With Effect from [ ] Day of November, 2016
“Applicable Law”shall mean any statute, law, regulation, ordinance, rule, judgment, order, decree,
bye-law, government approval, directive, guideline, requirement or other governmental restriction or any
decision or determination by, or any interpretation, policy or administration of any of the foregoing,
by any government authority having jurisdiction over the matter in question, whether in effect as on the
date of these Terms or thereafter.
“End User”shall mean and includeall individuals who have been authorized by the User to take a Test, and shall include the individual User.
“Fees” shall mean the amount charged by Brainberg from the User for use of the Service, which may depend upon the type of Test/ Test Packageopted by the User.
“Intellectual Property”shall mean all unpatented inventions, patent applications,patents, design rights, copyrights, trademarks, service marks, trade names, domain namerights, mask work rights, know-howand other trade secret rights, and all other intellectualproperty rights, derivatives thereof, and forms of protection of a similar nature anywhere in theworld.
“Report(s)” shall meanthe Test resultand analysis report automatically generated for the use of on the Digital Platform upon completion of a Test by the End User.
“Sensitive Personal Information” shall meanpersonal information relating to the racial or ethnic origin of the data subject,political opinions, religious (or similar) beliefs, trade union membership, physical or mental health orcondition, sexual life, the commission or alleged commission of any offence, or any proceedings for anyoffence committed or alleged to have been committed.
“Test” shall mean an online test set by Brainberg or customized by the User by way of tools made available by Brainberg, with the intention of helping in analyzing the intellectual, emotional and mental abilities of the End User.
“Test Link” shall mean the uniform resource locator providing access to a Test.
“Test Package” shall mean the option to undertake multiple Tests which may be set by the User from the data base made available by Brainberg or customized by the User from the data base by use of tools made available by Brainberg.
“User” or “You”shall meanany individual who has directly availed the Test or Test Package, or an entity that has purchased the Test Packagefor its students, as provided on the Digital Platform.
“Whizqiz Content” shall mean all contents of the Digital Platform including information, text, graphics, images, logos, button icons, software code, design; collection, arrangement and assembly of content on the Digital Platform and the software programs, source codes documentation, updates, upgrades and all derivatives thereof.
3. Applicability of Terms
The Terms apply, whether you are a “Visitor” (which means you are navigating on the Digital Platform or you use the Digital Platform without been registered on the Digital Platform) or you are a User (which means you are a registered user of the Digital Platform).
4. Applicable Law
The Terms are published in compliance of, and are governed by the provisions of Indian law, including but
not limited to:
i) the Indian Contract Act, 1872;
ii) the (Indian) Information Technology Act, 2000; and
iii) the rules, regulations, guidelines and clarifications framed there under, including the (Indian) Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 (the “SPI Rules”), and the (Indian) Information Technology (Intermediaries Guidelines) Rules, 2011 (the “IG Rules”).
5. Conditions of Use
5.1 In order to use the Services independently, you need to be 18 (eighteen) years old or older andneed tobe competent to enter into a binding contract with Brainberg and are not barred from doing so under any Applicable Law.
6. Changes to the Terms
We may, in our discretion, make changes to the Terms. By continuing to use the Service after those changes are made, you are expressing and acknowledging your acceptance to those changes.
7. Creation of Account
7.1 For becoming a User of the Digital Platform, you will be required to register and create an account with us. While registering,you will be required to provide certain information. You agree that you will provide true, accurate, and complete information, and maintain and promptly update this information. We reserve a right to terminate our Serviceprovided to you, if any information provided by you is found to be untrue, incomplete or incorrect, or we have reasonable grounds to construe that such information is untrue, incomplete or incorrect.
7.2 Brainberg will enable you to set a username and password, which shall enable you to start using the Digital Platformand access your account. In the event you opt for a Test Package, Brainberg will enable you to create an Administrator Account, which will include an administrative console,which will permit you to perform certain administrative functions relating to sharing ofTest links and/ or Reports with the End Users.Your password protects the Administrator Account, and you are solely responsible for keeping your password confidential and secure. You understand that you are responsible for all use of your username and password on the Digital Platform. If the username or password is lost or stolen, or if you believe that there has been unauthorized access to the Administrator Account by any third parties, please notify us immediately and change your password as soon as possible.
7.3 You will have the option to share the Report with the End User.You may note that the Reports will be accessible and available for downloading on the Digital Platform for a period of [●] months from the date of generation of the Report. You will be allowed to store upto[●] GB of content on the Digital Platform using the Service.
