Skillworx Africa Terms of Use

Version: August 2019

By clicking registering and creating a Skillworx Africa account, or by accessing or otherwise using the Skillworx Africa (Pty) Ltd platform (“Skillworx Africa”), you agree to be bound by these Skillworx Africa Terms of Use (“Terms of Use”) as of the first day you create your Skillworx Africa account or otherwise access Skillworx Africa (“Registration Date”). Note: If you are an employee at an organisation or other legal entity, then by registering and creating a Skillworx Africa account or by accessing or using Skillworx Africa, then you accept these Terms of Use on behalf of that entity and you represent and warrant that you have the necessary authority to do so. You must be at least eighteen (18) years old to register a Skillworx Africa account and use Skillworx Africa; if you are not at least eighteen (18) years old, please do not use Skillworx Africa or register an account.

1.  The Skillworx Africa Platform

By creating an Skillworx Africa account, you will be able to purchase and administer assessments offered by Assessment & People Services (Skillworx Africa) (the “Company”), including (without limitation), the Townsend Personality Assessment (TPQ®), Townsend Emotional Intelligence Assessment (TEQ-i®), (“Assessments”), Leadership Style Report (LSR®), 360 Leadership Assessment (T360®), Townsend Ability Battery (TAB®), Food Safety Culture Assessment (FSCQ®), Employee Engagement Survey (EES®), Interpersonal Communication Indicator (ICI®), and any other assessment that is made available from time to time in the Skillworx Africa system and to generate reports (“Reports”) for those Assessments for your respondents (“Respondents”). Skillworx Africa® accounts are subscription-based (as detailed below), and each Skillworx Africa account may only be used by a single, named user (“User”).

2.  Fees and Payment Terms

In order to access Skillworx Africa, you must register each Skillworx Africa account you create. Registration is free. If you comply with all the access requirements, the designated Skillworx Africa administrator will grant you access to Skillworx Africa for an indefinite period provided, the account remains active (i.e., assessments are being purchased (see Minimum Purchases) and the registered user is complying with all Terms of Use. The Company has the unilateral right to grant access or cancel access at its own discretion after providing the registered user with reasonable notice. If you will be using multiple Skillworx Africa accounts, each account has to have a unique registered user that complies with all the registration criteria for each Skillworx Africa account.

While access to Skillworx Africa is free, should you choose to administer one or more Assessments to generate Reports, you must pay the administration fees (“Administration Fees”) associated with those Reports, at the rates indicated I the Skillworx Africa system. Administration Fees vary based on the type of Report.

You are responsible for all applicable your home country state and local taxes, duties, fees, charges, surcharges, or other similar exactions, (whether such exactions are imposed directly upon you or upon the Company) (“Taxes”) imposed on your Skillworx Africa transactions. “Taxes” do not include any taxes that are imposed on or measured by the net income of the Company. If you are tax-exempt, you may provide duly-executed documentation evidencing your tax-exempt status to the Company for consideration. If the documentation is accepted, the Company shall exempt you from Taxes on a going-forward basis, provided that you keep all tax exemption documentation accurate and current.

3.  Skillworx Africa Data & Privacy

Your use of Skillworx Africa involves several types of data, including (without limitation): your personal information, your Respondents’ personal information, your Respondents’ responses to Assessments (“Item Responses”), and your Respondents’ responses to optional research and demographic questions (“Demographics”). All personal information (both yours and that of your Respondents) will be used in accordance with the Company’s Privacy Policy, as amended from time to time, and a copy of which is made available on Skillworx Africa. The Company will use commercially reasonable efforts to comply with applicable laws governing the use of personal information, and the Company will implement commercially reasonable safeguards to protect the confidentiality, integrity, and availability of personal information you provide to the Company. As between you and the Company with regard to your Skillworx Africa account data, you are the data controller and the Company is the data processor. If you provide personal information to the Company, the Company will process that personal information only on your documented instructions, unless required to do otherwise by applicable law. The Company may engage additional sub-processors to provide the services that are the subject of these Terms of Use, as set forth in the Company’s Privacy Policy, and you agree to the Company’s use of such additional sub-processors. Those sub-processors will be contractually bound to abide by the same or similar privacy and security principles set forth in these Terms of Use and the Company’s Privacy Policy. Your use of Skillworx Africa requires the transmission of your personal information and your Respondents’ personal information to the Company in South Africa. If you are using Skillworx Africa outside South Africa, by agreeing to these Terms of Use you acknowledge and agree to such transfer. Notwithstanding the foregoing, the Company reserves the right to alter or remove Respondents’ personal information if required to do so by applicable law. If a data subject exercises a right afforded to him/her under applicable law against you as the data controller, the Company will reasonably cooperate with you and provide reasonable assistance and information to facilitate your ability to respond to such a request.

