05 March, 2024

Terms of Service

PLEASE READ THIS SOFTWARE AS ASERVICE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THIS SOFTWARE, NAMELYiMocha CREATED, DEVELOPED BY IMOCHA INC. [“LICENSOR”]. THESE TERMS FORM ALEGALLY BINDING AGREEMENT BETWEEN YOU [“LICENSEE”/ "CUSTOMER"] ANDTHE LICENSOR.

BY REQUESTING AN AUTHORISED USER ACCOUNT CREATION, ACCESSING, BROWSING, AND/OROTHERWISE USING THE SOFTWARE OR THE SERVICES, THE LICENSEE ACKNOWLEDGES THATTHE LICENSEE HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THIS AGREEMENT.

By accessing and using iMocha, youagree to comply with the below terms of service. These terms also include theiMocha privacy policy. You may not access and use iMocha if you do not agree tothe version of the Terms. The terms “We” and “Us” refer to iMocha Inc orTecknack Technologies Private Limited, registered in Delaware and Pune (India)respectively, doing business as iMocha. Licensor and Licensee are individuallyreferred to as “party” and collectively as “parties.”

NOW IT IS HEREBY AGREED BY AND BETWEEN PARTIES AS UNDER –

 

1. Definitions

  1. Agreement shall mean this Agreement in addition to all schedules, attachments, exhibits, amendmentsto this Agreement.
  2. Licensor shall mean iMocha Inc and/or Tecknack TechnologiesPrivate Limited.
  3. Licensee shall mean Customer
  4. Customer Proposal shall mean the proposed SAAS agreement betweeniMocha and the Customer
  5. Documentation shall mean any accompanying documents, content,data provided by the Licensor to the Licensee along with the Software.
  6. Enhancements shall mean any modification,update, upgrade or addition to the Software that, when made or added to thesolution or modules currently being used by Licensee, provides minorfunctionality enhancements but does not change overall utility, functionalcapability, or application.
  7. Error shall mean any verifiable and reproducible failure orinability of the Software to perform any material functions set forth in theDocumentation due to any defect in the Software when used by the Licensee asspecified under this Agreement or the Documentation by the Licensor.
  8. Licensee Data shall mean all data created by or in any wayoriginating with Licensee including the User’s details or personal informationor the reports/ results of the skills assessment test undertaken using theSoftware or and any analysis thereof or the questionnaire/skill test uploadedby Licensee on the Software (the “Licensee Questionnaire”), whether such dataor output is stored on Licensee’s hardware, Licensor’s hardware, or exists inany system owned, maintained, or otherwise controlled by Licensee or byLicensor.
  9. SaaS shall mean Software as a Service
  10. Subscription Service/s shall mean Software services whereinSoftware owned by Licensor will be made available to the Licensee as a servicevia internet under this Agreement.
  11. Subsidiary shall meanTecknack Technologies Private Limited
  12. Software shall mean the skills assessment software hosted by theLicensor on the Microsoft Azure which can be used for assessment of competencyin various job profiles which contains a test library and the questionnairesdeveloped by Licensor and licensed by the Licensor under these terms and theconditions described in the Purchase Plan.
  13. Purchase Plan means an order plan as uploaded on the website(https://www.imocha.io/Pricing), which includes a description of Softwarespecifications, duration of the license, license fees, number of tests allowedand number of authorized Users etc. and such Purchase Plan shall beincorporated by reference, and subject to the terms of this Agreement.
  14.  User shall mean any limited number of individuals authorized bythe Licensee as specified in the Purchase Plan.

 

2. GRANT OF LICENSE AND RESTRICTIONS

A. Grant of License: Duringthe License Term specified in this Agreement and subject to its compliance withthe terms of this Agreement, Licensor hereby grants Licensee and its affiliatesa fixed-term, non-exclusive, non-transferable, revocable, non-sub licensablelimited license to use the Subscription Service solely for the “Purpose”outlined in the Customer Proposal. The grant of License to use Software shallbe only restricted to permitted Users only.

