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Software as a Service Agreement

SKILLSENGINE - SAAS AGREEMENT

This agreement (“Agreement”) is made and entered as of the Effective Date (as defined herein) by and between by Texas State Technical College, an institution of higher education and an agency of the State of Texas (“TSTC”), and You, our Customer (“Customer”).  Customer and TSTC may each be referred to as a “Party” and collectively referred to as the “Parties”.

SECTION 10 OF THESE TERMS CONTAINS AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT APPLY TO ALL CLAIMS BROUGHT AGAINST TSTC IN THE UNITED STATES. PLEASE READ THEM CAREFULLY.

1. Definitions.

“Administrator” means a user who represents Customer to this Agreement and executes Customer’s duties and obligations under this Agreement on Customer’s behalf. An Administrator has full and total rights to Customer’s Account, including setup, activation, cancellation, billing, and inviting additional people to become Registered Users on the Account. 

“Affiliate” means a person or entity that owns, is owned by, or is under common control with a Party, and “control” in this definition means that a person or entity owns more than 50% of the equity interest of any entity and/or has the ability to control the management of such entity.

“Named Users” means an employee or agent of Customer who has been issued an user identification and password by TSTC at Customer’s request. Named Users will be authorized to use the Services solely for the benefit of Customer (and not for the benefit of themselves or any third party). Named Users may include the employees, consultants, contractors, agents, or other designees of Customer and its Affiliates, but shall not include any employee or agent of any TSTC competitor.

“Customer App” means any application, interface or other website content accessing or connected to the Services from the Customer Site. 

“Customer Information” means all information and data submitted to TSTC by or on behalf of Customer, or by a Named User, in connection with the creation and management of Customer’s account for the Services, including data that is collected through the Services.

“Customer Site” means the base URL through with the Services will be made available to Customer via an applicable program interface (API). 

“Order Form” means each order form for placing orders for the purchase of the Services or any additional services offered by TSTC referencing this Agreement. 

“Platform” means the TSTC proprietary employment, curriculum, workforce and labor skills databases, interfaces, engines, libraries and other features, functionality and software components offered by TSTC and all APIs and API-related code sets provided by TSTC, also referred to as “SkillsEngine”.  

“Services” means access to the Platform and services, via a customer account, that are ordered by and paid for by Customer and made available by TSTC, including user guides, documentation, and help/training materials provided by TSTC.

“Service Start Date” means the first date on which Customer is granted access to the Services purchased.

2. TSTC Services.

2.1 Services. During the Term (as defined herein), subject to the terms and conditions of this Agreement for such Services, and solely for Customer’s internal business and non-commercial purposes, TSTC shall make the Services available to Customer. Customer may, at any time, request TSTC to perform additional services (including job processing and analysis and assistance with developing interfaces). TSTC will evaluate Customer’s request and, if it agrees to perform said additional services, Customer and TSTC shall execute an additional Order Form. 

2.1 Updates and Functionalities. Customer acknowledges that, from time to time, TSTC may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of such Platform and Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, TSTC will provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”). Customer acknowledges that the Platform and Services may interoperate with several Third-Party Supported Platforms, and that the Platform and Services are highly dependent on the availability of such Third-Party Supported Platforms. If at any time any Third-Party Supported Platforms cease to make their features or programs available to TSTC on reasonable terms, TSTC may cease to provide access to such features or programs to Customer without entitling Customer to refund, credit, or other compensation.  In no way is TSTC required to customize its Services for Customer, and TSTC does not represent or warrant that its Platform or Services will be compatible with Customer’s systems.

2.3 Acceptable Use Policy. Customer shall:

(i) be responsible for Named Users’ compliance with this Agreement;

(ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform or Services, including keeping passwords and usernames confidential and not permitting any third party to access or use its or any of its Named Users’ user names, passwords, or Customer account for the Services;

(iii) be solely responsible and liable for all activity conducted through its Customer account in connection with the Services;

(iv) promptly notify TSTC if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer’s (or any Named User’s) user name, password, or Customer account;

(v) use, or otherwise access in connection with Customer’s use thereof, the Services only in accordance with applicable laws and government regulations; and

(vi) comply in all respects with all applicable terms of the Third-Party Supported Platforms that it accesses or subscribes to.

