This Click-Wrap Agreement (hereinafter "Agreement") is a legal contract between you, (hereinafter referred to as "Client") and Induslynk Training Services Private Limited having its registered office at Plot 85, Sector 44, Gurugram, Haryana - 122003 (hereinafter referred to as "Mettl" or "Induslynk"), for access to the www.mettl.* to utilize the Services (defined below).
Subject to the terms of this Agreement, Mettl grants to Client the non-transferable and non-exclusive right and license to remotely access and use the Service solely for running assessments and contests for its prospective and current employees during the term stated in the account type, as permitted by this Agreement. This license is a worldwide license, with the exception that the Licensee and users cannot access the Services from, or use the Services in, those countries to which exports are prohibited or restricted under any export control laws or regulations.
When using the Service, Client shall not, and shall ensure that its affiliates and users do not: (a) copy, translate, decompile, reverse-engineer or otherwise modify any parts of the Service (b) transmit any content, data or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable; (c) infringe the intellectual property rights of any entity; (d) interfere with or disrupt the Mettl software, the Mettl systems used to host the Service, other equipment or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service (e) use any application programming interface to access the Service other than those made available by Induslynk; (f) circumvent the user authentication or security of the Site or Service or any host, network, or account related thereto; (g) use any application programming interface to access the Service other than those made available by Mettl; (h) mirror the Service on any server without prior approval from Mettl; (i) make any use of the Service that violates any applicable local, state, national, international or foreign law; or (j) fail to use commercially reasonable efforts to prevent the unauthorized license, sale, transfer, lease, transmission, distribution or other disclosure of the Service, or (k) except for licenses provided to users as permitted in this Agreement, allow any third party to use any user identification(s), code(s), password(s), procedure(s) and user keys issued to, or selected by, Client for access to the Service.
Induslynk advices special care in using its psychometric assessments which are undertaken upon Client's express written consent. Such assessments will require Client to remain in compliance with all applicable laws and regulations and Induslynk will undertake a proper normalization or standardization process on behalf of Client. Further, Client shall be responsible for the use of the assessment services and all business decisions taken and risks thereof based on the results of the same.
If Induslynk has provided Client a free (no fee) version of the Service, to the extent permitted by applicable law, Client agrees that: (i) Mettl has no obligation to provide any particular service level or support services, and (ii) Mettl may cease providing the Service at any time without notice. This Section supersedes any conflicting term of this Agreement.
Mettl will use commercially reasonable security technologies (such as encryption, password protection and firewall protection) in providing the Service, and Client shall comply with the applicable Mettl security guidelines and procedures made known to Client through the Service or otherwise. However, Mettl does not control the transfer of data, including but not limited to Client's information collected hereunder during the providing of the Services, over telecommunications facilities, including the Internet, and Mettl does not warrant secure operation of the Service or that such security technologies will be able to prevent third party disruptions of the Service.
In cases wherever Insertion Order ("IO") has been provided to the client, IO shall include the: (i) the Services to be provided by Mettl (ii) fees for the Services being provided; (iii) the Mettl Materials associated with the Services, (iv) the term of the I O; and; (vi) such other terms applicable. Notwithstanding anything contained herein, where IO is not being signed off, and the purchase order provided by the Client ("Purchase Order" or "PO") is the documentation being signed off, the parties shall ensure the terms of the IO are added into the said PO and all the terms where IO is being referred to, shall be read to have been substituted with the nomenclature, PO.
Mettl shall have the right to use third parties in performance of its obligations and services hereunder including for the maintenance of its software platform.
For the Services, Client will pay Induslynk the fees described in the Insertion Order (the "Service Fees"). All invoices shall be payable by Client within thirty (30) days after the invoice date, failing which Induslynk may charge Client an interest at the rate of 1.5% per month.
Without limiting any rights or obligations under the Agreement, including Section 2.1 above, the following steps will be taken if an invoice becomes past due. Induslynk's and Client's representatives shall use all reasonable efforts to facilitate immediate payment of the invoice. In the event Induslynk does not receive a commitment for prompt payment, each party shall escalate the matter to Induslynk's designated financial officer or CEO and Client's Head of Finance (the "Final Escalation") for investigation and resolution.
All amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Client shall reimburse Induslynk and hold Induslynk harmless for all GST or other applicable taxes or levies which Induslynk is required to collect or remit to applicable tax authorities. This provision does not apply to Induslynk's income taxes, or any taxes for which Client is exempt, provided Client has furnished Induslynk with a valid tax exemption certificate.
