Last Modified: December 16, 2024
Heron Skill Systems Inc. (SkillGrader)
By accessing, using, or otherwise interacting with our software, applications, websites, or services (collectively, the "Services"), you agree to be bound by the terms and conditions outlined below ("Terms"). If you do not agree to these Terms, you may not access or use the Services. Your continued use of the Services constitutes your acceptance of any updates or modifications to these Terms.
In the event of any conflict between these Terms and the terms of a separate, signed agreement between you and Provider, the terms of the signed agreement shall govern and take precedence. These Terms will apply only to the extent they do not conflict with the provisions of the signed agreement.
1. Definitions
1.1 In this Agreement:
"Access Credentials" means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API;
"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
"AI Systems" means machine learning and other artificial intelligence systems, tools, applications, algorithms and/or models;
"API" means the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer;
"Business Day" means any weekday other than a bank or public holiday in British Columbia, Canada;
"Business Hours" means the hours of 09:00 to 17:00 Pacific Time Zone (PT) North America on a Business Day;
"Charges" means: (a) the charges and other payable amounts specified in Section 2 of Schedule 1 (Hosted Services Particulars) and elsewhere in this Agreement; and (b) such charges and payable amounts as may be agreed in writing by the parties from time to time;
"Customer Confidential Information" means: (a) any information disclosed by or on behalf of the Customer to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as “confidential”; and (b) the Customer Data, except as taken in aggregate without identifying information, for statistical purposes;
"Customer Data" means all data, forms and user information: uploaded to or stored on the Platform by the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Customer using the Hosted Services (but excluding usage data relating to the Platform and Hosted Services, and excluding server log files);
"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement;
"Data Protection Laws" means the EU GDPR, Canadian PIPEDA, and other similar applicable regulations. For clarity, the Provider acts as a data processor as variously described by these laws;
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Effective Date" means the date on which Customer begins use of Services;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (which may include failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means SkillGrader, as specified in the Hosted Services Specification and as updated by the Provider from time to time, subject to the restrictions set out in this Agreement;
"Hosted Services Defect" means a defect, error or bug in the Platform resulting solely from an error or omission on behalf of the Provider, and having a material adverse effect on the functionality or performance of the Hosted Services;
"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in Section 1 of Schedule 1 (Hosted Services Particulars) and in the Documentation;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (including copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, and rights in designs);
"Mobile App" means the mobile application known as SkillGrader (or other names as may be used from time to time) that is made available by the Provider through the Google Play Store, the Apple App Store or by other means;
"Personal Data" means personal data under any of the Data Protection Laws;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Schedule" means any schedule attached to the main body of this Agreement;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services;
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Google Chrome or Apple Safari;
"Term" means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2; and
"User Interface" means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.
2.1 This Agreement shall come into force upon the Effective Date.
2.2 This Agreement shall continue in force until terminated in accordance with Clause 18 or any other provision of this Agreement.
3.1 The Provider shall provide to the Customer the Access Credentials necessary to enable the Customer to access and use the Hosted Services.
3.2 The Provider hereby grants to the Customer a non-exclusive license to use the Hosted Services by means of the User Interface, and the API and the Mobile App for the internal business purposes of the Customer in accordance with the Documentation during the Term.
3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:
(a) the User Interface may only be used through a Supported Web Browser or the Mobile App;
(b) the User Interface may only be used by the officers, employees, agents and subcontractors of the Customer;
(c) the User Interface may only be used by the named users who hold user accounts in the system. For clarity, each user account is for the sole use of the named user, and may not be shared or transferred; and
(d) the API may only be used by an application or applications approved by the Provider in writing and controlled by the Customer.
3.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not knowingly permit any unauthorized person or application to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not make any alteration to the Platform; and
(e) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services.
3.5 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorized person or application may gain access to the Hosted Services by means of the Access Credentials.
3.6 The Provider shall use commercially reasonable endeavors to maintain the availability of the Hosted Services to the Customer, but does not guarantee 100% availability.
3.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following non-exclusive list of examples shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer's computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance reasonably carried out by the Provider, including in accordance with this Agreement.
3.8 The Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer by means of the Access Credentials comply with Schedule 2 (Acceptable Use Policy).
3.9 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
3.10 The Customer must not use the Hosted Services in any way that uses excessive Platform resources or is likely to cause a degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to the Provider’s customers generally.
3.11 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.12 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) respecting the Hosted Services or to reverse-engineer or de-compile the Platform, either during or after the Term.
3.13 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 10 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
4.1 The Provider may from time to time suspend the Hosted Services for the purposes of scheduled or emergency maintenance to the Platform.
4.2 The Provider shall, where practicable, give to the Customer prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services.
