Terms of Service
Licensor and Licensee are individually referred to as “party” and collectively as “parties.”
- Agreement shall mean this Agreement in addition to all schedules, attachments, exhibits, amendments to this Agreement.
- Documentation shall mean any accompanying documents, content, data provided by the Licensor to the Licensee along with the Software.
- Enhancements shall mean any modification, update, upgrade or addition to the Software that, when made or added to the solution or modules currently being used by Licensee, provides minor functionality enhancements but does not change overall utility, functional capability, or application.
- Error shall mean any verifiable and reproducible failure or inability of the Software to perform any material functions set forth in the Documentation due to any defect in the Software when used by the Licensee as specified under this Agreement or the Documentation by the Licensor.
- Free Trial means the limited Subscription Service availed by the Licensee on the trial basis free of charge until the earlier of (a) the end of the free trial period of fourteen (14) days from the date of signing up for the free trial (the “Trial Period”) or (b) the start date of any paid license purchased by the Licensee as per the Purchase Plan. Notwithstanding anything contained in the Purchase Plan, the Licensee shall have a limited right to use the Software for one (1) User and opt for three (3) different skill tests with a maximum test attempt limit of ten (10) tests to be conducted during the Trial Period.
- Licensee Data shall mean all data created by or in any way originating with Licensee including the User’s details or personal information or the reports/ results of the skills assessment test undertaken using the Software or and any analysis thereof or the questionnaire/skill test uploaded by Licensee on the Software (the “Licensee Questionnaire”), whether such data or output is stored on Licensee’s hardware, Licensor’s hardware, or exists in any system owned, maintained, or otherwise controlled by Licensee or by Licensor.
- SaaS shall mean Software as a Service
- Subscription Service/s shall mean Software services wherein Software owned by Licensor will be made available to the Licensee as a service via internet under this Agreement.
- Software shall mean the skills assessment software hosted by the Licensor on the Microsoft Azure which can be used for assessment of competency in various job profiles which contains a test library and the questionnaires developed by Licensor and licensed by the Licensor under these terms and the conditions described in the Purchase Plan.
- Purchase Plan means an order plan as uploaded on the website (https://www.interviewmocha.com/Pricing), which includes a description of Software specifications, duration of the license, license fees, number of tests allowed and number of authorised Users etc and such Purchase Plan shall be incorporated by reference, and subject to the terms of this Agreement.
- User shall mean any limited number of individuals authorised by the Licensee as specified in the Purchase Plan.
2. GRANT OF LICENSE AND RESTRICTIONS
- Grant of License: During the License Term specified in this Agreement or the Trial Period (as applicable) and subject to its compliance with the terms of this Agreement, Licensor hereby grants Licensee a fixed-term, non-exclusive, non-transferable, revocable, non-sub licensable limited license to use the Software solely for the Licensee’s internal business purpose of conducting skill assessment test for the candidates. The grant of License to use Software shall be only restricted to permitted Users.
- Licensee shall enter into an end user license agreement with each User who obtains access to, or who uses the Software which shall contain terms and conditions substantially similar to, and in any event no less protective of Licensor and the Software than, the terms and conditions set forth in this Agreement and Licensee shall take efforts to enforce all the end user license agreements with the Users.
Restrictions: Licensee shall not, directly or indirectly:
- copy, modify, adapt, translate, reverse engineer, decompile, disassemble, alter, reproduce or otherwise make any changes to the Software
- use the Software/ Subscription Service in any manner to provide time-sharing, benchmarking or other computer services to third parties, except as expressly provided herein, or allow any third party to access or benefit from the functionality of the Software/ Subscription Service
- use the Software/ Subscription Service, or allow the transfer, transmission, export, or re-export of the Software or portion thereof in violation of any applicable export control laws or regulations
- use the Software for any purpose other than the Purpose specified under this Agreement
- use the Software/ Subscription Service in violation of the Purchase Plan
- use the Software to develop any competing or similar product
- use any of the Software’s components, add-ons, files, modules, externals, contents including associated license material separately from the Software
- Delivery: The SaaS Software (including any Enhancements) will be electronically transmitted by Licensor via internet.
- Licensee agrees that it shall be responsible for any development or maintenance of Licensee Data
3. ACCOUNT AND PASSWORD:
6. DISCLAIMER OF WARRANTY
8. INTELLECTUAL PROPERTY RIGHTS
- Any and all rights to the Software along with any Enhancements or upgrades thereto,and any Documentation provided therewith, including title, ownership rights and intellectual property rights such as copyrights, trademarks, service marks and patents therein shall remain the sole and exclusive property of Licensor and/or its suppliers or its licensors.