The license to use and access the Digital Platformis a limited, temporary,non-exclusive, non-transferable, revocable license to make personal, non-commercial use of the Digital Platformand to use the Services made available through the Digital Platform. We may assign this license or any part of it without restrictions. You may not assign this license or any part thereof, nor transfer or sub-license your rights under this license, to any third party. All rights not explicitly granted herein are reserved with Brainberg.
9. Access and Transmission
9.1 Brainberg authorizes the User to view and access the information available on or from the Digital Platformsolely for taking Tests, viewing and downloading the Report, making payments and communications, only as per these Terms. The Whizqiz Content is the sole and absolute property of Brainbergand isprotected under copyright, trademark and other Applicable Laws. You shall not modify the Whizqiz Content or reproduce, display, publicly perform, distribute, or otherwise use the Whizqiz Content in any way for any public or commercial purpose or for personal gain.
9.2 Each Test Link provided by Brainberg to the User shall remain valid for taking the Test for a period of [●] months from the date of them being provided to the User.Upon completion of the Test or expiry of this term, the Test Link shall become invalid for their access to the User/ End User.
10. User Fees
10.1 You hereby agree to pay all Fees and other payments as may be applicable to your use of the Service and you shall not circumvent the applicableFee structure. The Fees are chargeable only on the Test or Test Package purchased by you. Any amount paid to Brainberg is non-refundable irrespective of whether the Test(s)/ Test Package is accessedor availed.
10.2 You will be responsible for all Fees incurred and purchases made by you. You shall be responsible to maintain the secrecy of your user name, password (if applicable) and payment details. You will immediately notify Brainberg of any unauthorized use of your Administrator Account or any other breach of security. Brainberg reserves the right to revise the Fees from time to time. Fee changes for the Tests will take effect at the time of purchase of any Test/ Test Packagefollowing the date of the Fee change. By continuing to use the Digital Platformafter the Fee change takes effect, you accept such changed Fee.
10.3 The Fees may be paid online through the facility made available on the Digital Platform. Third parties support and services are required to process online Fee payment. Brainberg shall not be responsible for any loss or damage caused to you during this process as these third parties are beyond Brainberg’s control. The payment process would be considered to be complete only upon receipt of the entire Fees to Brainberg’s designated bank account. Brainberg reserves the right to withdraw discounts if any, if theFees or part thereof owed by you are not paid by their due date.
10.4 The Fees can also be paid offline.
10.6 The User hereby represents that:
(i) it will pay the Fees only in Indian Rupees;
(ii) any payment information it providesshall be true and accurate; and
(iii) Brainberghas the permission to retain the payment information, including all debit/credit card information submitted by the User and the User’s issuing bank or the applicable payment network, if the credit card payment is approved by Brainberg.
11.1 You acknowledge and agree that the ownership of the Intellectual Property in the Whizqiz Content vests with Brainberg and that the Intellectual Property is protected under laws in various jurisdictions and international treaties. Other than the rights expressly granted to you under the Terms, we shall retain and own all right, title and interest in and to the Whizqiz Content, and all rights in the Intellectual Property in the foregoing.
You will not be entitled to: i transfer any rights of ownership and/or interest in and to the Whizqiz Content or portions thereof, or any derivative works of the foregoing; orii except as specifically provided in these Terms, exercise the rights granted herein with respect to the Whizqiz Content , except as specifically provided in these Terms.
11.2 We expressly reserve all other rights in and to the Whizqiz Content and Intellectual Property rights therein are not granted to you hereunder.
11.3 We may generate statistical data based on the Reports generated, while maintaining anonymity andwith no reference to you.This data may be utilized for generating awareness about latest trends in the society including education sector. You agree that this shall not be in violation of data confidentiality and intellectual property rights.
12.1 If a court determines that the Service or part thereof infringes the Intellectual Property rights of
a third party, Brainberg will, at its option, use commercially reasonable efforts to:
(i) obtain for you, the right to continue to use the Digital Platform consistent with these Terms;
(ii) modify the Service so that it is non-infringing;
(iii) replace the infringing component with a non-infringing component; or
(iv) refund a pro-rata portion of any pre-paid Fees, if applicable and paid by you , upon which all of your rights and licenses under these Terms shall automatically terminate.
