PLEASE READ THIS SOFTWARE AS A SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THIS SOFTWARE, NAMELY iMocha
CREATED, DEVELOPED BY MOCHA TECHNOLOGIES INC. [“LICENSOR”]. THESE TERMS FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU [“LICENSEE”] AND
BY REQUESTING AN AUTHORISED USER ACCOUNT CREATION, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE SOFTWARE OR THE SERVICES,
THE LICENSEE ACKNOWLEDGES THAT THE LICENSEE HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THIS AGREEMENT.
The terms “We” and “Us” refer to iMocha Technologies Inc, registered in Delaware and doing business as iMocha. Licensor and Licensee are individually referred to as “party” and collectively as “parties.”
NOW IT IS HEREBY AGREED BY AND BETWEEN PARTIES AS UNDER –
- Agreement shall mean this Agreement in addition to all schedules, attachments, exhibits, amendments to this Agreement.
- Licensor shall mean iMocha, iMocha Technologies
- Licensee shall mean Customer
- Customer Proposal shall mean the proposed SAAS agreement between iMocha and the Customer
- 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.
- 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.imocha.io/Pricing), which includes a description of Software specifications, duration of the license, license fees, number of tests allowed and number of authorized 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 authorized 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 and subject to its compliance with the terms of this Agreement, Licensor hereby grants Licensee and its affiliates a fixed-term, non-exclusive, non-transferable, revocable, non-sub licensable limited license to use the Subscription Service solely for the “Purpose” outlined in the Customer Proposal. The grant of License to use Software shall be only restricted to permitted Users only.
- Licensee: shall enter into an end user license agreement with each User who obtains access to, or who uses the Subscription Service which shall contain terms and conditions substantially similar to, and in any event no less protective of Licensor and the Subscription Service than, the terms and conditions set forth in this Agreement and Licensee shall use efforts to enforce the end user license agreements.
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:
As per the package purchased by the Licensee, Licensee shall use an “Account” with User ID and Password. Licensee shall ensure that any registration information provided by any of its authorized individual, shall always be accurate, correct and complete. Licensee shall be responsible for maintaining the confidentiality of the Account and password and it shall be responsible for all activities that occur under any Account. Licensor reserves the right to refuse registration or cancel Accounts which the Licensor deems inappropriate.
- Licensee shall pay to iMocha, without offset or deduction, the amounts set forth within the specified days as outlined in the Customer Proposal
- All fees payable under this Agreement shall be paid by the Licensee in advance before the delivery of the Software and as per the rates stated in the Purchase Plan.
- In the event the fees are not paid by the Licensee within the aforesaid period, Licensor reserves the right to suspend the provision of Services and the Licensee shall be liable to pay interest at the rate of 12% per annum on the amount due.
5. WARRANTIES; EXCLUSION OF LIABILITIES
- iMocha Warranties. iMocha hereby represents and warrants that it has full capacity and authority and all necessary 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 with its accompanying Documentation, Licensor’s entire liability upon receipt of proof of defect in the Software shall be, at Licensor’s sole option (i) to repair the Software, or (ii) provide the support as agreed in the Customer Proposal to resolve the Error.
Customer Warranties. Customer hereby represents and warrants that it has all rights necessary to permit iMocha to perform its obligations and exercise its rights with respect to the Customer Data as contemplated by this Agreement, including all necessary permissions and consents from end users of the Customer’s services to collect, use and disclose the Customer Data, as contemplated by this Agreement. The forgoing expressly includes any applicable obligations under GDPR or similar regulations, it being understood that, with respect to the Customer Data, Customer is the Data Controller (or equivalent) and iMocha is the Data Processor (or equivalent). Customer further covenants that it shall be solely responsible for the Customer Offering(s) and the consequences of their use, and that iMocha shall have no liability with respect to any Customer Offering(s).
The Customer represents and warrants that it shall at all times during the License Term comply with all applicable and it shall comply with this Agreement and performance hereunder does not conflict with any other obligation or violate any Agreement.
- General Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOTH PARTIES DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, NON-INFRINGEMENT, SYSTEM INTEGRATION, AND/OR QUIET ENJOYMENT, AND THE iMocha TECHNOLOGY, THE CUSTOMER OFFERING(S), AND iMocha SERVICES ARE PROVIDED “AS IS”.