Customer must not:

(a) make the Platform or Services available to anyone other than its Named Users;

(b) sell, trade, or otherwise transfer the Platform or Services to another party;

(c) use the Services to store or transmit any content that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law;

(d) upload to, or transmit from, the Platform or Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component;

(e) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Platform or Services (including any mechanism used to restrict or control the functionality of the Platform or Services), any third-party use of the Platform or Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law);

(f) scrape, crawl, download, or export data from the Services, expect as intended and provided for by the Services;

(g) attempt to gain unauthorized access to the Platform or Services, the Supported Platforms, or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Platform, Services, or the Third-Party Supported Platforms;

(h) access the Platform or Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Platform, Services, or the Third-Party Supported Platforms;

(i) share login credentials or paid accounts between multiple users or organizations; 

(j) authorize, permit, or encourage any third party to do any of the above; or

(k) engage in any other activities that TSTC, in its sole discretion, deems detrimental to its business interests or the interests of other users. 

Customer agrees that TSTC may temporarily suspend or terminate its access to the Platform or Services for a violation of this Section 2.3 or for any abusive practices that degrade the performance of any Service for Customer and/or other TSTC customers, or at TSTC’s sole discretion. 

2.4 Third-Party Supported Platforms and Services. Customer’s use of Third-Party Supported Platforms and other third parties via third-party websites, platforms, or applications (collectively, the “Third-Party Services”) is governed solely by the terms and conditions of such Third-Party Services (and Customer shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between Customer and the relevant third party, and not TSTC. TSTC makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any contract entered into and any transactions completed and any contract entered into by Customer with any such third party. Further, Customer acknowledges and agrees that, if Customer installs or enables a Third-Party Service, Customer grants TSTC permission to allow the provider of such Third-Party Service to access its Customer Information solely to the extent required for the interoperation of the Third-Party Service with the Services or as Customer may otherwise authorize or direct.

2.5 Non-Exclusivity. Customer acknowledges that the rights granted to it under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict TSTC’s right to license, sell, or otherwise make available the Platform or Services to any third party or perform any services for any third party.

2.6 Data Management. During the Term, TSTC does not modify Customer Information and therefore is not responsible for the accuracy of any Customer Information. It is the Customer and Administrator and/or their managers that are responsible for the accuracy of all Customer Information. Additionally, TSTC does not delete Named Users during the Term, and therefore is not responsible for the loss of any Customer Information that occurs when a Named User is deleted. TSTC reserves the right to delete data and Named Users upon termination or violation of this Agreement.  

2.7 Data Collection; Storage. Customer has control and responsibility for determining what Customer Information is submitted to the Services and for obtaining all necessary consents and permissions for submission of Customer Information and processing instructions to TSTC. Without limiting TSTC’s obligations hereunder, Customer acknowledges that Customer is responsible for properly configuring and using the Platform and Services and otherwise taking reasonable action to secure and protect Customer accounts and Customer Information. 

2.8 Rights in Customer Information. Customer is solely responsible for the accuracy, content and legality of all Customer Information and agrees to comply with all applicable laws in its use of the Services. Customer represents and warrants that Customer has all necessary rights, consents and permissions to collect, share and use Customer Information as contemplated in this Agreement, without violation or infringement of any third-party intellectual property, publicity, privacy rights or any applicable laws and regulations. 

2.9 Excluded Date. Customer represents to TSTC that it will not (and it will not permit a Named User to) load or process any data comprising (i) FERPA or FERPA-related information, or (ii) any protected health information (“PHI”) as such term is defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA,” found at Public Law 104-191), and certain privacy and security regulations promulgated by the U.S. Department of Health and Human Services to implement certain provisions of HIPAA and the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), as modified by the Final Omnibus Rule effective as of March 26, 2013 (collectively the “HIPAA Regulations”) found at 45 C.F.R. Parts 160, 162 and 16.

