THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU, A USER OF AT LEAST 13 YEARS OF AGE (“YOU” OR “USER” OR “YOUR” OR “CUSTOMER”), AND M/s IDQ INNOVATION PVT LTD (the “COMPANY”, “Peakperformer” OR “WE” OR “US” OR “OUR” OR “PLATFORM”)EACH REFERRED TO INDIVIDUALLY AS “PARTY” AND COLLECTIVELY THE “PARTIES”,REGARDING YOUR USE OF THE MEMAST SERVICES.
PLEASE ENSURE THAT YOU READ AND UNDERSTAND ALL OF THESE CUSTOMER TERMS
BEFORE YOU START USING THE APPLICATION/WEBSITE, AS YOU WILL BE BOUND BY THESE CUSTOMER TERMS WHEN YOU CLICK “ACCEPT AND REGISTER”.BY ACCESSING, INSTALLING, BROWSING, USING OR SUBSCRIBING TO, OR REGISTERING FOR THE IDQ INNOVATION PVT LTD SERVICE (INCLUDING ANY CONTENT CREATED,UPLOADED, DOWNLOADED, COPIED, PUBLISHED, AND PROPAGATED DURING THE USEOF THE IDQ INNOVATION PVT LTD SERVICE), YOU ACKNOWLEDGE THAT YOU HAVE READ,UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS
- SCOPE OF SERVICES
- By entering into this Agreement, Customer will purchase and IDQ will provide the specific services as specified in the applicable SOW. Customer may access and use the services during the term of this Agreement and as more particularly mentioned in the applicable SOW solely for its own use and in accordance with the terms and conditions of this Agreement and subject to any restrictions designated in the applicable SOW. Each SOW will set forth, amongst other things: (a) a detailed description of the services to be performed; (b) the responsibilities of the Parties; (c) an estimated timeline; (d) project milestones and any deliverables to be created for IDQ (the "Deliverables") and (e) detailed budget (“Budget”) for the Services.
- In an event where a Party requests for a change to an SOW, the Parties shall execute a written change order (the "Change Order") in the manner prescribed under Schedule-B of this Agreement, which shall identify, in reasonable detail, all changes discussed and the Change Order will be approved subject to the written approval from IDQ.
All fees are as set forth in the applicable SOW and will be subject to the applicable payment terms set forth in the applicable SOW. Except as expressly set forth anywhere in this Agreement, all fees are non-refundable. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of IDQ. Customer must make all payments of fees without any setoffs, withholdings, or deduction of any kind.
- The Customer may cancel a session through IDQ’s website and/or mobile application more than 24 (twenty-four) hours prior to the scheduled time for such session without any Cancellation Charge (described below).
- The Customer shall be liable to pay an additional charge of 50% of the applicable fees for a session (“Cancellation Charge”), if such session is cancelled by the Customer less than 24 (twenty-four) hours prior to the scheduled time for such session (“Cancelled Session”).
- Where the Customer or any of its employees or users, as the case may be, is not present for a session within 10 (ten) minutes from the scheduled time for such session, the same shall be treated as a Cancelled Session and the Customer shall be liable to pay the Cancellation Charge.
- The Customer may reschedule a session through IDQ’s website and/or mobile application more than 24 (twenty-four) hours prior to the scheduled time for such session without any Rescheduling Charge (described below).
- The Customer shall be liable to pay an additional charge amounting to 50% of the applicable fees for a session (“Rescheduling Charge”), if such session is rescheduled by the Customer between 3 (three) hours to 24 (twenty-four) hours prior to the scheduled time for such session; provided however, the Customer shall be entitled to reschedule 2 (two) sessions without payment of the Rescheduling Charge for a 12 month subscription.
- The Customer shall be liable to pay the Rescheduling Charge, if the session is rescheduled by the Customer up to 3 (three) hours prior to the scheduled time for such session.
In the event a session is: (a) cancelled by a coach/ trainer less than 24 (twenty-four) hours prior to the scheduled time for such session; (b) delayed as a result of the coach/ trainer not being present for the session within 10 (ten) minutes from the scheduled time for such session; (c) rescheduled by a coach/ trainer less than 3 (three) hours prior to the scheduled time for such session; or (d) rescheduled by a coach/ trainer between 3 (three) hours to 24 (twenty-four) hours prior to the scheduled time for such session more than twice during the current SOW, the Customer will be entitled to a credit note for the proportionate amount of fees paid in respect of such session, redeemable against any unpaid sessions out of the then current SOW or against any future SOW.
- For the purpose of this Agreement, Confidential Information shall be treated as confidential during the term of this Agreement and for a period of 3 years thereafter.
- During such period, if required, the Parties will: (i) disclose the Confidential Information of the Disclosing Party to any third party subject to prior written consent of the Disclosing Party, using at least the same degree of care as it uses to protect its own confidential information, but not less than reasonable care or (ii) not use such information for any purpose other than to perform its obligations under this Agreement.
