Terms of Service
THESE TERMS OF SERVICES IS AN ELECTRONIC RECORD IN THE FORM OF AN ELECTRONIC CONTRACT FORMED UNDER APPLICABLE LAWS THE AMENDED PROVISIONS PERTAINING TO ELECTRONIC DOCUMENTS / RECORDS IN VARIOUS STATUTES. THESE TERMS OF SERVICES DOES NOT REQUIRE ANY PHYSICAL, ELECTRONIC OR DIGITAL SIGNATURE.
PLEASE READ THESE TERMS OF SERVICES CAREFULLY. BY USING THE WEBSITE, YOU INDICATE THAT YOU UNDERSTAND, AGREE AND CONSENT TO THESE TERMS OF SERVICES. IF YOU DO NOT AGREE WITH THE TERMS OF THESE TERMS OF SERVICES, PLEASE DO NOT USE THE PLATFORM OR SERVICES.
These Terms of Service (“Terms”)of the website located at the URL https://sherlocksupercoach.ai/, on mobile sites or mobile application and the other associated/ancillary applications, products, websites and services and all other variations of the same and as mobile applications available on the Google Play store & App Store as sherlocksupercoach.ai respectively (collectively referred to as “Platform”) is between XCalibrate Global Solutions Inc. (referred as “Company” or “we” or “us” or “our”), a company incorporated under the laws of Delaware, US with its registered office situated at 8, The Green, Ste R, Dover, DE 19901, and the registered Users, defined to include any person who registers himself/herself/itself on the Platform and holds an Account on the Platform (referred as “you” or “your” or “User”) describe the terms on which Company offers Services.
PLEASE READ THE TERMS CONTAINED IN THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. PLEASE NOTE THAT THESE TERMS CONTAIN A BINDING AND MANDATORY ARBITRATION PROVISION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
You and Company shall hereinafter be individually referred to as a “Party” and collectively as the “Parties”
1. CLICK TO ACCEPT
Before using certain areas of the Platform you may be asked to indicate your acceptance of additional special terms and conditions by clicking a button marked “I Accept” “I Agree” “Okay” “I Consent” or other words or actions that similarly acknowledge your consent or acceptance of a Click-Through Terms and Conditions. Any consent so provided by you will be deemed to be valid consent under all applicable laws.
2. UPDATION OF TERMS AND CONDITIONS
Your use of the Platform is subject to the Terms and Conditions, which may be updated, amended, modified, or revised by us from time to time. To ensure that you are aware of any additions, revisions, amendments, or modifications that we may have made to these Terms and Conditions, it is important for you to refer to the Terms and Conditions from time to time. The updated Terms and Conditions shall be effective immediately and shall supersede these. We shall not be under an obligation to notify you of any changes to the Terms and Conditions. You shall be solely responsible for reviewing the Terms and Conditions from time to time for any modifications. If you continue to use the Platform and/or Services after the updated Terms and Conditions have been published, it shall be deemed that you have read and understood and accept the updated Terms and Conditions. Any reference to Terms of Service herein shall refer to the latest version of the Terms of Service.
3. WEBSITE SERVICES
You access to the Platform and such other services which include but are not limited to any Artificial Intelligence (“AI”) powered interactive session related services, platform services, artificial simulations and assessments, to interact with coaches/mentors who are industry experts, professionals, supervisors, and leaders from various domains across the globe (“Coach”), to help the User acquire knowledge, perspectives and skills by means of various AI powered interactive sessions (“Services“).
Company reserves the right to update the Platform and /or Services, in order to, inter alia, introduce new features or Services, enhance existing features or Services, improve user experience and performance. You hereby agree that Company will be able to provide support services only if you install all the updates upon receiving notifications while using the Platform and its Services.
The User avails the Services mentioned hereunder for receiving coaching, insights, perspectives, and advices which enables the User to achieve and sustain peak performance at work level and deal with day-to-day challenges and/or issues involving conflict with team, colleagues, managers, supervisors etc.
You may avail the Services as a part of your employer’s enterprise level arrangement with us (“Corporate Plan”)
4. ELIGIBILITY AND ACCOUNT REGISTRATION
(a) By using the Platform, you affirm that you are at least 18 years of age and are fully able and competent to accept the Terms and Conditions and the obligations, affirmations, representations, warranties set forth in the Terms and Conditions, and to abide by and comply with the terms stated therein. Registration of User in the Platform is available only to persons who can form legally binding contracts. Persons who are “incompetent to contract” within the meaning of the applicable law including minors, un-discharged insolvents, or person with unsound mind etc. are not eligible to use the Platform.
(b) In order to avail the Services under the Corporate plan, you must register an account on the Platform (an “Account”). When you register on the Platform and set up your Account, you must: (i) provide accurate and complete information; (ii) promptly update your Account information with any new information that may affect the operation of your Account; (iii) authorize Company to make any inquiries we consider necessary or appropriate to verify your Account information or the information you provide to us via the Platform including document proofs or copies or any such information as required mandatorily by applicable law that need to be provided to us; and (iv) acknowledge and accept any applicable policies, including but not limited to those pertaining to service quality, confidentiality, User integrity, anti-harassment and conflict of interest. You will not use false identities or impersonate any other person or use another account that you are not authorized to use on any computer, mobile phone, tablet, or other device (collectively “Device”).