3. Intellectual Property.

3.1 Platform and Services. As between Customer and TSTC, TSTC retains all right, title, and interest in and to the Platform and Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of TSTC’s rights or interests therein or any other TSTC intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by TSTC.

3.2 Feedback. Customer may from time to time provide suggestions, comments, or other feedback to TSTC with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer and, notwithstanding Article 5 of this Agreement, shall not create any confidentiality obligation for TSTC. Customer shall, and hereby does, grant to TSTC a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.

3.3 Customer Information. Customer hereby grants TSTC a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.1) license, with right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, index the Customer Information for the purpose of providing and developing the Platform and Services to Customer and supporting Customer’s use of the Platform and Services. Subject only to the limited license expressly granted herein, Customer and its Named Users shall retain all right, title and interest in and to, and all intellectual property rights in, the Customer Information. Nothing in this Agreement will confer on TSTC any right of ownership or interest in or to, or the intellectual property rights in the Customer Information.

3.4 Privacy Policy. Customer is solely responsible for the Customer Information submitted to the Platform.  TSTC may use the Customer Information to provide the Services, as provided herein and as provided in TSTC’s privacy policy, which is incorporated herein, published at SkillsEngine.com/se/privacy-policy (the “Privacy Policy”) or as may be required by law. 

4. Fees and Payment.

4.1 Fees. Customer will be automatically charged at the end of each month or each year for their subscription to the Services. (the “Fees”). There are no refunds or credits for partial months of service, upgrade or downgrade refunds, or refunds for months unused with an open account. The number of User or processing subscriptions purchased may be increased but cannot be decreased during the relevant subscription term stated on the Order Form. 

4.2 Invoicing. TSTC shall provide an invoice to Customer reflecting the Fees charged at the end of every month. Any disputed amounts shall not affect payment of non-disputed amounts. Customer shall make automatic payments to TSTC either via credit card, wire, or automated clearing house (“ACH”). Customer understands and agrees that TSTC will not be held liable for any Named User’s failure to complete a transaction entered into through the Platform. 

4.3 Payment Processor. We currently use Stripe as our payment gateway service provider. When customers make a payment, their payment information is securely processed by Stripe. We have implemented data privacy and security measures in compliance with Stripe’s requirements to protect our customers' information. Please note that there may be applicable fees and charges associated with using Stripe for transactions. These fees and charges are subject to change without notice. If you choose to make a transaction through Stripe, you agree to their terms and conditions, as well as ours. By using our payment processor, you grant us permission to access and process payments through Stripe. We retain the ability to change our payment processor at any time, and will notify customers if any changes are made. 

4.4 Auto-Renewal.  Customer agrees and authorizes TSTC to issue a monthly or yearly recurring charge for Customer’s utilization of the Platform and Services absent termination consistent with Article 6. By agreeing to these terms, Customer authorizes TSTC to initiate transactions on your behalf using the payment information Customer has provided. Customer acknowledges and agrees that Customer is responsible for ensuring that the payment information provided is accurate and up-to-date. Customer further acknowledges and agrees that TSTC may rely on the payment information Customer has provided to initiate transactions. 

4.5 Re-Pricing of Fees.  Customer agrees that any additional Fees required by the foregoing sentence shall constitute a required true-up in order to maintain use of the Services, and payment for any such Fees shall be made by Customer within thirty (30) days of notification by TSTC to Customer.

4.6 Late Payment. Any payment not received within thirty (30) days after the invoice date will accrue interest at a rate equal to the lesser of 1.5% per month or the highest rate permitted by applicable law. If Customer is more than fifteen (15) days delinquent in its payments, TSTC may, upon written notice to Customer, modify the payment terms to require advance payment for the full amount of the fees for the remainder of the term of each Order Form, suspend Customer’s access to the Services, and/or require other assurances to secure Customer’s payment obligations due hereunder. 

4.7 Taxes and Withholdings. Customer is responsible for paying all taxes, assessments, charges, fees, and levies that may be levied or based upon Customer’s subscription to the Services, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority.  If TSTC has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.6, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides TSTC with a valid tax exemption certificate authorized by the appropriate taxing authority.

