confidential Information” shall mean any and all information obtained from the Website or from eSkill during the term of this Agreement, such as Customer’s pricing and discount terms, unless it is already in the public domain, becomes public through no fault of Customer or is received by Customer from a third party who has a right to disclose it on a non-confidential basis.
6. Intellectual Property.
- Copyrights. All data, test content, software, and explanatory materials on, or accessed through, the Website or Services (“Materials”) are the copyrighted property of eSkill. Except as stated herein, none of the Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means without the prior written permission of eSkill or the respective copyright owner.
- Trademarks. eSkill®, eSkill.com, the eSkill logo and the other marks and brands associated with eSkill’s products and services (the “Marks”), as well as all page headers, custom graphics, button icons, and scripts, are service marks, trademarks and/or trade dress of eSkill, whether registered or unregistered and may not be copied, imitated or used, in whole or in part, without the prior written permission of eSkill. All other trademarks, service marks, product names, and company names or logos mentioned herein are the property of their respective owners.
- Rights of Use. eSkill permits Customer, during the term, to display, copy, distribute and download the Materials for use only in connection with its own hiring and staffing processes, and not for resale or redistribution to, or use on behalf of, any third party, without eSkill’s express written permission; provided that Customer may not, without the written permission of eSkill or the respective copyright owner, (i) copy, publish or post any Materials, in whole or in part, on any computer network or broadcast or publications media, (ii) modify the Materials (except to edit or create custom questions using the eSkill Author or UI), or (iii) remove or alter any copyright, trademark or other proprietary notices contained in the Materials. Customer may not copy or adapt the HTML code that eSkill creates to generate its pages. Additionally, Customer may not reverse engineer, decompile, recompile, translate, adapt or disassemble the eSkill software that is made available to Customer (the “Software”) or any part thereof or otherwise attempt to access that software’s source code in any manner. Such code is also considered to be works of authorship protected by eSkill’s copyright.
- Unauthorized Use. Unauthorized use of the Materials or Marks may violate copyright, trademark, and other laws. Customer may not sell or modify the Materials or reproduce, display, publicly perform, distribute, or otherwise use the Materials in any way for any public or commercial purpose.
- Questions. The test questions provided by eSkill are the property of eSkill and cannot be used outside of the eSkill Service without its permission. Customer is responsible for any questions that it revises or creates.
- eSkill is not involved in the actual transaction between employers and candidates, and so has no control over the quality, safety or legality of the users’ hiring process, the truth or accuracy of responses, the ability of employers to offer job opportunities to candidates or the ability of candidates to fill job openings. In addition, there are risks, including physical harm, dealing with strangers, and use of the Website by foreign nationals, underage persons or people acting under false pretenses. Customer assumes all risks associated with dealing with other users with whom it may come in contact through the Website.
- Changes to the Website and Services may be made at any time. Customer agrees that it is solely responsible for the form, content, legal compliance, and accuracy of any questions, question responses, or other content placed by Customer on the Website. eSkill shall not be considered an employer with respect to your use of the Services and shall not be responsible for any employment decisions, for whatever reason made, made by users of the Services.
- Third-Party Compliance Disclaimer: ESKILL DISCLAIMS ANY AND ALL LIABILITY RELATED TO THIRD-PARTY RECRUITMENT AND HIRING PROCESSES, AS WELL AS ANY NON-COMPLIANCE BY THIRD PARTIES WITH FEDERAL AND STATE EMPLOYMENT OBLIGATIONS, REGULATIONS AND GUIDELINES.
- Warranty Disclaimer. eSkill strives to keep its Materials and Services current and free of defects but cannot guaranty this. Therefore, THE WEBSITE, SERVICES, AND MATERIAL ARE PROVIDED ‘AS IS’ AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, ESKILL DISCLAIMS ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. ESKILL MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, LEGAL COMPLIANCE OR TIMELINESS OF THE MATERIAL, SERVICES, SOFTWARE, TEXT, GRAPHICS, AND LINKS. ESKILL DOES NOT WARRANT THAT THE WEBSITE, SERVICES OR MATERIAL WILL OPERATE ERROR-FREE OR THAT THIS WEBSITE AND ITS SERVERS ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS.