The above-mentioned terms shall be made applicable unless the terms of IO mention otherwise.
By signing this Agreement, Client irrevocably acknowledge that, Client has no ownership interest in the Induslynk Materials, Content and simulators provided hereunder ("Simulators"). Induslynk shall own all right, title, and interest in such Content and Induslynk Materials, subject to any limitations associated with intellectual property rights of third parties. All the Content may only be used solely as a part and for the duration of the Service, in accordance with the terms of this Agreement. Induslynk or its licensors own all right, title and interest in any and all patent rights, copyrights, trademark rights and other rights in the Site and Service (including, but not limited to the Content, reports, data generated by the Site/Services including profile with skill assessments/proficiency), as well as any improvements, design contributions or derivative works conceived or created by either party in or to the Service, including the know-how, techniques, or procedures acquired or used by Induslynk in the performance of Services hereunder. Induslynk reserves all rights not specifically granted herein. This provision does not grant Induslynk with ownership of Client's Content or Client's Marks as defined below. Client shall not remove notices and notations on the Site or in the Service that refer to copyrights, trademark rights, patent rights and other intellectual property rights.
Induslynk's use of Client's trademarks, service marks or trade names ("Client's Marks") for providing Services hereunder, Client hereby permits Induslynk to use Client's Marks in connection with the performance of the Services and list Client in its general list of customers. Client also permits Induslynk to bring out press releases, create case studies on an anonymized basis and will be open to provide quotes from time to time solely for Induslynk's marketing purposes, provided that Induslynk shall obtain Client's prior review and approval of specific such press releases, case studies and quotes. Induslynk shall comply with Client's guidelines regarding use of Client's Marks.
Client's Content shall mean any materials or data provided by Client to Induslynk pursuant to this Agreement, including but not limited to assessment question created by Client. Client's Content is Client's Confidential Information. Notwithstanding the above, Induslynk may use Client's Content solely for the performance of the Services for Client. From time to time, Induslynk might come out with offers and incentives to enable wider sharing of Client's Content provided the prior written consent of Client is obtained by Induslynk.
Each of the parties hereto agrees to keep confidential any and all information with respect to the other party which it has received or may in the future receive in connection with this Agreement which is not otherwise available to the general public without restriction ("Confidential Information").Notwithstanding the foregoing, each of the parties shall be entitled to disclose such information: (i) to its agents, employees or representatives, who have a need to know such information for the purpose of performance of its obligations under this Agreement, and are bound by confidentiality obligations that are as restrictive as the terms contained herein, (ii) to the extent required by applicable law, or (iii) during the course of or in connection with any litigation, arbitration or other proceeding based upon or in connection with the subject matter of this Agreement provided that prompt notice shall be provided to the other party (to the extent permissible) prior to such disclosure and shall comply with any applicable protective order or equivalent. Confidential Information shall not include that information defined as Confidential Information which the receiving party can conclusively establish: (i) was in the possession of the receiving party at the time of disclosure; (ii) prior to or after the time of disclosure became part of the public domain without the act or omission of the party to whom it was disclosed; (iii) was disclosed to the receiving party by a third party under no legal obligation to maintain the confidentiality of such information; or (iv) was independently developed by the receiving party. Unless specified herein, the receiving party shall at all times maintain the confidentiality of the Confidential Information and shall use at least the same level of care (at all times being subject to reasonable care) that it uses to protect its own confidential information of a similar nature. The obligation to maintain the confidentiality of Confidential Information shall subsist during the term of this Agreement, and for a period of five (5) years from the date of termination hereof. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the disclosing party imminent irreparable injury and that the disclosing party shall be entitled to seek, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.
Client and Induslynk warrant that it shall at all times remain compliant with applicable laws, Licensee and Mettl warrant that each has the right to enter into this Agreement and that the Agreement and all Insertion Orders executed hereunder shall be executed by an authorized representative of each party.
Client warrants that it has the rights to share Client's Content with Induslynk for the purpose of carrying out its obligations under this Agreement and has further obtained its user's consent or sign off on the terms mentioned in Annexure 1
The Service, including Content, is provided "as is", and Mettl makes no warranty as to the accuracy or completeness of such Content. Except as otherwise stated in this Agreement, Mettl makes no other warranties, express or implied, including express or implied warranties of merchantability, fitness for a particular purpose and non-infringement.