5.1 The Provider shall provide the Support Services to the Customer during the Term.
5.2 The Provider shall make available to the Customer a helpdesk.
5.3 The Customer may use the helpdesk for the purposes of reasonably requesting and, where applicable, receiving the Support Services.
5.4 The Provider shall use commercially reasonable endeavors to respond promptly to all requests for Support Services made by the Customer through the helpdesk.
6.1 The Customer hereby grants to the Provider a non-exclusive, worldwide license to copy, store, process and transmit the Customer Data to the extent reasonably required for the performance of the obligations of the Provider under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers strictly for this purpose and subject to any express restrictions elsewhere in this Agreement.
6.2 The Customer hereby grants to the Provider a non-exclusive license to use the Customer Data for the purposes of benchmarking industry-wide data, or of creating, generating, training, testing and verifying the AI Systems of the Provider, provided that such use must not involve the processing of any Customer Personal Data nor identify the Customer in any way. To the extent that this Customer Data is incorporated into such benchmarking or AI Systems, the Customer also grants to the Provider a non-exclusive license to use the Customer Data as part of the relevant benchmarking or AI Systems.
6.3 The Customer hereby grants to the Provider a non-exclusive license to use the Customer Data to create aggregated datasets of industry data, provided that those aggregated datasets must not incorporate any Customer Personal Data, any other Personal Data supplied or made available by the Customer to the Provider, or any information contained in or derived from the Customer Data that identifies the Customer or that identifies any other organization, business or person (legal or natural).
6.4 The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation in any applicable jurisdiction and under any applicable law.
6.5 The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall, during the Term, retain and securely store each such copy for a minimum period of 30 days.
7.1 The parties acknowledge and agree that the use of the Mobile App, the parties' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to the terms and conditions or this Agreement, as well as to any terms and conditions separately applying to the use of the Mobile App.
8.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
9.1 The Customer shall pay the Charges to the Provider in accordance with Schedule 1 (Hosted Services Particulars), Section 2 (Financial Provisions) of this Agreement.
9.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 9.2.
9.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, exclusive of any applicable taxes, which will be added to those amounts and payable by the Customer to the Provider.
10.1 The Provider shall issue invoices for the Charges to the Customer in advance of the period to which they relate.
10.2 The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 10, provided that the Charges must in all cases be paid before the commencement of the period to which they relate.
11.1 The Provider shall:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care; and
(d) act in good faith at all times in relation to the Customer Confidential Information.
11.2 Notwithstanding Clause 11.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
11.3 This Clause 11 imposes no obligations upon the Provider with respect to:
(a) Customer Confidential Information that is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) Customer Confidential Information that is or becomes publicly known through no act or default of the Provider;
(c) Customer Confidential Information that is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality; or
(d) information that is independently developed by the Provider without reliance upon or use of any Customer Confidential Information.
11.4 The restrictions in this Clause 11 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, or by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognized stock exchange. If the Provider makes a disclosure to which this Clause 11.4 applies then, to the extent permitted by applicable law, the Provider shall promptly notify the Customer of the fact of the disclosure, the identity of the disclosee, and the Customer Confidential Information disclosed.
11.5 The provisions of this Clause 11 shall continue in force for 10 years following the termination of this Agreement.
12.1 The Provider shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
12.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
12.3 The Customer shall only supply to the Provider in each case under or in relation to this Agreement:
(a) the Personal Data of data subjects falling within the categories specified in Section 1 of Schedule 3 (Data processing Information) or such other categories as may be agreed by the parties in writing; and
(b) Personal Data of the types specified in Section 2 of Schedule 3 (Data Processing Information) or such other types as may be agreed by the parties in writing).
12.4 The Provider shall only process the Customer Personal Data for the purposes specified in Section 3 of Schedule 3 (Data Processing Information).
12.5 The Customer hereby authorizes the Provider to make the following transfers of Customer Personal Data:
(a) the Provider may transfer the Customer Personal Data internally to its own employees, offices and facilities, provided that such transfers must be protected by appropriate safeguards;
(b) the Provider may transfer the Customer Personal Data to its third party processors in the jurisdictions identified in Section 5 of Schedule 3 (Data Processing Information) and may permit its third party processors to make such transfers, provided that such transfers must be protected by any appropriate safeguards identified therein; and
(c) the Provider may transfer the Customer Personal Data to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.
12.6 Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information.
12.7 The Provider shall ensure that persons authorized to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
12.8 The Provider shall implement appropriate technical and organizational measures to ensure an appropriate level of security for the Customer Personal Data.
12.9 The Provider shall, taking into account the nature of the processing, take commercially reasonable technical and organizational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
12.10 The Provider shall use commercially reasonable endeavors to assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 12.10.