- Disclaimer of Damages. IN NO EVENT WILL EITHER PARTY (OR ITS AFFILIATES, AGENTS OR SUPPLIERS) BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF REVENUE, LOSS OF CUSTOMERS, LOSS OF GOODWILL, LOST PROFITS, COST OF COVER OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, ARISING IN ANY MANNER FROM THIS AGREEMENT, FROM THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER, OR FROM THE USE OR INABILITY TO USE THE WEBSITE, SERVICES, AND MATERIALS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall eSkill’s total liability to Customer from any and all causes (including negligence and indemnity) exceed the total fees paid by Customer to eSkill during the twelve (12) month period preceding the claim.
- Defense of Third Party Claims. eSkill will defend and indemnify the Customer against any third-party claim to the extent that the Services or Materials provided by eSkill under the terms of the Agreement violate copyright, trademark or trade secret, provided that Customer promptly notifies eSkill of the claim in writing, cooperates with eSkill in the defense, and allows eSkill to solely control the defense or settlement of the claim. eSkill will pay the claim defense costs, any eSkill negotiated settlement amounts, and any court awarded damages. If such a claim appears likely, then eSkill may modify the relevant data or item, procure the necessary rights, or replace it with the functional equivalent. If eSkill determines that none of these are reasonably available, then eSkill may terminate the applicable Service and refund any prepaid and unused fees. eSkill has no obligation for any claim arising from use of Customer data or items not provided by eSkill. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND ESKILL’S SOLE LIABILITY FOR THIRD-PARTY CLAIMS.
- By Customer. Customer will defend and indemnify eSkill against any third-party claims to the extent that such claim alleges that the Customer data, content or materials violate a patent, copyright, trademark, or trade secret and/or to the extent that Customer’s negligence, misconduct, violation of the law or misuse of the Website, Services or Materials is relevant to the third-party claim. Customer will pay the claim defense costs, any Customer negotiated settlement amounts, and any court-awarded damages, including attorney’s fees and defense-related expenses, provided that eSkill promptly notifies Customer in writing of the claim, cooperates with Customer in the defense and allows Customer to control the defense and any related settlement.
- Force Majeure. Neither party shall be liable for any delay or failure to perform under this Agreement that is due to causes beyond its reasonable control.
- Independent Contractors. The parties’ relationship is strictly contractual, shall not give rise to any fiduciary relationship, and shall remain at all times one of independent contractors; neither party nor its employees, consultants or representatives shall be considered employees, partners, joint ventures, agents or franchisees of the other; and neither has the authority to bind the other nor shall make or purport to make any representations or commitments on behalf of the other.
- Entire Agreement. This Agreement, together with any attachments, constitutes the entire agreement between the parties regarding its subject matter and supersedes any and all prior or contemporaneous agreements, understandings, representations, or statements of either party.
- All Changes in Writing. No amendment or waiver of rights under this Agreement shall be effective unless made in writing by the party against which it is being enforced.
- No Assignment. Neither party may assign or otherwise transfer any of its rights or delegate any of its duties hereunder in whole or in part, without the other party’s prior written consent, and any attempt to do so shall be void and of no effect; provided, however, that either party may assign this Agreement to any entity into which it is merged or which acquires all or substantially all of its business or assets without consent provided notice is given.
- Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given: (i) upon personal delivery by hand or by a reputable overnight delivery service; or (ii) upon receipt if proof of actual receipt can be provided (including return acknowledgment of an emailed notice); or (iii) three days after mailing by U.S. certified mail, return receipt requested, addressed to the other party at the address set forth above or to such other address of which a party properly notifies the other.
- Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, that provision shall be severed, and the remainder of this Agreement will continue in full force and effect.
- Governing Law and Competent Courts. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its choice of law principles, provided that the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Each party irrevocably (i) agrees that any action or proceeding arising from or relating to this Agreement may be brought only in the courts of Massachusetts or the U.S. District Court located in Boston, Massachusetts, and (ii) consents, for itself and in respect of its property, to the jurisdiction of each such court in any such action or proceeding,
- English Language. The Agreement was negotiated and executed in English, and the original language version shall be controlling; all communications and notices hereunder shall be in English.
10. Customer Services
Any incidental integration, development, and other professional services provided by eSkill to Customer will be formalized under a separately numbered Schedule of Work (hereinafter “SOW”). Each SOW is to be separately executed, and when so executed shall become a part of this Agreement. Terms and conditions in said SOW(s) shall supersede any conflicting terms and conditions in this Agreement for only the specific project assignment defined in said SOW(s). All SOW(s), together with the terms and conditions of this Agreement, shall constitute and be construed as the Agreement.