5. Confidential Information and Security Requirements.

5.1 Confidential Information. Each Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care consistent with industry standards) and will not disclose or use any Confidential Information (as defined below) of the other Party for any purpose outside of the scope of this Agreement, and each Party shall limit access to Confidential Information to those of its, or its Affiliates’, employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving Party containing protections no less stringent than those herein. In this Agreement, “Confidential Information” means all information, data, and financial information relating to the business, commercial strategies, pricing, personnel, customers, products, or services of each Party.  Confidential Information includes (i) Each party’s proprietary system offerings, including the Platform and/or Services, along with documentation and plans related thereto; (ii) Passwords, authorization keys, or codes use to access or operate such system offerings; (iii) Any results, Customer Information, or statistics collected through use of the system offerings; or (iv) Any business information that is either marked physically or identified orally as “confidential” or “proprietary.”  Confidential Information excludes any information that (a) was lawfully in the receiving party’s possession before receiving it from the disclosing party; (b) is provided in good faith to the receiving party by a third party without restriction on use or disclosure and without breaching any rights of the disclosing party; (c) is or becomes generally known or available to, or accessible by, the public through no act or omission of the receiving party; or (d) was or is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. In the event that the receiving party or any representative of the receiving party becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the receiving party will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.

5.2 Security Requirements. TSTC has implemented technical and organizational security measures consistent with the prevailing industry standards. However, TSTC cannot guarantee that unauthorized third parties will never be able to defeat those measures and expressly denies any responsibility for damages, monetary or otherwise, resulting from unauthorized third party access to Customer’s account or use, alteration, or disclosure of the Customer Information.

5.3 TPIA Requests. Notwithstanding any provisions of this Agreement to the contrary, Customer understands that TSTC will comply with the Texas Public Information Act, Gov’t Code, Chapter 552 as interpreted by judicial opinions and opinions of the Attorney General of the State of Texas. TSTC will notify Customer of receipt of a request for information related to this Agreement. Customer will cooperate with TSTC in the production of documents responsive to the request. Customer may request that TSTC seek an opinion from the Attorney General of the State of Texas; however, TSTC will not honor Customer’s request for an opinion if the request is not based upon a reasonable interpretation of the Texas Public Information Act. Additionally, Customer will notify TSTC General Counsel of any third-party requests for information that was provided by the State of Texas for use in conducting this Agreement. This Agreement and all data and other information generated or otherwise obtained in the performance of its responsibilities under this Agreement may be subject to the Texas Public Information Act. Customer is required to make any information created or exchanged with the state pursuant to this contract, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to the state. Customer agrees to maintain the confidentiality of all TSTC Information received from the State of Texas during the performance of this Agreement, including information which discloses confidential personal information particularly, but not limited to, social security numbers.

6. Term and Termination.

6.1 Term of Agreement. This Agreement shall commence on the Service Start Date (the “Effective Date”) and shall continue in effect for as long as an Order Form is in effect referencing this Agreement or until this Agreement has been terminated in accordance with this Article 6 (the “Initial Term”). This Agreement shall automatically renew on a monthly or annual basis, depending on the subscription plan selected by Customer, unless a Party terminates this Agreement beforehand (“Renewal Term”, collectively with Initial Term, the “Term”). Upon renewal, TSTC reserves the right to increase the Fees for Services by providing Customer written notice thereof (which notice may be provided by email) at least 30 days prior to the end of the then-current term. 

6.2 Termination for Cause. A Party may terminate this Agreement for cause (i) upon 30 days' written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.  No refund shall be issued in the event of termination for cause by TSTC.

6.3 Termination for Convenience.  A Party may terminate this Agreement for convenience upon written notice (email is sufficient) to the other Party. Administrators of Customer’s account are solely responsible for properly canceling Customer’s account and need to email support@skillsengine.com requesting cancellation of the account or submitting a cancellation request here. 