12.2 We shall have no liability for a claim of infringement arising from:
(i) any third-party software;
(ii) the combination of our Service with products or services not provided by us, which claim would have been avoided but for such combination;
(iii) the modification of our Service other than as directed by us; or
(iv) the use of our Service in a manner not permitted or contemplated hereunder. THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND BRAINBERG’S ENTIRE LIABILITY WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS DUE TO USE OF THE SERVICE OR ANY PART THEREOF. The obligations of Brainberg set forth above are the sole obligations and exclusive liability of Brainberg towards you, and your sole recourse and remedy against Brainberg, for any claim or allegation of violation, infringement or misappropriation of Intellectual Property rights by the Service.
13.1 You shall be fully responsible for compliance with theseTerms and hereby agree to indemnify and hold Brainberg harmless from and against any damages or liability resulting from use of the Services by you or any end user through you, in violation of these Terms. You will not make any representation, warranty or guarantee to any End User on behalf of Brainberg, or otherwise attempt to bind or bind Brainberg in any manner. You will indemnify and hold Brainberg, and its subsidiaries, affiliates, officers, agents, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Digital Platform, your violation of these Terms, or your violation of any rights of a third party.
13.2 You hereby acknowledge and agree that Brainberg’s Service guides its Users as to the ability and aptitude, emotional intelligence or other psychological factors of the End Users as a part of its development process. The Reports only represent Brainberg's professional opinions about the End User’s abilities based on the outcomes of the Tests and such Reports must not berelied upon as statements of fact or as the sole basis for analyzing the personality of any person and related decisions; and (ii) Brainberg is not responsible for the acts or omissions of the User, including but not limited to the User's use of Tests, interpretation of Reportsthat the User makes.
14. Prohibited Use
14.1 You agree that you will not:
(i) reverse-engineer, decompile, disassemble, modify or create derivative works based on the Digital Platformor any part thereof;
(ii) reproduce, duplicate, copy, sell, resell, or exploit, any portion of the Digital Platform, use of the Digital Platform, or access to the Digital Platform;
(iii) collect or store data about other people using the Digital Platform;
(iv) create a false identity/ fake account;
(v) use any device, software or routine to interfere or attempt to interfere with the proper working of the Digital Platform;
(vi) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Digital Platform;
(vii) use the Digital Platformin any manner other than as expressly authorized in the Terms;
(viii) circumvent any technology used by Digital Platform, its licensors, or any third party to protect content accessible through the Digital Platform;
(ix) remove or alter any copyright, trademark or other intellectual property notices contained on or provided through the Digital Platform;
(x) Intentionally or unintentionally violate any Applicable Law; or
(xi) transfer the materials to another person or "mirror" the materials on any other server.
14.2 These Terms are not intended to grant rights to anyone except you and us, and in no event shall these Terms create any third party beneficiary rights. Any failure to enforce these terms or any provision thereof shall not waive our right to do so.
All our trademarks, service marks, trade names, logos, domain names, and any other features of our brand are our sole property. This License does not grant you any rights to use or display our trademarks, service marks, trade names, logos, domain names, or any other features of our brand, whether for commercial or non-commercial use.
We will make reasonable efforts to keep the Digital Platformoperational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. We reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Digital Platform, with or without notice, all without liability to you for any interruption, modification, or discontinuation of the Digital Platformor any function or feature thereof. You understand and agree that we have no obligation to maintain, support, upgrade, or update the Digital Platform, or to provide all or any specific content through the Digital Platform.
“Confidential Information” shall mean and includethe information belonging to Brainberg, namely any information, technical data or know-howincluding, but not limited to, that which comprises or relates to the Brainberg’sconfidentialand proprietary trade secrets, hardware, software (source code and object code), screens,firmware, specifications, designs, plans, drawings, data, prototypes, discoveries, research,developments, processes, procedures, Intellectual Property, market research, marketingtechniques and plans, Whizqiz Content, business plans and strategies, proprietary or third party content,customer names and other information related to customers, Fees, pricing policies andfinancial information or other business and/or technical information and materials, in oral,demonstrative, written, electronic, graphic or machinereadableform and any analyses,compilations, studies or documents. In all events, Whizqiz Content shall be deemed to be the Confidential Information of Brainberg or its third party licensors, to the extent the same is not in thepublic domain.
During the term of your Services, and for a period of two years from the date oftermination hereof, you agree to use the same care and discretion to avoid disclosure, publication, or dissemination of Brainberg’s Confidential Information as it would be its ownconfidential information of like kind, but in any case using reasonable care.
Your right to use the Digital Platform automatically terminates upon your breach of any of the Terms.