(c) You are responsible for safeguarding and maintaining the confidentiality of your Account information. You agree not to disclose your Account information to any third party and that you are entirely and solely responsible for any and all activities or actions that occur pursuant to the use of your Account on the Platform, whether or not you have authorized such activities or actions. You will immediately notify Company of any unauthorized use of your Account. You may be held liable for losses incurred by Company due to authorized or unauthorized use of your Account as a result of your failure in keeping your Account Information secure and confidential.
(d) If you provide any information that is untrue, inaccurate, not current or incomplete (or becomes untrue, inaccurate, not current or incomplete), or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Platform / Services (or any portion thereof).
5. PLATFORM LICENSE
(a) Subject to your compliance with these Terms, Company grants you a limited, non-exclusive, non-transferable license: (i) to view, download and print any content of Platform solely for your personal and non-commercial purposes; and (ii) to access, modify, edit and download any content, to which you are permitted access solely for your use. You have no right to sublicense the license rights granted herein.
(b) You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform and Services, except as expressly permitted in the Terms Including without limitation capturing screenshots, pictures, copying over questions etc.
No licenses or rights are granted to you
(c) No licenses or rights are granted to you by implication or otherwise under any Intellectual Property Rights owned or controlled by Company or its licensors, except for the licenses and rights expressly granted in the Terms. The Platform and the Intellectual Property Rights vested therein is owned by Company.
(d) You agree that this Platform and its Services are made available to you on a non-exclusive, non-transferable, non-sublicensable and on a limited license basis and hence, you will not permit, enable, introduce or facilitate other persons to participate in availing Services from your Account, including others who may be subject to an agreement that is the same or similar to this Terms and Conditions.
(e) You agree and understand that these restrictions are reasonable and are necessary to protect the business interests of the Company. You acknowledge that violation or attempted violation of the terms set out in this clause will cause irreparable damage to the Company, and you therefore agree that the Company shall be entitled as a matter of right to an injunction, out of any court of competent jurisdiction, restraining any violation or further violation of this clauses by you or others acting on your behalf. The Company’s right to injunctive relief shall be cumulative and in addition to any other remedies provided by law or equity.
6. RULES AND CODE OF CONDUCT
(a) You shall not use the Platform for any purpose that is prohibited by the Terms; or other rules or policies implemented by us from time to time.
(b) You shall comply with all applicable local, provincial laws, and regulations in connection with your availing of the Services.
(c) You shall keep Company informed of any technical issues or problems with the Platform, as and when the issues develop.
(e) Additionally, you shall not share any information that: (i) may be harmful to minors or children below the age of 18 (eighteen) years; (ii) threatens the unity, integrity, defence, security or sovereignty of the country, friendly relations with foreign states or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation; and (iii) is invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; (iv) harms minors in any manner; (v) infringes any patent, trademark, copyright or other proprietary rights; (vi) violates any laws for time being.
(f) Furthermore, you shall not (directly or indirectly): (i) take any action that imposes or may impose an unreasonable or disproportionately large load on Company’s (or its third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform; (iii) bypass any measures we may use to prevent or restrict access to the Platform (or parts thereof); (iv) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Platform, except to the limited extent applicable laws specifically prohibit such restriction; (v) modify, translate, or otherwise create derivative works of any part of the Platform; or (vi) copy, rent, lease, distribute, or otherwise transfer any or all of the rights that you receive hereunder.
(g) You will not access the Platform, and/or its services, or the personal information of other Users, available on the Platform in order to build a similar or competitive website, product, or service.
(h) If are an Individual, you will not access the Platform and/or its services for the purpose of hiring, recruiting or inviting any other User to attend any program, event, function, seminar, conference, talk, etc.
(i) You agree to immediately notify us of any unauthorised use, or suspected unauthorized use of your Account, or any other breach of security, in relation to your personal information on the Platform.
(j) One Account shall not be used by more than one User. Any use of an Account by a third-party would deem to be unauthorised usage. The Company reserves the right to disable any such Account from the Platform.
7. USE OF YOUR INFORMATION
(b) We ensure easy access to the Users by providing an option to update your Account information. We reserve the right to moderate the changes or updates requested by you.
(c) We reserve the right to maintain, delete or destroy all information and materials posted or uploaded through the Services, pursuant to our internal record retention and/or destruction policies. We (may/may not) make use of third-party cloud services providers or use our own service infrastructure for hosting the servers and databases. While we make commercially reasonable efforts to ensure that the data stored on our servers is persistent and always available to the User, we will not be responsible in the event of failure of the third-party servers or any other factors outside our reasonable control that may cause the User’s data to be permanently deleted, irretrievable, or temporarily inaccessible.