6.4 Effects of Termination. Upon termination of this Agreement for any reason: (i) Customer will immediately cease all use of the Services; (ii) Customer will have no further access to its Customer account provided by TSTC; and (iii) Customer will pay TSTC all unpaid Fees owing to TSTC. In no event will termination relieve Customer of its obligation to pay any amounts and Fees payable to TSTC for the period prior to the date of termination and other obligations that survive termination of this Agreement. Customer Information will remain on our system for one year after cancellation and may be deleted from the Website after that time. Please note that this information cannot be recovered once it is deleted.

6.5 Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive, and such other provisions that expressly or by their nature are intended to survive termination shall survive the expiration or termination of this Agreement. Without limiting the foregoing, Section 4.1 as well as Articles 3, 5, 7-10 shall survive the expiration or termination of this Agreement.

7. Warranties and Warranty Disclaimer.

7.1 Mutual Warranties. Each of TSTC and Customer represents and warrants that it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement and that doing so is not in conflict with any other agreement.

7.2 TSTC Warranties. TSTC warrants that (i) subject to Section 2.2, the Services will materially perform in accordance with the applicable documentation and the functionality of the Services will not be materially decreased during the Term; and (ii) the Services do not knowingly contain any malicious code or viruses. For any breach of an above warranty, Customer’s exclusive remedies are those described in Section 6.3.

7.3 Disclaimer. SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION 7.3 MAY NOT APPLY TO CUSTOMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, TSTC EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TSTC SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, TSTC DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TSTC OR ELSEWHERE NOR ANY COURSE OF DEALING WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. 

TSTC DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING USAGE DATA, CUSTOMER INFORMATION, AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. TSTC DOES NOT CONTROL OR VET CUSTOMER INFORMATION AND IS NOT RESPONSIBLE FOR WHAT CUSTOMERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. TSTC IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SUPPORTED PLATFORMS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SUPPORTED PLATFORMS. TSTC EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR THE INFORMATION CONTAINED THEREIN AS WELL AS YOUR CUSTOMER ACCOUNT AND CUSTOMER INFORMATION.

7.4 State Agency Limits. The Parties are aware that there may be constitutional and statutory limitations on the authority of TSTC (a state agency) to enter into certain terms and conditions of this Agreement, including, but not limited to, those terms and conditions relating to liens on TSTC’s property; disclaimers and limitations of warranties; disclaimers and limitations of liability for damages; waivers, disclaimers and limitations of legal rights, remedies, requirements and processes; limitations of periods to bring legal action; granting control of litigation or settlement to another party; liability for acts or omissions of third parties; payment of attorneys’ fees; dispute resolution; indemnities; and confidentiality (collectively, the “Limitations”), and terms and conditions related to the Limitations will not be binding on TSTC except to the extent authorized by the laws and Constitution of the State of Texas.

8. Mutual Indemnification.

8.1 Indemnification by TSTC. Subject to Customer’s compliance with Section 8.3 and to the maximum amount as set forth in Article 9, TSTC shall defend Customer from and against any and all third-party claims that the use of the Services as permitted hereunder infringes a valid intellectual property right (a “Claim”) and shall indemnify Customer for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Customer in connection with any such Claim. 

TSTC will have no liability for any Claim to the extent it arises from:

(i) a modification of the Platform or Services by or at the direction of Customer or a Named User;

(ii) use of the Platform or Services in violation of this Agreement or applicable law;

(iii) use of the Platform or Services after TSTC notifies Customer to discontinue use because of an infringement or misappropriation claim;

(iv) the combination, operation, or use of the Platform or Services with any other software, program, or device not provided or specified by TSTC to the extent such infringement would not have arisen but for such combination, operation, or use; or

(v) Customer’s use of the Platform or Services in a manner that is inconsistent with its intended use.

For avoidance of doubt, TSTC’s indemnification obligations in this Section 8.1 will not apply to Third-Party Supported Platforms accessed through the Platform or Services.

If a Service has become, or in TSTC’s opinion is likely to become, the subject of any such Claim, TSTC may at its option and expense:

(a) procure for Customer the right to continue using the Service as set forth hereunder;

(b) replace or modify the Service or certain functionalities to make it non-infringing; or

(c) if options (a) or (b) are not reasonably practicable, terminate this Agreement for such Service.