- From time to time, Licensee may provide feedback, suggestions, requirements or recommendations (“Feedback”) regarding the Software or the Services. Licensee assign to the Licensor all right, title and interest to such Feedback and an exclusive right to create any developments based on such Feedback.
- Licensee shall retain title to and all ownership rights in Licensee Data. Licensor shall not be liable in any manner whatsoever, for any claim arising out of or relating to the Licensee Data.
9. CONFIDENTIAL INFORMATION
- “Confidential Information” shall mean information disclosed by one party to the other and which includes, without limitation Software, documentation, skill tests, reports, analysis, financial, business, technical and marketing information, business plans, methods, processes, inventions, techniques, designs, data, know-how, ideas, concepts, strategies, trade secrets, software product and services and such other information. Confidential Information does not include information which: a) is in the public domain; (b) was known to the party of such disclosure or becomes known to the party without breach of any confidentiality agreement; (c) is independently developed by either party without violating any confidentiality obligations stated herein; (d) is disclosed pursuant judicial order or requirement of the governmental agency or by operation of law.
- The receiving party shall keep Confidential Information and proprietary information and data received from the disclosing party in strict confidence and shall not disclose it to any third parties except to a limited group of receiving party’s directors, officers, agents, authorized representatives on a need-to-know basis.
- Upon request by the disclosing party, the receiving party shall immediately return to the disclosing party or destroy, all Confidential Information disclosed by the disclosing party and all copies thereof. All such information shall be and shall remain the sole property of the disclosing party.
- The confidentiality obligations stated herein shall survive for a period of five (5) years from the date of termination or expiration of this Agreement. Notwithstanding anything to the contrary contained under this Agreement, the obligations relating to the Confidential Information containing trade secrets shall survive the lapse or termination of this Agreement.
- The receiving party agrees that any violation of the confidentiality obligations will cause irreparable injury to the disclosing party, entitling disclosing party to obtain injunctive relief in addition to all legal remedies.
11. LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT TO THE CONTRARY, LICENSOR SHALL NOT BE LIABLE TO THE LICENSEE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES, HOWSOEVER CAUSED IN CONNECTION WITH THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABLITY OF LICENSOR SHALL BE LIMITED TO THE FEES RECEIVED BY LICENSOR FROM LICENSEE IN THREE (03) MONTHS PERIOD IMMEDIATELY PRECEDING EVENT GIVING RISE TO SUCH CLAIM.
12. TERM AND TERMINATION
- Term: This Agreement shall be effective from the effective date of payment of license fee and shall be valid for a period stated in the Purchase Plan (“License Term”). Unless terminated as per this section, the License Term shall renew for successive term of one year.
- Termination for Cause: Either party may terminate this Agreement in the event that (i) the other party is in default of any of its material obligations hereunder and such default is not remedied within 30 days of receipt of written notice thereof or (ii) the other party is adjudicated bankrupt or becomes insolvent, makes any assignment for the benefit of creditors, proceedings are instituted by the other party seeking relief, reorganization or rearrangement under any laws relating to insolvency, bankruptcy or similar laws of any jurisdiction, a receiver, liquidator or trustee is appointed in respect of any property or assets of the other party or an order is made for the liquidation, dissolution or winding up of the other party.
- Termination for convenience: Either party may terminate this Agreement by giving 30 days’ notice to the other party. The Licensee’s access to use the Software shall automatically cease after the expiry of the free Trial Period.
- Effect of termination: Upon termination or expiration of this Agreement, Licensee shall cease all use of Software/ Subscription Service and all data, confidential information disclosed by Licensor including Licensor Confidential Information in Licensee’s possession. In the event this agreement is terminated the license fee agreed under the Purchase Plan shall be refunded to the Licensee on a pro-rata basis for the unutilized part of the Services. However, if Licensee terminates this Agreement without cause, Licensee shall be liable to pay to the Licensor, all the fees agreed under this Agreement.
Licensor shall have the right to attend at the premises of Licensee during business hours and upon reasonable prior notice in order to verify that the Software/ Subscription Service is being used in compliance with this Agreement. In the event the audit reveals any non-compliance is found in relation to any of the matters including the breach of any terms of this Agreement or an unauthorised use, Licensee shall reimburse the full costs incurred by the Licensor in relation to the audit.