LIMITATION OF LIABILITY AND INDEMNIFICATION
Except for liability arising out of (i) a breach by each party of its confidentiality obligations hereunder, (ii) each party's breach of the other party's intellectual proprietary rights (including breach of Induslynk's rights in the Induslynk Materials by Client), (iii) Client's payment obligations hereunder, or (iv) Client's breach of its indemnification obligations, in no event shall either party be liable to the other under any theory of liability, whether in an equitable, legal, or common law action arising hereunder for contract, strict liability, tort (including negligence), or otherwise, (A) for damages, which, in the aggregate, exceed the amount of the fees paid by Client during the six (6) month period immediately preceding the claim and notwithstanding the failure of essential purpose of any remedy or (B) for any special, incidental, indirect, exemplary, punitive, or consequential damages of any kind and however or for any loss of data, loss of business interruption or loss of profits, business opportunities, or goodwill arising hereunder even if notified of the possibility of such damage and notwithstanding the failure of essential purpose of any remedy.
Client will defend, indemnify and hold harmless Induslynk, its parents, subsidiaries, affiliates, successors or assigns, and their directors, officers, employees and representatives, from and against any and all actions, suits, proceedings, claims, demands, losses, costs, damages, and expenses (including but not limited to, interest, penalties, court costs, and attorneys' fees collectively "Claims") resulting or arising out of any: (i) breach of Sections 1.1, 1.2, 3, 4, 5.1 or 5.2 by Client; and (ii) gross negligent act or omission, willful misconduct by Client, Client's employees, subsidiaries, subcontractors, contractors or agents.
TERM AND TERMINATION
This Agreement shall commence on 'Effective Date' as specified above and continue to remain active till terminated by either party or otherwise indicated under the IO.
This Agreement and/or any Insertion Order may be terminated by Induslynk if Client fails to make any payments due hereunder within thirty (30) days of receipt of a default notice from Induslynk. This Agreement may be terminated by either party (i) on thirty (30) days written notice to the other party if the other party fails to perform any material obligation hereunder, and such failure is not cured within such thirty (30) days from receipt of notice from non-breaching party; or immediately (ii) if the other party files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver and such proceeding is not quashed or dropped within ninety (90) days of commencement of such proceedings, or is adjudicated a bankrupt concern. Either party may terminate this Agreement with ninety (90) days' notice to the other party without cause or for any reason.
Upon termination of this Agreement, Client shall immediately cease to use any Services. Within ten (10) days of the date of expiration/ termination of this Agreement, Client shall return all copies of the Induslynk Materials, if requested by Induslynk, destroy such Induslynk Materials and certify in writing to such return or destruction. All payment under this Agreement, including any Insertion Orders hereunder, upto the date of termination hereof, shall become immediately due and payable by Client. There shall be no refunds of any sums paid prior to the date of termination, upon termination of this Agreement.
Client may not assign or otherwise transfer any of its rights or obligations under this Agreement whether by operation of law, change of control, or in any other manner, without the prior written consent of Mettl. Such consent shall not be unreasonably withheld. Any assignment or transfer in violation of this Section shall be null and void. With respect to all information disclosed between the parties on or after the Effective Date, this Agreement constitutes the entire understanding and agreement between the parties as to its subject matter and supersedes all proposals and prior discussions and writings between the parties with respect thereto. The parties agree that this Agreement cannot be altered, amended or modified, except by a written document, signed by an authorized representative of each party. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect, in accordance with its terms as modified by such reformation. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing. Unless otherwise specified, all notices to Mettl shall be sent to the attention of the "Manager-Finance". Any notice of material breach pursuant to Section 8 shall clearly define the breach including the specific contractual obligation that has been breached. The provisions set forth in Sections 2, 3.1, 4, 5.3, 6, 7.3 and 8 of this Agreement shall survive termination or expiration of this Agreement.
Neither party shall be liable to the other for any delay or failure to perform its obligations hereunder, if such delay is due to any cause or causes beyond the reasonable control (including, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities). A prompt written notice of the 'Force Majeure Event 'shall be provided by delayed party. If the Force Majeure Event lasts longer than thirty (30) days, then the other party may immediately terminate, in whole or in part, this Agreement or the applicable Insertion Order by giving written notice to the delayed party.
In the event of a conflict between the terms and conditions of this Agreement and IO, with regard to the terms of payment, the IO shall prevail. In any other case, the Agreement shall prevail over the IO. Where IO has not been provided, please ignore.
This Agreement shall be governed and interpreted by the laws of the India. All disputes, differences or claims with respect to any matter arising out of or relating to the Agreement shall be finally settled through the provisions of The Arbitration and Conciliation Act 1996, as amended from time to time having seat of arbitration at New Delhi and the language of such arbitration being English. Subject to above the courts at New Delhi, India, shall have exclusive jurisdiction.