This Section 8.1 sets forth TSTC’s sole liability (and Customer’s sole remedy) regarding infringement or misappropriation of third party rights.

8.2 Indemnification by Customer. Customer shall defend, indemnify, and hold harmless TSTC, its Affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection with or arising out of a claim (i) alleging that Customer’s use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates any applicable law; (ii) relating to, or arising from, Customer Information or Customer’s breach of Section 2.3 or Section 7.1; or (iii) relating to, or arising from, Customer’s use of any Third-Party Supported Platforms (including Customer’s breach of any terms or conditions applicable to any Third-Party Supported Platforms).

8.3 Indemnification Procedure. The indemnified Party shall (i) promptly give written notice of the claim to the indemnifying Party; (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle or defend any claim without the indemnified Party’s prior written consent unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party with reasonable cooperation and assistance at the indemnifying Party’s expense.

9. Limitation of Liability.

CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES ARE SET FORTH IN THE APPLICABLE SERVICE LEVEL AGREEMENT (ATTACHED AS EXHIBIT A).  EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL TSTC'S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES WHICH THE CAUSE OF ACTION AROSE, AS PRO-RATED BASED UPON THE FEES FOR THE THEN CURRENT TERM. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TSTC, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL TSTC BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF TSTC WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF TSTC FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF TSTC, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF TSTC OR ITS EMPLOYEES; OR (III) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

CUSTOMER AGREES THAT CUSTOMER WILL ONLY BE ABLE TO PURSUE CLAIMS AGAINST TSTC ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.  CUSTOMER FURTHER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF TSTC’S SERVICES MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. 

10. General.

10.1 Assignment. Neither Party may assign nor otherwise transfer any of its rights nor obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, TSTC may assign this Agreement in its entirety, without consent of Customer, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its shares or assets.

10.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect.

10.3 Publicity. Customer agrees that TSTC may use Customer’s name and logo and may disclose that Customer is a customer of the Services in TSTC advertising, press, promotion, and similar public disclosures, including at trade shows and similar events. In addition to the foregoing, Customer hereby grants TSTC a non-exclusive license during the Term to list Customer’s name and display Customer’s logo as a TSTC customer on TSTC’s website.

10.4 Force Majeure. Except for payment obligations, neither Party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

10.5 Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or interference against the Party drafting this Agreement in construing or interpreting the provisions hereof.

10.6 Amendment. This Agreement and TSTC’s Terms of Service may be modified by TSTC at any time, with or without prior notice to You. Amendments or modifications to this Agreement or the Terms of Service will be binding on You when they are sent to You via email, or are posted on the Website. No amendment to this Agreement or the Terms of Service shall be valid unless prepared or signed by TSTC. Your continued use of and payment for the Services constitutes Your acceptance to any modifications or amendments to this Agreement and the Terms of Service.

10.7 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.

10.8 Notices. For purposes of service messages and notices about the Services, TSTC may place a banner notice across the Services or website to alert Customer. Alternatively, notice may consist of an email from TSTC to an email address associated with Customer’s account, even if TSTC has other contact information. For communication about Customer’s account and services associated with TSTC, TSTC may contact Customer or its Named Users through its Customer account or through other means including email, mobile number, telephone, or delivery services such as the postal service. Customer acknowledges and agrees that TSTC shall have no liability associated with or arising from Customer’s failure to maintain accurate contact or other information, including, but not limited to, Customer’s failure to receive critical information about the Services. Notices to TSTC must be delivered by email to support@skillsengine.com with a duplicate copy sent via registered mail to the following address: Texas State Technical College, 3801 Campus Drive, Waco, Texas 76705, Attention: General Counsel. This contact information provided may be updated by giving notice in accordance with this Section 10.8.

10.9 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all Parties to this Agreement, except that any provision that does not give rights or benefits to particular Parties may be waived in writing, signed only by those Parties who have rights under, or hold the benefit of, the provision being waived if those Parties promptly send a copy of the executed waiver to all other Parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.

10.10 Governing Law, Jurisdiction and Venue. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the State of Texas.  Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in McClennan County, Texas, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in McClennan County, Texas, such personal jurisdiction shall be nonexclusive.