B. Licensee: shall enter into an end user license agreement witheach User who obtains access to, or who uses the Subscription Service whichshall contain terms and conditions substantially similar to, and in any eventno less protective of Licensor and the Subscription Service than, the terms andconditions set forth in this Agreement and Licensee shall use efforts toenforce the end user license agreements.

C. Restrictions: Licensee shall not, directly or indirectly:

  1. copy, modify, adapt, translate,reverse engineer, decompile, disassemble, alter, reproduce or otherwise makeany changes to the Software
  2. use the Software/ Subscription Service in any manner to providetime-sharing, benchmarking or other computer services to third parties, exceptas expressly provided herein, or allow any third party to access or benefitfrom the functionality of the Software/ Subscription Service
  3. use the Software/ Subscription Service, or allow the transfer, transmission,export, or re-export of the Software or portion thereof in violation of anyapplicable export control laws or regulations
  4. use the Software for any purpose other than the Purpose specified under thisAgreement
  5. use the Software/ Subscription Service in violation of the Purchase Plan
  6. use the Software to develop any competing or similar product
  7. use any of the Software’s components, add-ons, files, modules, externals,contents including associated license material separately from the Software

D. Delivery: The SaaS Software(including any Enhancements) will be electronically transmitted by Licensor viainternet.

E. Licensee agrees that it shall beresponsible for any development or maintenance of Licensee Data

3. ACCOUNT AND PASSWORD:

As per the package purchased by theLicensee, Licensee shall use an “Account” with User ID and Password. Licenseeshall ensure that any registration information provided by any of itsauthorized individual, shall always be accurate, correct and complete. Licenseeshall be responsible for maintaining the confidentiality of the Account andpassword and it shall be responsible for all activities that occur under anyAccount. Licensor reserves the right to refuse registration or cancel Accountswhich the Licensor deems inappropriate.

4. FEES

  1. Licensee shall pay to iMocha,without offset or deduction, the amounts set forth within the specified days asoutlined in the Customer Proposal
  2. All fees payable under this Agreement shall be paid by the Licensee inadvance before the delivery of the Software and as per the rates stated in thePurchase Plan.
  3. In the event the fees are not paid by the Licensee within the aforesaidperiod, Licensor reserves the right to suspend the provision of Services andthe Licensee shall be liable to pay interest at the rate of 12% per annum onthe amount due.
  4. iMocha reserves the right to suspend delivery of the SaaSServices if Licensee fails to timely pay any amounts due to iMocha under thisAgreement, but only after iMocha notifies Licensee of such failure and suchfailure continues for ten (10) days. Suspension of the SaaS Services shall notrelease Licensee of its payment obligations under this Agreement. Licenseeagrees that iMocha shall not be liable to Licensee or to any third party forany liabilities, claims or expenses arising from or relating to suspension ofthe SaaS Services resulting from Licensee's non-payment.

 

