CUSTOMER TERMS OF SERVICE
Our Terms of Service govern the relationship with our customers. To make them easier to read, we’ve included some notes in blue throughout. Those aren’t part of the agreement itself, they’re instead there to draw your attention to some of the important terms.
These terms of service are a legal agreement between:
(1) You (‘Customer’ or ‘you’); and
(2) SKILLER WHALE LIMITED incorporated and registered in England and Wales with company number 11583344 whose registered office is at 71-75 Shelton Street, Covent Garden, London, England, WC2H 9JQ (‘Skiller Whale’, ‘we’ or ‘us’).
(A) Skiller Whale provides live team coaching and assessment services to in-house software development and tech teams.
(B) The parties have agreed that Skiller Whale shall supply its services to Customer on these Terms.
Definitions and interpretation
The important terminology of this agreement is defined in a glossary at the end. The Terms are important, so please read them and contact us if you have any questions or concerns about them.
- The definitions and rules of interpretation set out in Schedule 1 shall apply to these Terms.
- Each Order accepted by Skiller Whale shall constitute a new contract incorporating these Terms.
- Customer should read these terms carefully before using the Services.
Assessments and Coaching Plans
We’ll assess your team in the technologies of your choice, and produce coaching plans that we mutually agree on. But we won’t hold you to these plans. If you want to change them, we’ll be flexible to make sure they fit your needs.
- Skiller Whale may carry out assessments of one or more Team Members (‘Assessments’) in order to formulate Coaching Plans.
- Customer shall provide to Skiller Whale access to all information and documentation as necessary in order for Skiller Whale to carry out Assessments and formulate Coaching Plans.
- Customer may request to alter and amend the Coaching Plans as it sees fit. Skiller Whale will consider all of Customer’s alterations, but is not obliged to agree to them.
- Skiller Whale will not send any Assessments, or start delivering any Coaching Sessions until they have been approved by a Leader.
Commencement and Duration
- These Terms shall commence on the date an Order is accepted by Skiller Whale and shall continue until terminated in accordance with clause 14.
We try not to ask for much - but we do ask that you stick to these Terms, and pay your Subscription Fees when it’s due. And if there’s anything we need from you to provide our Services, then we ask you to help us out with that.
- Customer shall at all times:
- perform its obligations in accordance with these Terms.
- comply with any additional and specific obligations of Customer as specified in the Coaching Plan or by Skiller Whale from time to time.
- pay the Subscription Fees when they are due.
- make any information, documentation or materials accessible to Skiller Whale and Coaches as may be necessary for Skiller Whale and its Coaches to provide the Services.
- Customer shall at all times:
We will deliver the agreed-upon Coaching Sessions to your team with professionalism. We also ask that your team treats our Coaches, and other people they interact with on Skiller Whale, with courtesy and respect.
- Skiller Whale warrants that the Services shall be performed with reasonable care and skills.
- Customer acknowledges and agrees that:
- Coaching Sessions are provided purely for coaching purposes and are not a substitute for software development services or any other purposes.
- Coaching Plans are flexible and subject to change from time to time.
- Coaching Sessions may be recorded for training and quality assurances purposes.
- Skiller Whale cannot guarantee that the Services will achieve a particular result, meet Customer’s expectations or otherwise be fit for purpose.
- Copying and distributing Skiller Whale Materials is not permitted without the prior consent of Skiller Whale.
- Coaching Sessions may take longer than anticipated and may cost additional Credits. Similarly, elements of a Coaching Plan may require more Coaching Sessions than initially estimated.
- Skiller Whale will schedule dates and times of Coaching Sessions consistent with a Coaching Plan, or Additional Coaching Sessions. Scheduling will be flexible and will be done at the discretion of Skiller Whale. Proposed scheduling dates and times remain subject to change at any time.
- Customer is responsible for ensuring that its Team Members act in accordance with its obligations under these Terms and Customer shall be liable for the actions or omissions of its Team Members in relation to these Terms as if they were the actions or omissions of the Customer.
- Skiller Whale reserves the right to eject Team Members from Coaching Sessions who are (in Skiller Whale’s sole opinion) mistreating or harassing the Coach or any other participant, or being otherwise disruptive. Credits shall not be redeemable in this instance.
- Skiller Whale shall not be responsible for any loss howsoever arising to Customer for any reliance on any advice, recommendation or content provided to Team Members during the provision of Services.
- Skiller Whale shall not be liable for any delay or failure in providing the Services caused by:
- any fault or omission of Customer or any Team Members;
- use of the Services other than for the purpose for which they are intended; and
- A Force Majeure Event.