12.11 The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay.
12.12 Upon reasonable request by the Customer, the Provider shall make available to the Customer all information reasonably necessary to demonstrate the compliance of the Provider with its obligations under this Clause 12. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 12.12.
12.13 The Provider shall delete all of the Customer Personal Data from live application servers after the provision of Services, save to the extent that applicable law requires storage of the relevant Personal Data. Historical backups of Customer Personal Data will be purged in accordance with Provider data retention policies.
12.14 The Provider shall allow for and reasonably contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider's processing of Customer Personal Data with the Data Protection Laws and this Clause 12. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 12.14, provided that no such charges shall be levied where the request to perform the work arises out of any breach by the Provider of this Agreement or any security breach affecting the systems of the Provider.
12.15 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall promptly use their commercially reasonable endeavors to negotiate and agree to such variations to this Agreement as may be necessary to remedy such non-compliance.
13.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and
c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
13.2 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, applicable statutes or regulations.
13.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe on applicable Intellectual Property Rights.
13.4 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Hosted Services in accordance with this Agreement.
13.5 The Customer warrants to the Provider that:
(a) the Customer has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement; and
(b) the Customer will comply with all applicable legal and regulatory requirements applying to the exercise of the Customer’s rights and the fulfilment of the Customer’s obligations under this Agreement.
13.6 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
14.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
14.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
14.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems expressly supported by the Provider; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
14.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
15.1 General Limitation: Neither party will be liable to the other party for anylosses, damages, or expenses arising out of or in connection with this Agreement, regardless of the form of action (whether in contract, tort, including negligence, orotherwise), except as expressly provided in Section 15.2 below.
15.2 Exceptions to Limitation: The limitation of liability in Section 15.1 does not apply to: (a) Willful Misconduct: Losses arising from a party's willful misconduct.(b) Fraud or Illegal Activity: Losses arising from a party's fraud, fraudulent misrepresentation, or other illegal activities. (c) Breach of Confidentiality: Losses arising from a party's wilful breach of any confidentiality obligations under this Agreement. (d) Intellectual Property Infringement: Losses arising from a party's infringement or misappropriation of the other party's intellectual property rights.
15.3 Examples of Excluded Liability: For clarity, and without limiting the generality of Section 15.1, neither party will be liable to the other for: (a) Any loss of profits, anticipated savings, revenue, or income. (b) Any loss of use or production. (c) Anyloss of business, contracts, or opportunities. (d) Any loss or corruption of data, databases, or software. (e) Any special, indirect, or consequential loss or damage.(f) Any losses arising out of a Force Majeure Event.
15.4 The aggregate liability of each party to the other party under this Agreementshall not exceed the total amount paid and payable by the Customer to the Providerunder this Agreement in the 12-month period preceding the commencement of theevent or events instigating such liability.)
16.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement, that obligation will be suspended for the duration of the Force Majeure Event.
16.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
16.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
17.1 Either party may elect to terminate this Agreement by giving to the other party at least 30 days' written notice of termination. In the event of such termination by Customer where a prepayment has been made from Customer to Provider, and which, due to Customer’s elective termination, covers a period which extends beyond termination date, it is acknowledged that Provider may have incurred expenses in anticipation of future Customer costs, and therefore Provider is under no obligation to refund any prepayments made.
17.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
17.3 Subject to applicable law, either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement); or
(d) if that other party is an individual:
(i) that other party becomes incapable of managing his or her own affairs as a result of illness or incapacity; or
(ii) that other party is the subject of a bankruptcy petition or order, and if that other party dies then this Agreement shall automatically terminate.
18.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.12, 6.2, 6.3, 7, 10.2, 11, 12, 16, 18, 20 and 21.
18.2 Except to the extent expressly provided otherwise in this Agreement, the termination of this Agreement shall not affect the accrued rights of either party.
18.3 Within 30 days following the termination of this Agreement for any reason, the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement without prejudice to the parties' other legal rights.
19.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 19.2 and Section 3 of Schedule 1 (Hosted Services Particulars)):
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting; or
(c) sent by email, in which case the notice shall be deemed to be received 2 Business Days following sending, provided that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
19.2 The Provider's and the Customer’s contact details for notices under this Clause 19 are as listed in Schedule 1 (Hosted Services Particulars), Section 3 (Contractual Notices).
19.3 The addressee and contact details set out in Section 3 of Schedule 1 (Hosted Services Particulars) may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 19.