5. WARRANTIES; EXCLUSION OF LIABILITIES

  1. iMocha Warranties. iMocha herebyrepresents and warrants that it has full capacity and authority and allnecessary all consents, licenses, authorizations, approvals, permissions,certificates and permits (whether statutory, regulatory, contractual or otherwise)which are directly applicable to the Licensor for entering into this Agreement.In the event that the Software/ does not perform materially in accordance withits accompanying Documentation, Licensor’s entire liability upon receipt ofproof of defect in the Software shall be, at Licensor’s sole option (i) torepair the Software, or (ii) provide the support as agreed in the CustomerProposal to resolve the Error.
  2. Customer Warranties. Customer hereby represents and warrants that it has allrights necessary to permit iMocha to perform its obligations and exercise itsrights with respect to the Customer Data as contemplated by this Agreement,including all necessary permissions and consents from end users of theCustomer’s services to collect, use and disclose the Customer Data, ascontemplated by this Agreement. The forgoing expressly includes any applicableobligations under GDPR or similar regulations, it being understood that, withrespect to the Customer Data, Customer is the Data Controller (or equivalent)and iMocha is the Data Processor (or equivalent). Customer further covenantsthat it shall be solely responsible for the Customer Offering(s) and theconsequences of their use, and that iMocha shall have no liability with respectto any Customer Offering(s).The Customer represents and warrants that it shallat all times during the License Term comply with all applicable and it shallcomply with this Agreement and performance hereunder does not conflict with anyother obligation or violate any Agreement.
  3. General Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOTHPARTIES DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES,WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANYWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY,NON-INFRINGEMENT, SYSTEM INTEGRATION, AND/OR QUIET ENJOYMENT, AND THE iMochaTECHNOLOGY, THE CUSTOMER OFFERING(S), AND iMocha SERVICES ARE PROVIDED “AS IS”.
  4. Exclusions of Remedies; Limitation of Liability. IN NO EVENT SHALL EITHERPARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL ORPUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUTLIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESSINTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TOTHIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS ISINTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENTHAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF IMOCHATO THE CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT,INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT,OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLETO IMOCHA BY CUSTOMER DURING THE THREE (3)-MONTH PERIOD IMMEDIATELY PRIOR TOTHE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OFLIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OFTHIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. The Partiesacknowledge and agree that the disclaimers, exclusions and limitations ofliability set forth in this Section 5 form an essential basis of thisAgreement, and that, absent these disclaimers, exclusions and limitations ofliability, the terms of this Agreement, including, the economic terms, would besubstantially different.

6. UPDATES

iMocha may update the content of theSubscription Service from time to time, in such case Licensee may download suchrevisions, upgrades, or updates to the Software relevant to the SubscriptionService package which the customer has opted when and as iMocha publishes themvia its website or communicates to the Customer. iMocha agrees that the termsof this Agreement (or any subsequent version hereof) shall apply to any updatedversion of the Software or the Documentation.

7. INTELLECTUAL PROPERTY RIGHTS

  1. Any and all rights to the Softwarealong with any Enhancements or upgrades thereto, and any Documentation providedtherewith, including title, ownership rights and intellectual property rightssuch as copyrights, trademarks, service marks and patents therein shall remainthe sole and exclusive property of iMocha and/or its suppliers or itslicensors.
  2. From time to time, Customer may provide feedback, suggestions, requirementsor recommendations (“Feedback”) regarding the Software or the Services.Customer assigns to iMocha all right, title and interest to such Feedback andan exclusive right to create any developments based on such Feedback.
  3. Customer shall retain title to and all ownership rights in Licensee Data.iMocha shall not be liable in any manner whatsoever, for any claim arising outof or relating to the Licensee Data.

8. CONFIDENTIAL INFORMATION

  1. “Confidential Information” shallmean 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 suchother information. Confidential Information does not include information which:a) is in the public domain; (b) was known to the party of such disclosure orbecomes known to the party without breach of any confidentiality agreement; (c)is independently developed by either party without violating anyconfidentiality obligations stated herein; (d) is disclosed pursuant judicialorder or requirement of the governmental agency or by operation of law.
  2. The receiving party shall keep Confidential Information and proprietaryinformation and data received from the disclosing party in strict confidenceand shall not disclose it to any third parties except to a limited group ofreceiving party’s directors, officers, agents, authorized representatives on aneed-to-know basis.
  3. Upon request by the disclosing party, the receiving party shall immediatelyreturn to the disclosing party or destroy, all Confidential Informationdisclosed by the disclosing party and all copies thereof. All such informationshall be and shall remain the sole property of the disclosing party.
  4. The confidentiality obligations stated herein shall survive for a period offive (5) years from the date of termination or expiration of this Agreement.Notwithstanding anything to the contrary contained under this Agreement, theobligations relating to the Confidential Information containing trade secretsshall survive the lapse or termination of this Agreement.
  5. The receiving party agrees that any violation of the confidentialityobligations will cause irreparable injury to the disclosing party, entitlingdisclosing party to obtain injunctive relief in addition to all legal remedies.