- Other than as set out in this clause 5 and subject to clause 11.1, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for a particular purpose or ability to achieve a particular result are excluded to the fullest extended allowed by applicable law.
- Customer acknowledges that this clause 5.1 does not apply to Free Services. Free Services are provided ‘as-is’ and without warranty to the maximum extent permitted by law.
Set-up and Registration
We try to work with every modern device and operating system within reason - but you’re responsible for checking whether we work with your setup.
- Prior to using the Services, Customer shall be responsible for ensuring that the technology used by Skiller Whale to provide the Services is compatible with Customer’s systems.
- Customer shall be responsible for ensuring that Team Members comply with the Set-up Instructions and Skiller Whale reserves the right to eject Team Members for a Coaching Session who have not completed Set-up Instructions prior to the Coaching Session. Credits attributable to such a Coaching Session shall not be redeemable.
- Use of and access to the Services will require registration by Team Member. Team Member is responsible for making sure their password and other account details are kept secure and confidential at all times.
Contract management and reporting
We’d like to have regular contact with Leaders on your team to make sure we’re meeting your needs as well as we can. We also like to collaborate on and publish case studies that report on the impact of our work with your team.
- Customer shall appoint one or more Leaders to act as the main points of contact in respect of all day-to-day matters relating to the supply of Services and these Terms.
- A Leader and representative of Skiller Whale shall meet or otherwise communicate at regular intervals to discuss progress being made in relation to the provision of Services and any other areas for improvement that may arise which, if agreed by Customer, may be included as Additional Coaching Sessions, modifications to Coaching Plans or additional Coaching Plans.
Your monthly subscription gets you credits which are spent on Assessments, Coaching Sessions and Examinations.
- Each calendar month, Customer shall pay the Subscription Fee in order to purchase Credits from Skiller Whale.
- All Subscription Fees are exclusive of VAT which shall be payable by Customer, if applicable, at the rate and in the manner prescribed by law.
- Subscription Fees shall be paid to Skiller Whale’s bank account by debit card or credit card payment or electronic funds transfer unless otherwise notified by Skiller Whale to Customer in writing.
- Credits can be spent by Leaders to book Assessments, Coaching Sessions and Examinations.
- Additional Coaching Sessions recommended by Skiller Whale from time to time will cost additional Credits, subject to the consent of Customer.
- Skiller Whale shall be entitled to increase the cost of Subscription Fees or Credits for any and all Services at any time by giving Customer one month’s prior written notice.
- Customer may at any time, request to increase or reduce the number of Credits they buy, or make one-off purchases of Credits. Skiller Whale may choose to provide a quote for such a request, or refuse it. The request will only take effect once the quote is accepted by Customer.
We don’t generally offer refunds, but you can cancel your subscription (see clause 14). One important thing to note is that if we get less than 24 hours’ notice when you cancel a Coaching Session, or tell us someone from your team will not attend, then we don’t refund the Credits. When people miss sessions without notice, we will automatically reschedule a replacement Coaching Session for them, which will result in more Credits spent.
- Subscription Fees are non-refundable.
- Skiller Whale reserves the right to cancel and reschedule a Coaching Session for any reason. Skiller Whale will contact Team Members prior to the start of that Coaching Session to inform them of cancellation and reschedule the Coaching Session for an alternative time and date.
- If Customer or Team Member cancels a Coaching Session with more than 24 hours’ notice prior to the start of the Coaching Session, or Team Members indicate that they will not attend, the Credits attributable to that Coaching Session, or the attendance of those Team Members, will not be allocated towards that Coaching Session.
- If Customer or Team Member cancels a Coaching Session with less than 24 hours’ notice prior to the start of the Coaching Session, or does not attend, Credits shall not be redeemable (unless cancellation is caused by a Force Majeure Event).
- Skiller Whale shall reschedule with Team Members who are unable to attend a scheduled Coaching Session, unless specifically instructed otherwise by Leaders. This may cost additional Credits.
We take data protection seriously.
- Each party shall comply with the applicable requirements of Data Protection Legislation.