- Confidential Information does not include information which (i) has previously been made generally available to the public, (ii) becomes publicly known, without fault on the part of the Receiving Party, subsequent to disclosure by the Disclosing Party of such information to the Receiving Party, (iii) is received by the Receiving Party at any time from a source, other than the Disclosing Party, lawfully having possession of and the right to disclose such information, (iv) otherwise becomes known by the Receiving Party prior to disclosure by the Disclosing Party to the receiving party of such information, or (v) is independently developed by the Receiving Party without use of such information. The Receiving Party will not disclose Confidential Information of the Disclosing Party except to the Receiving Party’s officers, directors, employees, agents, and consultants who are under obligation of confidentiality upon a “need to know” basis in connection with negotiations amongst the Parties or if required to be disclosed by law, government regulation, or court order, provided that the Receiving Party promptly notifies the Disclosing Party upon learning of any such legal requirement, and cooperates with the Disclosing Party in the exercise of its right to protect the confidentiality. Upon termination of this Agreement, each party will, upon request, return and/or delete, as the case maybe, all copies of Confidential Information received from the other party.
- INTELLECTUAL PROPERTY AND OWNERSHIP OF IDQ MATERIALS
- By entering into this Agreement, IDQ provides the Customer with access to use the services through IDQ’s website and/or mobile application. Customer acknowledges that it is obtaining only a limited right of use to the services and that irrespective of any use of the words’ “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer acknowledges that IDQ retains all rights, title, interest including ownership of all intellectual property rights (“IPR”) in the services, the underlying technology, all materials as well as the course content including all videos, lectures etc. presented on the website and/or mobile application and any and all related and underlying technology and material and any derivative works, modifications or improvements of any of the foregoing (collectively, “IDQ Materials”) thereto provided by it to the Customer, and grants the Customer a royalty free, limited license to use such IDQ Materials to the extent of receiving services under this Agreement. Except as expressly set forth in this Agreement, no rights in any IDQ Materials are granted to Customer. Further, Customer acknowledges that the services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of it.
- OBLIGATIONS UNDER THE AGREEMENT:
- OBLIGATIONS OF IDQ:
- provide the services as mutually discussed and deliberated in SOW in a professional, diligent, and timely manner, as per good commercial practices, and within the budget agreed upon by the Parties;
- ensure that all personnel who are deputed to perform the Services are appropriately trained and qualified to perform such Services; and
- devote its time and attention necessary to provide the Services in accordance with the best of the industry standards and meet any quality standards as may be specified by the Customer.
- maintain proper and accurate records relating to the conduct of the Services under this Agreement, during the term of the said Agreement and provide a copy thereof to the customer upon request.
- at regular intervals provide information and reports in relation to the performance of the Services as agreed upon between the Parties.
- OBLIGATIONS OF THE CUSTOMER
The Customer shall:
- be responsible for making all the necessary arrangements including suitable infrastructure to receive the services and have in their possession all other equipment necessary to receive the services as agreed between the parties in SOW;
- provide information and documents as IDQ reasonably requires for providing the said Service; and
- cooperate with IDQ as IDQ reasonably requires during the performance of the Services.
- not ask for chemistry sessions from the proposed list of coaches as suggested by IDQ for a tenure more than 30 minutes
- CUSTOMER CONTENT
- As part of providing services under this Agreement, IDQ collects certain information and data that is related to the Customer. Such information and data is collected by IDQ as determined solely by the Customer. The Customer hereby represents and warrants that its use of services and its submission of any and all portion of such information and data including where applicable, all Personal Information (as defined herein below), provided under this Agreement is at all times in compliance with applicable laws. Customer is solely responsible for the accuracy, legality of all information that is being provided under this Agreement and hereby agrees to indemnify IDQ for any claim arising from collection, use of such information and data.
“Personal Information” means any information that identifies, relates to, describes, or is capable of being associated with, or could reasonably be linked, directly or indirectly, to an identified or identifiable living natural person, including but not limited to: (i) Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier internet protocol address, email address, account name, social security number, driver’s license number, government identification card number, passport number, or other similar identifiers; or (ii) information defined as “personal information,” “personally identifiable information,” “personal data,” or similar expressions under applicable privacy or data security Law.
- Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any IDQ product or service to IDQ (“Feedback”). IDQ may freely use Feedback in connection with any of its products or services without the need to pay compensation for any use of such Feedback.
- REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES
Each Party hereby warrants and represents to the other Party that:
- it has full power and authority to enter into this Agreement and perform its obligations hereunder;
- this Agreement has been duly executed by it and constitutes its legal, valid, and binding obligation enforceable in accordance with the terms contained herein; and
- the execution, delivery, and performance by it of this Agreement does not and will not breach or constitute a default under its constitutive documents or result in a breach of or constitute a default under any Agreement to which it is a party or by which it is bound.
- REPRESENTATION AND WARRANTIES OF IDQ:
IDQ hereby represents and warrants to the Customer that:
- it will provide these services in compliance with the provisions of this Agreement;
- it will act in good faith and use reasonable skill and care in the provision of services under this Agreement;
- it will comply with all the applicable laws in the provision of the services;
- it has all the requisite corporate and other approvals, licenses and permits from the relevant governmental authorities to provide the services.