9. INDEMNITY

Customer shall indemnify, defend andhold harmless the Licensor against any all costs, losses, liabilities, claims,proceedings or damages arising out of or in connection with any claim relatingto i) IPR violation ii) use of the Software/ Subscription Service other than aspermitted under this Agreement, or iii) negligence or misconduct of theLicensee or the User or iv) Licensee Data

 

10. TERM AND TERMINATION

  1. Term: This Agreement shall beeffective from the effective date of payment of license fee and shall be validfor a period stated in the Purchase Plan (“License Term”). Unless terminated asper this section, the License Term shall renew for successive term of one year.
  2. Termination for Cause: Either party may terminate this Agreement in theevent that (i) the other party is in default of any of its material obligationshereunder and such default is not remedied within 30 days of receipt of writtennotice thereof or (ii) the other party is adjudicated bankrupt or becomesinsolvent, makes any assignment for the benefit of creditors, proceedings areinstituted by the other party seeking relief, reorganization or rearrangementunder any laws relating to insolvency, bankruptcy or similar laws of anyjurisdiction, a receiver, liquidator or trustee is appointed in respect of anyproperty or assets of the other party or an order is made for the liquidation,dissolution or winding up of the other party.
  3. 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 ConfidentialInformation in Licensee’s possession. In the event this agreement is terminatedthe license fee agreed under the Purchase Plan shall be refunded to theLicensee on a pro-rata basis for the unutilized part of the Services. However,if Licensee terminates this Agreement without cause, Licensee shall be liableto pay to the Licensor, all the fees agreed under this Agreement.

11. NON-SOLICITATION

Each party agrees that it will not,nor will it cause or permit its affiliates to, during the term of thisAgreement and for a period of one year after the termination or expiration ofthis Agreement, directly or indirectly, solicit the services of (for employment,consulting or otherwise), accept the services of, or employ or engage anyperson who is now employed by the other party or any of its affiliates and withwhom the party has had contact as part of its business relationship with theother party.

12. INTERPRETATION

This Agreement will in all events beconstrued as a whole, according to its fair meaning, and not strictly for oragainst a party merely because that party (or the party's legal representative)drafted the Agreement. The headings, titles, and captions contained in thisAgreement are merely for reference and do not define, limit, extend, ordescribe the scope of this Agreement or any provision herein. Unless thecontext requires otherwise, (a) the gender (or lack of gender) of all wordsused in this Agreement includes the masculine, feminine, and neutral, and (b)the word "including" means "including, without limitation”.

13. AUDIT

Licensor shall have the right toattend at the premises of Licensee during business hours and upon reasonableprior notice in order to verify that the Software/ Subscription Service isbeing used in compliance with this Agreement. In the event the audit revealsany non-compliance is found in relation to any of the matters including thebreach of any terms of this Agreement or an unauthorized use, Licensee shallreimburse the full costs incurred by the Licensor in relation to the audit

14. FORCE MAJEURE

Neither party will be in default orliable for any delay or failure to comply with this Agreement (other than anypayment of money) due to any act beyond the control of the affected party,including but not limited to, acts of God, fire, storm, flood, earthquake,explosion, accident, acts of the public enemy, war, rebellion, insurrection,sabotage, epidemic, quarantine restriction, labour dispute, labour shortage,power shortage, [including without limitation where Licensor ceases to beentitled to access the Internet for whatever reason, server crashes, deletion,corruption, loss or removal of data], transportation embargo, failure or delayin transportation, any act or omission (including laws, regulations,disapprovals or failures to approve) of any government or government agency,provided such party immediately notifies the other.

15. NOTICE

Any notice required or permitted tobe given under this Agreement shall be in writing, by hand delivery, commercialcourier or registered to the addresses of the parties or in the case of email,sent to the email address nominated in writing by the parties in the purchaseorder or any e-mail communication between the parties. Any change to theabovementioned address shall be informed within 30 days of such change.