- Exclusions of Remedies; Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER 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 PAYABLE TO iMocha BY COMPANY DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. The Parties acknowledge and agree that the disclaimers, exclusions and limitations of liability set forth in this Section 5 form an essential basis of this Agreement, and that, absent these disclaimers, exclusions and limitations of liability, the terms of this Agreement, including, the economic terms, would be substantially different.
iMocha may update the content of the Subscription Service from time to time, in such case Licensee may download such revisions, upgrades, or updates to the Software relevant to the Subscription Service package which the customer has opted when and as iMocha publishes them via its website or communicates to the Customer. iMocha agrees that the terms of this Agreement (or any subsequent version hereof) shall apply to any updated version of the Software or the Documentation.
7. 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 iMocha and/or its suppliers or its licensors.
- From time to time, Customer may provide feedback, suggestions, requirements or recommendations (“Feedback”) regarding the Software or the Services. Customer assigns to iMocha all right, title and interest to such Feedback and an exclusive right to create any developments based on such Feedback.
- 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 out of or relating to the Licensee Data.
8. 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.
Customer shall indemnify, defend and hold harmless the Licensor against any all costs, losses, liabilities, claims, proceedings or damages arising out of or in connection with any claim relating to i) IPR violation ii) use of the Software/ Subscription Service other than as permitted under this Agreement, or iii) negligence or misconduct of the Licensee or the User or iv) Licensee Data.
10. 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.
11. 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.
Each party agrees that it will not, nor will it cause or permit its affiliates to, during the term of this Agreement and for a period of one year after the termination or expiration of this Agreement, directly or indirectly, solicit the services of (for employment, consulting or otherwise), accept the services of, or employ or engage any person who is now employed by the other party or any of its affiliates and with whom the party has had contact as part of its business relationship with the other party.
This Agreement will in all events be construed as a whole, according to its fair meaning, and not strictly for or against a party merely because that party (or the party's legal representative) drafted the Agreement. The headings, titles, and captions contained in this Agreement are merely for reference and do not define, limit, extend, or describe the scope of this Agreement or any provision herein. Unless the context requires otherwise, (a) the gender (or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neutral, and (b) the word "including" means "including, without limitation”.
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 unauthorized use, Licensee shall reimburse the full costs incurred by the Licensor in relation to the audit.
15. FORCE MAJEURE
Neither party will be in default or liable for any delay or failure to comply with this Agreement (other than any payment 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 be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data], transportation embargo, failure or delay in 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.
Any notice required or permitted to be given under this Agreement shall be in writing, by hand delivery, commercial courier 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 purchase order or any e-mail communication between the parties. Any change to the abovementioned address shall be informed within 30 days of such change.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement, and may not be amended, supplemented, varied or otherwise changed except in writing. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement. This Agreement may be modified in writing specifically referencing this Agreement and any such modifications must be signed by both the parties. Standard terms and conditions of a purchase order or an invoice or any similar document whether hosted on party’s website or otherwise shall be ineffective.
If any provision of this Agreement is determined to be invalid, illegal or unenforceable in any respect, including because of the duration thereof, the area covered thereby, or the types of activities restricted thereby, by a court of competent jurisdiction (i) the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, and (ii) the court of competent jurisdiction making such determination shall have the power to reduce the duration and/or area of such provisions or types of activities restricted and/or to delete specific words or phrases and in its reduced form such provision shall then be enforceable. The parties may acting in good faith adopt any and all actions required to cause such invalid, illegal and unenforceable provision to be valid and enforceable, or, alternatively, to reach an agreement in relation to said null provision whereby each of the party receives, as far as possible, substantially the same benefits and obligations based on valid provisions, provided that the Agreement is not enforced in a form that materially affects the commercial agreement between the parties.
19. ASSIGNMENT AND DELEGATION
The Licensee may not assign this Agreement without the prior written consent of the Licensor. Licensor may assign this Agreement in conjunction with the sale of substantial assets, divestiture, merger or amalgamation, or to its affiliate, and may delegate or subcontract its duties. Any unauthorized assignment of this Agreement is void.
Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.
The Licensee provides the permission to Licensor to use the Licensee’s name or logo for promotional purposes or otherwise publicly announce or comment on this Agreement without prior written consent from Licensee.
22. GOVERNING LAWS
This Agreement shall be construed and governed by the laws of Delaware, USA, and the parties consent to the jurisdiction of the competent courts in the Delaware, USA with respect to any matters arising under or with regard to this Agreement.
23. DISPUTE RESOLUTION (ADR)
The parties agree to negotiate in good faith to resolve any dispute between them regarding this Agreement. If the negotiations do not resolve the dispute to the reasonable satisfaction of parties, then each party’s CEO or their designee (“Representatives”) shall, within thirty (30) days of a written request by either party to call such a meeting, meet either in person or through any other media and alone (except for one assistant for each party) and shall attempt in good faith to resolve the dispute.