10.11 Binding Arbitration. It is the intention of the Parties to use their reasonable best efforts to informally resolve, where possible, any dispute, claim, demand or controversy arising out of the performance of this Agreement by mutual negotiation and cooperation, a period of which shall be no less than five (5) business days from first notice of any such dispute.  In the event the Parties are unable to informally resolve any such dispute, including relating to this Agreement, the Parties agree to arbitrate any controversy, claim or dispute between them arising out of or in any way related to this Agreement and any disputes upon termination of the relationship, including claims for violation of any local, state or federal law, statute, regulation or ordinance or common law.  The arbitration will be conducted in McClennan County, Texas, by a single neutral arbitrator and in accordance with the American Arbitration Association’s (“AAA”) then current Employment Arbitration Rules’ expedited procedures for resolution.  Notwithstanding the provision in the preceding or subsequent paragraph with respect to applicable substantive law, the arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).  The arbitrator shall have the power to enter any award that could be entered by a judge of the trial court of the State of Texas, and only such power, and shall follow the law.  In the event the arbitrator does not follow the law, the arbitrator will have exceeded the scope of his or her authority and the parties may, at their option, file a motion to vacate the award in court.  The parties agree to abide by and perform any award rendered by the arbitrator.  Judgment on the award may be entered in any court having jurisdiction thereof.  The prevailing party shall be entitled to costs and attorneys’ fees.

10.12 Class Action Waiver. YOU AND TSTC ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR ANY OTHER REPRESENTATIVE OR CONSOLIDATED PROCEEDING. UNLESS WE AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING. ANY CHALLENGE TO THE VALIDITY OF THIS CLASS ACTION WAIVER SHALL BE DETERMINED EXCLUSIVELY BY A COURT AND NOT BY THE ADMINISTRATOR OR ANY ARBITRATOR. IF THERE IS A FINAL JUDICIAL DETERMINATION THAT APPLICABLE LAW PRECLUDES ENFORCEMENT OF THE WAIVER CONTAINED IN THIS PARAGRAPH AS TO ANY CLAIM, CAUSE OF ACTION OR REQUESTED REMEDY, THEN THAT CLAIM, CAUSE OF ACTION OR REQUESTED REMEDY, AND ONLY THAT CLAIM, CAUSE OF ACTION OR REQUESTED REMEDY, WILL BE SEVERED FROM THIS AGREEMENT TO ARBITRATE AND WILL BE BROUGHT IN A COURT OF COMPETENT JURISDICTION. IN THE EVENT THAT A CLAIM, CAUSE OF ACTION OR REQUESTED REMEDY IS SEVERED PURSUANT TO THIS PARAGRAPH, THEN YOU AND WE AGREE THAT THE CLAIMS, CAUSES OF ACTION OR REQUESTED REMEDIES THAT ARE NOT SUBJECT TO ARBITRATION WILL BE STAYED UNTIL ALL ARBITRABLE CLAIMS, CAUSES OF ACTION AND REQUESTED REMEDIES ARE RESOLVED BY THE ARBITRATOR. 

10.13 Entire Agreement. The terms of this Agreement, together with any and all Exhibits and other terms incorporated by reference, including, without limitation, TSTC’s Terms of Service and Privacy Policy, constitute the entire agreement between the Parties with respect to the subject matter thereof and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and is binding upon the Parties and their permitted successors and assigns. In the event of any conflict between this Agreement and the Terms of Service, the provisions of this Agreement shall prevail. The terms of this Agreement will apply to all orders submitted to TSTC and shall supersede any additional terms that may be incorporated in a purchase order form or any other Customer-generated form. Any such Customer terms shall be null and void.

TSTC - SAAS AGREEMENT

EXHIBIT A - SERVICE LEVEL AGREEMENT

This Service Level Agreement (“SLA”) is incorporated into the TSTC - SaaS Agreement, and made part of it.  Terms not defined in this SLA have definitions set out in the Agreement.  The remedies set out in this SLA are the Customer’s sole and exclusive remedy for issues covered by the SLA.  TSTC may modify this SLA with prior notice to Customer.