19.1 You may terminate these Terms with a prior notification in writing. You hereby agree and acknowledge that Brainberg has no obligation to retain the data with respect to the Users/ end users, and Brainberg may delete such data any time after[•]days from the date of discontinuation of use of the Services.
19.3 You will have the option to deletethe Administrator Account yourself at any point of time from the Digital Platform.
19.4 In the event you choose to delete the Administrator Account,Sections 11, 12, 13, 14, 15, 18 and21 will survive the termination of these Terms.
19.5 Upon expiration or termination of the account: (i) Your license to use the Digital Platformshall immediately cease; and (ii) You will immediately uninstall all copies of the Whizqiz Content and other tangible items that you have received or created pertaining, referring or relating to the confidential information of Brainberg or its licensors.
We endeavor to provide the best Service we can. OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DIGITAL PLATFORMIS PROVIDED AND LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. BRAINBERG, ITS AFFILIATES AND ITS LICENSORS DO NOT WARRANT OR GUARANTEE THAT THE DIGITAL PLATFORMWILL MEET THE USER’S REQUIREMENTS OR THAT THE USE OF THE DIGITAL PLATFORMWILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO THE USER.
Any damage to your computer or loss of data that results from the use of the DigitalPlatform or the Service, or from the download of any material will be your sole responsibility and is done at your own discretion.
No advice or information obtained from the Site or its Services, whether written or oral, shall create any warranty not expressly stated.
21. Limitation of Liability
21.1 You agree that, to the extent permitted by the Applicable Law, your sole and exclusive remedy for any problems or dissatisfaction with the Digital Platformis to uninstall and/ ordiscontinue use of the Digital Platform.
21.2 Disclaimer of Damages
21.3 The Service is controlled and offered by Brainberg from its facilities in the Republic of India. We make no representations that the Digital Platformis appropriate or available for use in other locations. Those who access or use the Digital Platformfrom other jurisdictions do so at their own volition and are responsible for compliance with applicable local law.
The Services on the Digital Platform may provide links to other websites or resources. Because Brainberg has no control over such websites and resources, you acknowledge and agree that Brainberg is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that Brainberg shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.
23. Force Majeure
In the event that either party is prevented from performing or is unable to perform any of its obligations under these Termsdue to any cause beyond its reasonable control, the time for performance of such term(s) shall be suspended for the duration of such force majeure up to thirty (30) days, upon which either party may elect to terminate theuse of the Service on fifteen (15) days prior written notice provided such conditions continue to exist. This provision shall not be construed as relieving either Party from its obligation to pay any sum due the other Party.
24. Representations and Warranties
You represent and warrant to Brainberg: (a) that you have full power, authority, and legal capacity to enter into the Terms and follow its obligations, and if you are registering on behalf of a company or other entity, you have the authority to bind your principal or employer; (b) you have provided/ will provide complete and accurate information to Brainberg; and (c) you will pay all amounts, fees, charges as per Brainberg’s then current rates.
25. Entire Terms
These Terms constitute the entire agreement between you and Brainberg and supersedes any other previous or contemporaneous communications, agreements, representations, or advertising with respect to Brainberg’s Services. Any modifications to these Terms shall be invalid, unless expressly agreed by Brainberg.
If any provision of the Terms shall be invalid or unenforceable to any extent for any reason including by reason of any law or regulation or government policy, the remainder of these Terms and the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each provision of these Terms shall be valid and enforceable to the fullest extent permitted by Applicable Law. Any invalid or unenforceable provision of these Terms shall be replaced with a provision, which is valid and enforceable and most nearly reflects the original intent of the unenforceable provision, in a manner suggested by Brainberg.
27. No Waiver
Failure of Brainberg at any time to enforce any provision of theseTerms or to require performance of any provision of theseTerms shall not be construed as waiver of such provision and shall not affect the validity of theseTerms or any part of it or the right of Brainbergto enforce any provision in accordance with theseTerms.
28. Applicable Law, Arbitration and Jurisdiction
i) These Terms will be governed by and construed in accordance with the laws prevailing in India.
ii) Any and all disputes howsoever arising under or in connection with these Terms will be finally settled by a sole arbitrator appointed by Brainberg, in accordance to the Arbitration and Conciliation Act, 1996, seat of the arbitrator will be Pune and the language of the arbitration will be English.
iii) Notwithstanding the foregoing, Brainberg may seek preliminary judicial relief (such as a preliminary injunction) from the courts in Pune, India if, in its judgment, such action is necessary to avoid irreparabledamage, and such courts shall have exclusive jurisdiction and venue over all matters relating to such preliminaryrelief.