16. ENTIRE AGREEMENT

This Agreement constitutes the entireagreement between the parties and supersedes any prior understanding orrepresentation of any kind preceding the date of this Agreement, and may not beamended, supplemented, varied or otherwise changed except in writing. There areno other promises, conditions, understandings or other agreements, whether oralor written, relating to the subject matter of this Agreement. Each partyacknowledges that, in entering into this Agreement, it has not relied on, andshall have no right or remedy in respect of, any statement, representation,assurance or warranty other than as expressly set out in this Agreement. ThisAgreement may be modified in writing specifically referencing this Agreementand any such modifications must be signed by both the parties. Standard termsand conditions of a purchase order or an invoice or any similar documentwhether hosted on party’s website or otherwise shall be ineffective.

17. SEVERABILITY

If any provision of this Agreement isdetermined to be invalid, illegal or unenforceable in any respect, includingbecause of the duration thereof, the area covered thereby, or the types ofactivities restricted thereby, by a court of competent jurisdiction (i) thevalidity, legality or enforceability of the remaining provisions containedherein shall not in any way be affected or impaired thereby, and (ii) the courtof competent jurisdiction making such determination shall have the power toreduce the duration and/or area of such provisions or types of activitiesrestricted and/or to delete specific words or phrases and in its reduced formsuch provision shall then be enforceable. The parties may acting in good faithadopt any and all actions required to cause such invalid, illegal andunenforceable provision to be valid and enforceable, or, alternatively, toreach an agreement in relation to said null provision whereby each of the partyreceives, as far as possible, substantially the same benefits and obligationsbased on valid provisions, provided that the Agreement is not enforced in aform that materially affects the commercial agreement between the parties.

18. ASSIGNMENT AND DELEGATION

The Licensee may not assign thisAgreement without the prior written consent of the Licensor. Licensor mayassign this Agreement in conjunction with the sale of substantial assets,divestiture, merger or amalgamation, or to its affiliate, and may delegate orsubcontract its duties. Any unauthorized assignment of this Agreement is void.

19. WAIVER

Failure to exercise, or any delay inexercising, any right or remedy provided under this Agreement shall notconstitute a waiver of that or any other right or remedy, nor shall it precludeor restrict any further exercise of that or any other right or remedy. Nosingle or partial exercise of any right or remedy provided under this agreementor by law shall preclude or restrict the further exercise of that or any otherright or remedy.

20. PUBLICITY

Failure to exercise, or any delay inexercising, any right or remedy provided under this Agreement shall notconstitute a waiver of that or any other right or remedy, nor shall it precludeor restrict any further exercise of that or any other right or remedy. Nosingle or partial exercise of any right or remedy provided under this agreementor by law shall preclude or restrict the further exercise of that or any otherright or remedy.

21.SURVIVAL

Sections 2c (Restrictions), 5 (CustomerResponsibilities), 5 (Warranties) 7 (intellectual Property) through 11(Non-solicitation) and Clause 22 (Governing Laws) of thisAgreement shall survive the expiration or termination of this Agreement for anyreason

22.  GOVERNING LAWS

If the licensee is situated outsideIndia, then this Agreement shall be construed and governed by the laws ofDelaware, USA, and the parties consent to the jurisdiction of the competentcourts in the Delaware, USA with respect to any matters arising under or withregard to this Agreement.

If the licensee is situated in India,then this Agreement shall be construed and governed by the laws of India, andthe parties consent to the jurisdiction of the competent courts in the Punewith respect to any matters arising under or with regard to this Agreement.

 

23. DISPUTE RESOLUTION (ADR)

The parties agree to negotiate ingood faith to resolve any dispute between them regarding this Agreement. If thenegotiations do not resolve the dispute to the reasonable satisfaction ofparties, then each party’s CEO or their designee (“Representatives”) shall,within thirty (30) days of a written request by either party to call such ameeting, meet either in person or through any other media and alone (except forone assistant for each party) and shall attempt in good faith to resolve thedispute.