- To the extent Skiller Whale acts as a processor for the purposes of Data Protection Legislation, Skiller Whale shall process personal data in connection with these Terms and on behalf of the Customer and shall:
- process personal data only on the documented written instructions of the Customer that are set out in these Terms or otherwise communicated by the Customer to Skiller Whale;
- ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected;
- ensure that all personnel who have access to personal data are obliged to keep the personal data confidential;
- not transfer any personal data outside the United Kingdom or the European Economic Area other than in accordance with Data Protection Legislation (but only if Customer makes personal information concerning residents of the United Kingdom or the European Economic Area available to Skiller Whale);
- assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with the Customer’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Customer without undue delay upon becoming aware of a personal data breach;
- at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of these Terms unless otherwise required by applicable law;
- to the extent required by Data Protection Legislation, maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of Skiller Whale, an instruction infringes the Data Protection Legislation.
- To the extent clause 10.3 applies,
- the Customer shall ensure that it has valid legal grounds for processing and appropriate fair processing notices in place to enable the lawful transfer of personal data to Skiller Whale for the duration and purposes of these Terms;
- the Customer hereby grants Skiller Whale a general authorisation to appoint third-party processors for the purpose of processing personal data on Skiller Whale’s behalf, provided that always Skiller Whale enters into written agreements incorporating terms substantially similar to those set out in clause 10.3. Where Skiller Whale appoints a new third-party processor after the commencement date of these Terms, Skiller Whale shall notify the Customer in writing before such appointment, thereby allowing the Customer to object to it.
- the subject matter of the processing shall be the performance of these Terms; the duration of processing shall be the duration of these Terms; the purpose of the processing shall be the delivery of the Services; the types of data subjects shall be the Customer’s representatives; and the categories of personal data shall be personal data the Customer or their representatives submit into the Services.
If we’re liable for anything, our liability is limited to the amount you’ve paid us in the prior year.
- Save for any liability that cannot be lawfully limited or excluded:
- Skiller Whale shall not be liable to Customer for any amount in excess of the Subscription Fees actually paid to Skiller Whale under these Terms during the twelve (12) months prior to the event giving rise to the claim.
- No representations, guarantees, conditions, warranties or other terms of any kind are given in respect of the Services, and all statutory warranties and conditions are excluded to the fullest extent possible.
- Customer shall indemnify Skiller Whale against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses) suffered or incurred by Skiller Whale arising out of or in connection with any infringement by Customer of Skiller Whale’s intellectual property rights.
- Save for any liability that cannot be lawfully limited or excluded:
- Each party undertakes that it shall keep all Confidential Information concerning the other party and its Affiliates confidential and that it shall not use or disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under these Terms.
- All Intellectual Property Rights in and to the Services (including all materials, content and code provided by Skiller Whale on the Website or prior to, during or after an Assessment, Coaching Session or Evaluation) belong to and remain vested in Skiller Whale. To the extent that Customer, its Affiliates or Team Members acquires any Intellectual Property in the Coaching Plan, Coaching Sessions or any other part of the Services, Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Skiller Whale. Customer shall execute all documents and do such things as Skiller Whale may consider necessary to give effect to this clause.
- No Intellectual Property Rights of Customer are transferred to Skiller Whale as a result of these Terms.
- Skiller Whale may use any feedback and suggestions for improvement relating to the Services provided by Customer and/or Team Member without charge or limitation (‘Feedback’). Customer hereby assigns (or shall procure the assignment) of all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Skiller Whale at the time Feedback is first provided to Skiller Whale.
- Customer, its Affiliates and Team Members shall not acquire in any way any title, right of ownership, or Intellectual Property Rights of whatever nature in the Services.
- Customer shall not use or access all or any part of the Services in order to build a product or service which competes with, or is intended to be used in place of, Skiller Whale.
- Skiller Whale can cite the customer as a beneficiary of the Services on any public materials, such as the Websites and in any other sales or promotional material. Customer hereby grants Skiller Whale a limited, revocable, non-exclusive, non-transferable, worldwide and royalty-free licence to use Customer’s name and trade mark in order to refer to the supply of the Services by Skiller Whale on its Websites and in Skiller Whale’s sales and promotional material.
- Skiller Whale may, at its discretion, offer to co-author a case study with Customer, which can be co-branded and would be published on the Websites.
- Skiller Whale may, at its sole discretion, suspend or terminate a Customer or Team Members access to the Services at any time if::
- the Customer or Team Member commits a material breach of these Terms and such breach is not remediable;
- the Customer or Team member commits a material breach of these Terms which is not remedied within seven days of receiving written notice of such breach; or
- the Customer or Team Member has failed to pay any amount due under these Terms on the due date and such amount remains unpaid within fourteen days after the other party has received notification that the payment is overdue.
- Skiller Whale may terminate the provision of Free Services at any time with or without notice.