The Company will store data associated with your Skillworx Africa account during your period of approved access and any applicable renewal periods. If your Access Period is terminated, the Company will store your Skillworx Africa account data for ninety (90) days after such termination to allow you the opportunity to reapply for access. If your Skillworx Africa account is not reinstated within that ninety (90) day period, the Company will anonymise your Skillworx Africa account and its associated data and you will permanently lose access to that Skillworx Africa account and its associated data. At all times, both during your Access Period and thereafter, the Company reserves the right to retain all Item Responses, Demographics, and other data generated via Skillworx Africa in non-personally identifiable format for the Company’s research and product development purposes. If your Respondents have opted in to be contacted for future research opportunities, then Demographics information may be kept in personally identifiable format even after your Skillworx Africa Access Period is terminated.

You may not administer Assessments to Respondents who are children. “Children” means those individuals who are (ii) in the Republic of South Africa and under the age of 18, the United States and under age 13; (iii) in the European Union and under age 16; or (iii) in other countries or territories and under the minimum age of threshold to be considered an adult.

4.  Your Responsibilities

The Company makes Skillworx Africa available on a ‘one-user-per-account’ basis. You may not share your account or your Skillworx Africa username and password combination with anyone else. You shall use your best efforts to prevent unauthorised access to or use of your Skillworx Africa account and shall notify the Company immediately upon discovery of any unauthorised access or use. You shall not sell, resell, rent, or lease your access to Skillworx Africa or offer Skillworx Africa Assessment scoring services on a “service bureau” basis. You shall not use Skillworx Africa to store or transmit any infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights. You shall not use Skillworx Africa to store or transmit malicious code or software that will impair the functionality or availability of Skillworx Africa or otherwise access Skillworx Africa in a manner not specifically authorised by these Terms of Use. You shall not interfere with or disrupt the performance of Skillworx Africa or attempt to gain unauthorised access to Skillworx Africa. You shall not contract with parties other than the Company for the scoring of any instruments made available on Skillworx Africa. You shall not copy, frame, or mirror any content or functionality made available on Skillworx Africa. You shall not reverse-engineer Skillworx Africa or any of the Assessments or Reports on Skillworx Africa or the scoring thereto. You shall not access Skillworx Africa in order to build a competitive product or service or to copy any features, functions, scoring, or content of Skillworx Africa. You shall not remove any copyright, patent, trademark, design right, trade secret, or any other proprietary rights notices from Skillworx Africa products. You shall not make use of any the Company trademarks in any domain names.

5.  Restricted Instruments

Certain of the Company’s Assessments are considered “Restricted Instruments” and have additional requirements. You may only purchase and administer Restricted Instruments if you have been authorised and certified by the Company (or one of the Company’s partner certification organisations) as eligible to purchase and administer those Restricted Instruments. For each administration of a Restricted Instrument, you acknowledge and agree that you will provide real-time feedback and interpretation to each Respondent who completes a Restricted Instrument you have administered, which feedback may be delivered in person, over the phone, or through contemporaneous text or video chat. All Debrief Sessions must be more comprehensive than simply providing or passing along a Respondent’s Report and must allow the Respondent to ask questions and receive feedback in a non-automated format. You shall not, under any circumstances, use Skillworx Africa to simply provide third parties with administrations of Restricted Instruments without providing the necessary Debrief Sessions.

6.  Support, Downtime & Availability

If you need assistance with creating or using your Skillworx Africa account, the Company will provide you with limited, basic support (as determined by the Company in its sole discretion). Please contact support@skillworxafrica.com or your Company representative for assistance.

The Company will use commercially reasonable efforts to make Skillworx Africa available at all times except for planned downtime, maintenance, and unavailability caused by circumstances beyond the Company’s reasonable control, including (without limitation): acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, equipment malfunctions, power failures or Internet service provider failures. Notwithstanding any of the foregoing, you have no expectation regarding the availability of Skillworx Africa. You agree that your Skillworx Africa purchases are not contingent upon any specific level of availability, or the delivery of any additional functionality or any additional support from the Company.

The Company reserves the right to take any Skillworx Africa products out of print at any time without notice to you. If you have pre-purchased any materials from the Company (for example, without limitation: a pre-purchased assessment administration) and those pre-purchased materials are taken out of print or otherwise made unavailable by the Company, then the Company will notify you of your options with respect to those pre-purchased products, which options may include (without limitation): converting pre-purchased administrations to a substitute or replacement assessment administration within a defined period; or converting the value of those pre-purchased assessments into credit for use on Skillworx Africa within a defined period. If the Company provides such options to you and you do not exercise them before the time specified by the Company, then you acknowledge that you will forfeit the value of any such pre-purchased materials. The Company may choose to make Skillworx Africa unavailable either temporarily or permanently by providing written notice to you on Skillworx Africa.