YOU MAY NOT ACCESS THE SOFTWARE IF YOU ARE OR WORK FOR OR ON BEHALF OF OUR DIRECT COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. INDIVIDUALS MAY ACCESS THE COMPANY SYSTEMS ONLY ON BEHALF OF OUR CUSTOMERS AND VENDORS AND ONLY UNDER TWO SCENARIOS; (1) WHEN SUCH PERSON IS EMPLOYED OR A CONTRACTOR OF OUR CUSTOMER WHO HAS EXECUTED A CUSTOMER AGREEMENT, OR (2) WHEN SUCH PERSON IS AN EMPLOYEE OF OUR VENDOR WHO HAS EXECUTED A VENDOR AGREEMENT.
FURTHEREMORE YOU MAY NOT ACCESS THE SOFTWARE IF YOU ARE OR WORK FOR OR ON BEHALF OF OUR DIRECT COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. INDIVIDUALS MAY ACCESS THE COMPANY SYSTEMS ONLY ON BEHALF OF OUR CUSTOMERS AND VENDORS AND ONLY UNDER TWO SCENARIOS; (1) WHEN SUCH PERSON IS EMPLOYED OR A CONTRACTOR OF OUR CUSTOMER WHO HAS EXECUTED A CUSTOMER AGREEMENT, OR (2) WHEN SUCH PERSON IS AN EMPLOYEE OF OUR VENDOR WHO HAS EXECUTED A VENDOR AGREEMENT. FURTHEREMORE YOU MUST HAVE RECEIVED YOUR USER CREDENTIALS IN COMPLIANCE WITH THE APPLICABLE CONTRACT BETWEEN THE VENDOR OR CUSTOMER AND US. IF THE FOREGOING REQUIREMENTS ARE MET, THEN YOU BECOME AN "AUTHORIZED USER." IF YOU ARE NOT AN AUTHORIZED USER AND YOU ATTEMPT TO LOGIN TO THE COMPANY SYSTEMS, YOU ARE NOT AUTHORIZED, AND YOU WILL BE PURSUED TO THE FULL EXTENT OF THE LAW.
IN ADDITION TO THE ABOVE, WE RESERVE THE RIGHT TO LIMIT, IN OUR SOLE DISCRETION, THE PROVISION AND QUANTITY OF ANY FEATURE, PRODUCT OR SERVICE ON THE COMPANY SYSTEM TO ANY PERSON OR GEOGRAPHIC AREA. ANY OFFER FOR ANY FEATURE, PRODUCT OR SERVICE MADE ON THE COMPANY SYSTEM IS VOID WHERE PROHIBITED. IF YOU CHOOSE TO ACCESS THE COMPANY SYSTEM OR MATERIALS MADE AVAILABLE OR LICENSED ON THIS COMPANY SYSTEM OUTSIDE OF INDIA, YOU DO SO ON YOUR OWN INITIATIVE AND YOU ARE SOLELY RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LOCAL LAWS. THIS COMPANY SYSTEM AND MATERIALS MADE AVAILABLE OR LICENSED ON THIS COMPANY SYSTEM ARE NOT INTENDED OR AUTHORIZED (A) FOR USE IN ANY TERRITORY OR BY ANY PARTY SUBJECT TO SANCTIONS OR EXPORT RESTRICTIONS UNDER LAWS APPLICABLE TO THE COMPANY OR YOU, OR (B) IN THE CASE WHERE ACCESS TO, OR USE OF, THE COMPANY SYSTEM OR MATERIALS IN A TERRITORY OR BY A PARTY WOULD EXPOSE THE COMPANY OR ITS AFFILIATES TO ANY SANCTION, PROHIBITION OR RESTRICTION UNDER THE UN SECURITY COUNCIL RESOLUTIONS OR OTHER TRADE OR ECONOMIC SANCTIONS LAWS OR REGULATIONS. YOU AGREE THAT YOU WILL NOT ACCESS, USE, EXPORT OR RE(EXPORT) THIS COMPANY SYSTEM OR ANY COPY OR ADAPTATION OF THIS COMPANY SYSTEM IN VIOLATION OF THE UNITED NATIONS SECURITY COUNCIL RESOLUTIONS OR ANY APPLICATE TRADE OR ECONOMIC SANCTIONS OR OTHER LAWS OR REGULATIONS.