- Customer may terminate its subscription to the Services at any time. Any remaining Credits that have not been used as of the date of termination will not be refundable.
- Skiller Whale may, at its sole discretion, suspend or terminate a Customer or Team Members access to the Services at any time if::
- Neither party shall assign, transfer, or subcontract, any of its rights and obligations under these Terms without the consent of the other party.
- These Terms constitute the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral. Each party acknowledges that it has not entered into these Terms in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in these Terms.
- The Customer acknowledges and agrees that Skiller Whale shall have the right to unilaterally vary these Terms, subject to providing the Customer with 30 days’ notice before such variation takes place (‘Notice Period’). If the Customer objects to the notified variation, the Customer shall be entitled to terminate these Terms during the Notice Period. If the Customer does not object to any variation during the Notice Period, the Customer shall be deemed to have agreed to the variation. Termination under this clause 15(c) shall not affect any Customer obligation to pay any amounts due under this Terms at the date of termination.
- A person who is not a party to these Terms shall not have any rights to enforce any of its provisions.
- These Terms and any dispute or claim arising out of, or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
- The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, these Terms, its subject matter or formation (including non-contractual disputes or claims).
Definitions and interpretation
In these Terms:
‘Additional Coaching Sessions’ means additional Coaching Sessions not identified in a Coaching Plan. ‘Affiliate’ means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity. ‘Assessment’ has the meaning given to it in clause 2.1 of these Terms. ‘Confidential Information’ means all information (whether in oral, written or electronic form) relating to a party’s business which may reasonably be considered to be confidential in nature including information relating to technology, know-how, intellectual property rights, assets, finances, strategy, products, customers, and fees. ‘Control’ means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of management of the company and ‘Controls’ and ‘Controlled’ shall be interpreted accordingly. ‘Credits’ means the credits used by Customer, Leaders and Team Members to book Assessments, Coaching Sessions, Additional Coaching Sessions and Examinations. ‘Data Protection Legislation’ means all applicable data protection and privacy legislation in force including the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (UK GDPR); the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder), the California Consumer Privacy Act of 2018 and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), in each case as amended from time to time. ‘Examination’ means the examination provided by Skiller Whale and sat by a Team Member in accordance with the Coaching Plan. ‘Feedback’ has the meaning given to it in clause 13.3. ‘Force Majeure Event’ means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under these Terms, including any matters relating to any delays or problems associated with any such networks or with the internet. ‘Free Service’ means any part of the Service identified as being provided on a trial basis or without charge (for the duration of the period during which it is provided on such basis) at Skiller Whale’s sole discretion. ‘Intellectual Property Rights’ means any and all copyright, neighbouring and related rights, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future; and
(e) wherever existing;
‘Leader’ means an employee or person engaged by Customer who oversees one or more Team Members. ‘Notice Period’ has the meaning given to it in clause 15(c). ‘Order’ means an order submitted by Customer for the Services. ‘Services’ means the Coaching Sessions, the Assessment, the Website and creation of the Coaching Plan. ‘Set-up Instructions’ means the set-up instructions to be completed by Team Members in order to attend a Coaching Session. ‘Skiller Whale Materials’ means any code, content, information, documentation and any other materials provided to Customer and Team Member during the provision of the Services and on the Website. ‘Subscription Fee’ means the monthly fees payable by Customer as set out in the Order, which remains subject to change and can be used flexibly each month. ‘Team Members’ means those Team Members employed or engaged by Customer who use the Services. ‘Terms’ means these Terms of Service. ‘Coaches’ means Skiller Whale’s expert coaches who will deliver Coaching Sessions to Team Members. ‘Coaching Plan’ means the personalised coaching plan created for each Team Member by Skiller Whale based on the Assessment, which remains subject to change for the duration of the Services. ‘Coaching Session’ means sessions led by Coaches on topics identified in the Coaching Plan, including Additional Coaching Sessions added from time to time. ‘Websites’ means skillerwhale.com, its subdomains, and any other website and domain name operated by Skiller Whale from time to time.
In these Terms, unless otherwise stated:
- the recitals section and the clause, paragraph, schedule or other headings in these Terms are included for convenience only and shall have no effect on interpretation;
- Skiller Whale and Customer are together the ‘parties’ and each a ‘party’, and a reference to a ‘party’ includes that party’s successors and permitted assigns;
- words in the singular include the plural and vice versa;
- any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
- a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
- a reference to specific legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made as at the date of these Terms under that legislation; and a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.