Except as specified above, IDQ makes no warranties, express or implied, with respect to the Services and hereby disclaims any and all implied warranties for a particular purpose.
- REPRESENTATION AND WARRANTIES OF CUSTOMER:
- It is hereby expressly understood and warranted by the Customer that no liability or loss shall devolve or accrue to IDQ through any failure or arising out of any action or inaction on the part of the Customer and/or any other officers, employees, or agents of the Customer, whether directly or indirectly.
- It is hereby represented and warranted by the Customer that it shall at no time, by itself or through any of its personnel or any employees, have any rights in the Intellectual Property Rights of IDQ.
- TERM AND TERMINATION
Subject to earlier termination as provided hereinbelow, the term of this Agreement will be from the Effective Date and is for the initial service term as specified in the applicable SOW (the "Term").
- Termination for Cause: Either party reserves its right to terminate the Agreement with immediate effect in case of any material breach of any of the condition/clauses mentioned in this Agreement, if the said breach is not cured within a period of thirty (30) days by the party in breach after being informed in writing by the other party.
- Termination without Cause: IDQ reserves its right to terminate the Agreement without any reason by providing a prior written notice of thirty (30) days to the Customer.
- Effect of Termination:
- Upon termination of this Agreement, Customer shall immediately revoke its access to the services and clear the unpaid consideration set forth in the applicable SOW for services provided through the date of termination;
- Either Party shall immediately return/destroy all Confidential Information belonging to the other party that may be in its possession as instructed by such party;
- Termination of this Agreement by either Party shall not affect the rights and obligations of the Parties accrued prior to the effective date of the termination.
- NON-COMPETE AND NON-SOLICITATION
- Customer agrees that during the subsistence of the Agreement and three (3) years after that it will not hire, engage, retain any of the coach/trainer hired, retained and employed by IDQ for the purpose of coaching, consulting, mentoring, or any other purpose or business arrangement that is similar with the services, which is agreed between the parties in accordance with mutually agreed SOW under this Agreement.
- Customer shall, to the fullest extent permitted by law, defend, indemnify and hold harmless IDQ and its members, directors, officers, employees and agents from and against any and all third party claims, liabilities, losses and expenses (including reasonable attorneys’ fees), directly or indirectly, wholly or partially arising from or in connection with the services provided by IDQ and also for any negligent, gross negligent or intentional tortious act or omission of statutory or other obligations encumbered upon the customer while it undertakes the services from the IDQ.
- LIMITATION OF LIABILITY
- IN NO EVENT SHALL IDQ’s TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER HEREUNDER DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
- EXCLUSION OF DAMAGES
- EXCEPT WITH RESPECT TO A PARTY’S INTENTIONAL MISCONDUCT, INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, INDEMNIFICATION OBLIGATIONS, DIRECT PAYMENT OBLIGATIONS BETWEEN THE PARTIES PURSUANT TO THE AGREEMENT, OR ANY BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, FALIURE OF SECURITY MECHANISM ARISING HEREUNDER OR FROM THE PROVISION OF SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Governing Laws: This Agreement shall be governed by and construed in accordance with the laws of India and the courts of New Delhi shall have the exclusive jurisdiction.
- Dispute Resolution: All disputes under this Agreement shall be referred to arbitration under the Arbitration & Conciliation Act, 1996, or any amendments thereof. The parties shall consensually appoint one Arbitrator and in case of difference of opinion with regards to the name of Arbitrator, parties are free to approach the concerned court of law under the provisions of the Arbitration and Conciliation Act, 1996. The place of such arbitration shall be New Delhi. It is expressly stated that the Courts of New Delhi shall have exclusive jurisdiction with respect to the matters relating to arbitration, including the enforcement of awards and injunctive relief. The language of arbitration shall be English. The decision of the Arbitrator shall be final and binding on the Parties to the dispute. The Parties agree and undertake to carry out any decision or award of the Arbitrator relating to the dispute without delay, and further agree that there will be no appeal to any court of law or other judicial authority.
- Notices: All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided hereinabove. All notices, consents and other communications between the parties will be sent to the recipient’s address specified above. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this section.
- Assignment: Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger.
- Amendment/Modification, Waiver: No amendment or modification shall take place under this Agreement until and unless mutually agreed between the Parties by the way of an Addendum signed thereof. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
- Force Majeure: Neither Party shall be responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party.
- Severability: The unenforceability of any provision or provisions of this Agreement shall not render unenforceable or impair its remainder. If any provision of this Agreement is deemed invalid or unenforceable in whole or in part, this Agreement shall be deemed amended to delete or modify, as necessary, the offending provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties.
- Relationship of Parties: The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf.
- Headings and Titles: The headings and titles of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the various sections.
- Counterparts: This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and digital or electronic signatures shall be deemed to be handwritten signatures.
Entire Agreement: The entire understanding between the Parties hereto relating to the subject matter hereof is contained herein and the Parties make no warranties, representations or undertakings hereto except as expressly provided herein. This Agreement cannot be changed except in a writing signed by the Parties.