20.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
20.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
20.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
20.4 This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
20.5 Subject to Clause 15.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
20.6 This Agreement shall be governed by and construed in accordance with the laws of British Columbia, Canada.
20.7 The courts of Vancouver, British Columbia, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
21.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
21.2 The Clause headings do not affect the interpretation of this Agreement.
21.3 References in this Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
21.4 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
21.5 In the interpretation of this Agreement no rules of construction or interpretation shall apply to the disadvantage of one party on the basis that that party put forward or drafted this Agreement or any part thereof.
SkillGrader is an app (tablet and smartphone) and web application designed to facilitate the objective evaluation of employee skill performance across industries. The platform enables organizations to assess both individual and team skill performances during observable activities such as on-the-job performance, training sessions, simulation exercises, and drills.
Key features of SkillGrader include:
• Assessment Forms: SkillGrader delivers assessments as structured, task specific digital forms that outline key performance indicators for the skills or procedures being evaluated.
• Real-Time Assessments: Observers can efficiently record actions as they occur, without the need for deep specialized knowledge, by checking off observed actions within the app.
• Immediate Reporting: Upon completion of an assessment, SkillGrader utilizes an algorithm to instantly generate performance scores for both overall team performance and individual contributions. The platform also provides insights into critical actions missed, strengths, and skill gaps, and allows for the recording of debrief and mentoring notes for future reference.
• Dashboard Analytics: SkillGrader aggregates assessment results into a central database, enabling organizations to analyze trends, identify skill gaps, and measure adherence to company standards.
By implementing SkillGrader, organizations can streamline the assessment process, reduce subjectivity, and gain actionable insights to support workforce development and training initiatives.
Subscription Fees:
As per separately agreed in writing prior to the use of the Services. In the absence of such prior agreement, the Subscription Fees will be determined at the sole discretion of Provider.
Hourly Services Rates:
As per separately agreed in writing prior to the use of the Services. In the absence of such prior agreement, the Subscription Fees will be determined at the sole discretion of Provider.
For Provider:
By email:
Murray Goldberg, Murray@SkillGrader.com
By Post or Courier:
Attn: Murray Goldberg, Heron Skill Systems Inc.
1090 West Georgia Street, Suite 600
Vancouver BC, V6E 3V7
Canada
For Customer: As per separately agreed in writing prior to the use of the Services. In the absence of such a prior agreement, it is agreed that notices for Customer are considered valid if they are sent to the publicly available contact email address or corporate registered offices of Customer as obtained by Provider via a reasonable search of publicly available records.
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the "Services" (as defined in the Agreement to which this Schedule 2 as appended); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
1.2 References in this Policy to "you" are to Customer as a whole and Customer’s users (and "your" should be construed accordingly); and references in this Policy to "us" are to Provider (and "we" and "our" should be construed accordingly).
1.3 By using the Services, you expressly agree to the rules set out in this Policy.
1.4 You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services: (a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or (b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
2.4 You must not use the Services for any purpose other than for its intended purpose of skill assessment, recording and analysis.
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorized by you, must not:
(a) be libelous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) constitute a breach of official secrets legislation; or
(j) constitute a breach of any contractual obligation owed to any person.
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question.
4.2 Content must not depict violence (including violence against humans and animals), self-harm or suicide in an explicit, graphic or gratuitous manner.
4.3 Content must not encourage, promote, glamourize or glorify violence (including violence against humans and animals), self-harm or suicide.
4.4 Content must not be pornographic.
5.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behavior on the internet.
5.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
5.3 Content must not be reasonably expected to cause annoyance, inconvenience or needless anxiety.
5.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
5.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
6.1 You must not use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
6.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
6.3 You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, "get rich quick" schemes or similar letters, schemes or programs.
6.4 You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
7.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
8.1 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
8.2 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
• Users, including administrative, assessors and trainees
• Name, first and last
• Customer-generated user ID such as employee ID
• List of assessments delivered, taken, and the results of each
• The purpose is to allow assessors to assess the performance of trainee skills, and for authorized users to view performance data for individuals and in aggregate.
Data Encryption
• We encrypt PII at rest and in transit.
Access Controls
• We limit access to PII based on the principle of least privilege.
Multi-Factor Authentication (MFA)
• We implement MFA for key systems.
Data Minimization
• We collect only the PII necessary for specific business purposes and delete it when no longer needed.
Regular Security Audits and Vulnerability Assessments
• We conduct periodic security audits, vulnerability assessments, and penetration testing.
Employee Training
• We require all employees to take annual training and testing on data privacy and security best practices.
Network Security Measures
• We protect networks using firewalls, intrusion detection systems (IDS), intrusion prevention systems (IPS), and secure configurations.
• N/A
If you have any questions about these Terms, please contact us at support@skillgrader.com.
Heron Skill Systems Inc.
301B-1551 Johnston St
Vancouver, BC
V6H 3R9
Canada