7.  Intellectual Property

Your use of Skillworx Africa involves the Company’s intellectual property, and your use of that intellectual property is governed by these Terms of Use. You acknowledge and agree that the Company is the sole and exclusive owner of Skillworx Africa itself, as well as all Skillworx Africa products and other content made available on Skillworx Africa (and their accompanying intellectual property rights). The Company reserves all rights, title, and interest in and to Skillworx Africa and the Skillworx Africa products and other content listed on Skillworx Africa, including all intellectual property rights. Your limited license to use Skillworx Africa products is only as expressly set forth in these Terms of Use.

Skillworx Africa provides you with the ability to electronically deliver certain Skillworx Africa products to yourself or to other individuals. If you purchase a product that is intended for you to deliver that product to yourself via the Skillworx Africa platform (for example, without limitation, a booklet), you agree not to share that product with any other party and to limit your use of that product to your personal use only. If you purchase a product that is intended for you to deliver that product to a Respondent via the Skillworx Africa platform (for example, without limitation, a Report), you acknowledge and agree that any such products are licensed only for that Respondent’s personal, non-commercial use. You agree not to infringe any of the Company’s intellectual property rights in any Skillworx Africa products and you agree to make your Respondents aware of the limitations and restrictions on their use of materials delivered to them. This limited license that the Company grants to you (or your Respondents, as applicable) to electronically access and view such products is non-exclusive, non-transferable, and non-sub-licensable. You may not alter or modify any Skillworx Africa products, or reproduce or distribute Skillworx Africa products in any manner not specifically contemplated by these Terms of Use. You may not rent, lease, resell, redistribute for profit, or otherwise commercially exploit any Skillworx Africa Products, and you may not prepare derivative works based on any Skillworx Africa products.

8.  Term & Termination

Your use of Skillworx Africa shall be governed by these Terms of Use starting on your Registration Date and through the duration of your Usage Period (as may be determined by the Terms of Use).

You may stop your Skillworx Africa service at any time. If the Company determines, in its sole discretion, that you have materially breached these Terms of Use, then the Company may terminate your Skillworx Africa subscription by providing written notice to you. Such termination by the Company shall be effective as of the date the Company provides such notice.

If your access terminates or expires for any reason, then: (i) you shall lose all access to Skillworx Africa; (ii) you shall immediately stop making use of the Company’s intellectual property; and (iii) you will not receive any refunds for any pre-purchased assessment administrations that you have not used prior to such termination or expiration, nor for any unused portion of your Skillworx Africa subscription period.

9.  Miscellaneous

You agree to defend and indemnify the Company, its officers, directors, employees, and assigns against any claims, damages, losses, costs, or liabilities of any kind (including reasonable attorneys’ fees) arising out of or in connection with any actual or alleged breach of these Terms of Use, or in connection with any third-party suits or claims alleging matters which, if true, would constitute a breach of these Terms of Use.

IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN NO EVENT SHALL THE COMPANY’S LIABILITY, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY YOU UNDER THIS AGREEMENT OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY YOU IN THE 12 MONTHS PRECEDING THE INCIDENT.

SKILLWORX AFRICA (PTY) LTD PRODUCTS AND SERVICES ARE PROVIDED “AS-IS.” THE COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE PRODUCTS OR SERVICES, INCLUDING ANY REPRESENTATION THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE

These Terms of Use do not create a partnership, franchise, joint venture, fiduciary, or employment relationship between the parties; the parties are independent contractors. Except as otherwise specified in these Terms of Use, all notices, permissions, and approvals under this Agreement shall be in writing. Notices to the Company shall be addressed to the attention of its General Counsel. All notices to you shall be addressed to the most recent contact information associated with your Skillworx Africa account. No failure or delay by the Company in exercising any right under these Terms of Use shall constitute a waiver of that right. Other than as expressly state herein, the Company’s remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of these Terms of Use is held by a court of competent jurisdiction to be contrary to law, that provision shall be severed from these Terms of Use, and the remaining provisions of these Terms of use shall remain in effect. You may not assign any of your rights or obligations under these Terms of Use, whether by operation of law or otherwise, without the prior written consent of the Company. These Terms of use, and any disputes arising out of or related to these Terms of Use, shall be governed exclusively by the internal laws of South Africa, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. These Terms of Use constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Any provisions of these Terms of Use that by their nature would survive shall survive any termination or expiration of these Terms of Use or termination or expiration of your Skillworx Africa subscription. The Company may modify these Terms of Use at any time by providing written notice to you via Skillworx Africa.

Last updated on April, 2019