Use or Used means to directly or indirectly access, activate, execute, utilize or employ the processing capabilities of the Company Systems; and
User Information means any information, image, file, list, web-link or such other material that is uploaded, generated or encountered by you through use of the Company Systems.
You represent that you have the rights and authorizations required to upload, generate or publish all User Information through Use of the Company Systems;
You agree that the User Information uploaded by you can be used and viewed by other third parties who access and Use the Company Systems.
You will use the Company Systems in accordance with all applicable laws and regulations.
In relation to the use and access of the Company Systems, you agree and undertake not to:
re-sell the usage, functionalities or services provided by the Company Systems;
use the Company Systems to host, display, upload, modify, publish, transmit, update or share any information, material or content that does not belong to you;
use the Company Systems to host, display, upload, modify, publish, transmit, update or share any information, material or content which is grossly harmful, harassing, defamatory, blasphemous, offensive, obscene, pornographic, paedophilic, libellous, invasive of others' privacy, hateful, racially or ethically objectionable, disparaging, relating or encouraging gambling, money laundering or engaging in activities which would cause offence to others on grounds of race, religion, creed, or sex or is otherwise unlawful in any manner;
use the Company Systems (including by hosting, displaying, uploading, modifying, publishing, transmitting, updating or sharing any information, material or content) to harm or attempt to harm minors in any way;
use the Company Systems to create, host, publish, share or transmit material which infringes the copyright, trademark, patent, trade secret or other intellectual property or proprietary rights of any other party;
use the Company Systems to host, display, upload, modify, publish, transmit, update or share any information, material or content for unlawful purpose;
use the Company Systems (including by hosting, displaying, uploading, modifying, publishing, transmitting, updating or sharing any information, material or content) to impersonate another person;
use the Company Systems to host, display, upload, modify, publish, transmit, update or share any information, material or content that contains software viruses or any other computer codes, files or programs designed to harm or interrupt, destroy or limit the functionality of any computer resource;
use the Company Systems to host, display, upload, modify, publish, transmit, update or share any information, material or content that threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation;
use the Company Systems for any unauthorized marketing purposes or for sending any unsolicited materials or advertisements.
You agree and understand that:
the Company Systems including but not limited to the information, logos, designs, databases, arrangement of databases, user interfaces, response formats, software, audio, pictures, logos, icons incorporated therein are the sole property of the Company or its licensors. All intellectual property in and to the Company Systems and its contents and functionalities shall vest solely with the Company or its licensors;
you have no right to make any copies of the whole or part of the Company Systems.
The Company does not represent in any manner that:
the Company Systems will be available at all times and will operate error free or that there will be uninterrupted access and service;
the integrity of the User Information will be maintained;
the Company Systems are free from viruses or other malware.
The Company shall not in any manner be liable to you for any loss, damage, liability, expense or claim suffered by you in any manner by your Use of the Company Systems. You expressly release the Company, its director, officers, employees, vendors and representatives from any loss, damage, liability, expense, claim or other consequence of any Use by you of the Company Systems.
The Company hereby disclaims and expressly waives all other conditions, representations and guarantees, whether express or implied, arising by law, custom, oral or written statements of licensor or third parties including, but not limited to, any warranty of merchantability or fitness for particular purpose or of error-free and uninterrupted use of the Company Systems.
You acknowledge that the reports provided us is based solely on information provided by you and/or any other person or entity through whom such information is being provided. All the information has been captured during the online assessment and psychometric tests cannot and do not warrant the accuracy or truthfulness of responses from you or such other parties providing such information on behalf of you.
The information contained in our reports or analysis should not be used or relied upon as the sole determiner for the purposes of your use. Use of such content or report is voluntary and does not constitute or imply any endorsement, recommendation, or favouring by us. It is recommended that you also consider other relevant factors required that you may consider relevant from your knowledge of the circumstances for each purpose you intend to use the test reports thereof. You should consider your own personal situation in addition to the information generated from our services before making any decisions basis the reports.
LIMITATION OF LIABILITY
The Company shall not be liable for any loss of profits (anticipated or real), loss of business, loss of reputation, loss of data, loss of goodwill, any business interruption or any direct, indirect, special, incidental, consequential, punitive, tort or other damages, however caused, whether or not it has been advised of the possibility of such damages. Notwithstanding anything contained herein, the Company's maximum aggregate liability shall at all times limited to a monetary value of INR 1,000/- (Rupees One Thousand Only).
Force Majeure: In no event shall the Company be liable for failure or delay that is caused by strike, riot, fire, flood, natural disaster, or other similar cause beyond the Company's control.