  • Free Tier
    • Support Channels: Online support resources and form
    • Response Times: No guaranteed times
    • Service Level Commitments: May modify, suspend, or terminate Services at any time without prior notice
  • Pro Tier
    • Support Channels: Online support resources and form
    • Response Times: No guaranteed times
    • Service Level Commitments: May modify, suspend, or terminate Services at any time without prior notice
  • Team Tier
    • Support Channels: Online support resources and form
    • Response Times: No guaranteed times
    • Service Level Commitments: May modify, suspend, or terminate Services at any time without prior notice
  • Enterprise Tier
    • Support Channels: Direct support via email and video conferencing, additional documentation, onboarding support, expert services
    • Response Times: As defined within respective Enterprise Tier SLA
    • Service Level Commitments: Separate SLA as part of individual Enterprise agreement, detailing support channels, response times, and commitments

Support Hours: Customers will designate a single support contact who will handle all support inquiries. Support requests should be directed to support@skillsengine.com or the phone number listed on the Order Form. TSTC responds to support questions from 9 am to 5 pm (Central) Monday through Friday, excluding TSTC-observed holidays and weekends ("Normal Business Hours"). TSTC will address service requests and correct documented or reproducible errors or provide a workaround according to the severity level assigned by TSTC during Normal Business Hours. Correction or workaround requirements will be met either by resolving the issue within the specified time or by continuously working on the issue until it is resolved. 

  • Severity 1 Error
    • Description: Causes a Service to cease operating or significantly impacts its functionality; poses a risk of data loss or corruption.
    • Response Time: Respond within 1 business day
    • Resolution Time: Correct or provide a workaround within 3 business days
  • Severity 2 Error
    • Description: Impairs a significant function of a Service, may cause data damage, or materially impacts Customer’s business operations.
    • Response Time: Respond within 1 business day
    • Resolution Time: Correct or provide a workaround within 5 business days
  • Severity 3 Error
    • Description: Causes a minor function impairment that affects Customer’s business operations.
    • Response Time: Respond within 1 business day
    • Resolution Time: Correct or provide a workaround within the next two releases

As used herein, a “workaround” means a temporary patch, fix, or bypass provided by TSTC in order to correct an error temporarily; provided, however, that: (i) the functionality, compatibility, or use of a Service is not adversely affected; and (ii) the workaround is not unduly burdensome to Customer and its Named Users. Notwithstanding the availability of a workaround, TSTC will continue to work to fix the error during Normal Business Houses and, in any event, provide Customer with the applicable permanent correction within: (i) ten (10) business days for a Severity 1 or 2 Error; or (ii) within next two releases for a Severity 3 Error; provided that TSTC agrees that the minor function is commercially reasonable to correct in the next releases for all customers, including Customer.

Maintenance and Technical Standards: TSTC will maintain the accessibility of the Subscription Services via the Site or an API to the Site, adhering to industry standards for capacity and performance. TSTC assumes a stable Internet connection for measurements, made randomly throughout the day. Upon request, TSTC will provide minimum recommended and technical equipment standards for optimal performance. TSTC is not liable for damage or loss due to causes beyond its control, including, but not limited to, equipment or communication failures, general Internet inoperability, unauthorized access, theft, operator error, severe weather, and labor problems.

Service Availability: TSTC aims to maintain access to the Services 24/7, with an availability standard of 99% per calendar month, excluding standard exceptions (scheduled maintenance, technical issues, force majeure, and issues with non-TSTC hardware or Customer interfaces). If availability falls below 99%, Customer may request a report and, if confirmed, receive a credit equal to 10% of the monthly fee. Requests must be made within 30 days of the end of the month in question. This is the Customer’s sole remedy for availability breaches.

Suspension of Service: TSTC may suspend access to the Services if Customer violates the Agreement or if the Customer App or Site negatively impacts Service performance. TSTC may enforce this through automated or manual actions, including disabling access, restricting functionality, requiring data deletion, or other appropriate measures, with or without prior notice to Customer.