(d) You acknowledge and agree that we may preserve your information and may also disclose your related information if required to do so by law; or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these TOS; (c) respond to claims that any of your usage of the Platform violates the rights of third parties; (d) detect, prevent, or otherwise address fraud, security or technical issues; or (e) protect the rights, property, or personal safety of the Platform, its users, or the public.
8. DATA USAGE AND INSIGHTS:
(a) Necessary data from the AI powered interactive sessions, assessments and simulations shall be collected and processed as the User is engaging on the Platform by participating in the AI powered interactive sessions including conversations with the Coach. The data collected shall be crunched and processed to provide useful and personalised insights and coaching to the User for enabling such Users to sustain peak performance and deal with day-to-day challenges and/or issues relating to their career path and progression.
(b) The User hereby agrees that-
(i) The User will treat the outcome of the data processed i.e., personalised coaching and other insights with utmost seriousness and shall not hold Company responsible for decisions taken by the User on the basis of the insights provided by Company;
(ii) Company shall use the data strictly only for providing Services and shall not indulge in any kind of data tampering or vandalization.
(iii) Company may provide and share the data collected to the governmental authorities if requested, directed or mandated by any regulatory authorities in compliance with applicable laws.
(iv) The User will treat the insights as guidelines and not decision-making principles for any step forward in the User’s career and the Company shall not be liable for any damages or loss suffered by the User due to the Users use of the insights.
(v) For the Users who are availing Services under the Corporate Plan, insights from the User’s interaction with the Platform may be shared in anonymized and summarized format with the User’s employer. The Company shall ensure that confidentiality is maintained in the event that the insights are shared with the User’s employer in a manner that the employer will not be able to identify one single User from the insights and analytics provided.
9. DECLARATIONS, REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) Each Party hereby represents and warrants that it has the legal right, power and authority to enter into, deliver and perform this Terms and Conditions and any other documents executed in connection with or pursuant thereto.
(b) The User specifically covenants that he/she shall keep confidential all information, including but not limited to insights, coaching conversations, assessments, simulations etc. in the course of AI powered interactive sessions with the Coach.
(c) Notwithstanding anything contained herein, the User does not have the right to assign any of his/her rights under these Terms to any other person or organization.
(d) The User understands and agrees that any and all outcome and/or answers, advices, insights, coaching, assessments, simulations provided, in the course of AI powered interactive sessions, by the Coach are based on the interactive sessions between the User and the Coach and thus any such insights and/or advice must not be taken as professional advice. The User further agrees and undertakes not to hold Company responsible for any decision taken by User on the basis of the advice or insights as provided by the Coach.
(e) The User shall under no circumstances discuss or share any sensitive personal information with the Coach.
(f) The User understands and acknowledges that Company is not affiliated with any professional institution or body. The User further understands that the certificate and/or report issued by Company at the end of programme will be a certificate and/or report of completion of the assessments offered on the Platform and not of any professional institution.
10. THIRD PARTY SITES
(b) We attempt to be as accurate as possible. However, we do not warrant those descriptions of our content or other content of this site is accurate, complete, reliable, current, or error-free. Also, your access to the Platform may also be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or at any time without prior notice. We will attempt to limit the frequency and duration of any such suspension or restriction. We also provide links to other sites over which we have no control. We are not responsible for the availability of such external sites or resources and we do not endorse and are not responsible or liable for any content, advertising, products or other material on or available from such sites or resources.
(c) We cannot and will not assure that other Users are or will be complying with the foregoing rules or any other provisions of these Terms, and, as between you and us, you hereby assume all risk of harm or injury resulting from any such lack of compliance.
11. INTERACTIVE SESSIONS
(a) Some parts of the Services are interactive, and Company is in no way responsible for the content, information or actions of the User and/or other third parties. You are solely responsible for your interactions and communications with the Coach including any sensitive personal information provided by you to the Coach, and any other parties with whom you interact or communicate with through the Service.
(b) You shall not use the platform except strictly for the purposes specifically laid down in this Terms of Service.
12. INTELLECTUAL PROPERTY
(a) Company shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights and all other rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), works of authorship, mask works, designations, designs, know-how, content of the Platform, video recordings, ideas and information, google text chats which are subject matter of services (collectively referred to as “Intellectual Properties”). Notwithstanding anything contained in this Terms and Conditions, Intellectual Properties include all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like.
(b) While rendering Services, Company directly or through its representatives, may provide Users with certain materials relevant to the Services, which may be in the form of audio, video, written and oral content (“Company Materials”). Company Materials shall be the exclusive property of the Company. User hereby agrees and acknowledges that he/she shall ensure that the Company Materials are not shared with any third party, without Company’s written consent and any breach of such nature shall cause financial and irreparable injury to Company. Company hereby provides User with a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to use the Company Materials solely for its personal purpose and not for any commercial use.
(c) User may submit various materials to Company in the form of audio/video/image/written content, (“User Materials”). User hereby provides Company with an exclusive, transferrable, perpetual and irrevocable license to use the User Materials for its use. User hereby agrees and acknowledges that User Materials shall not infringe any Intellectual Property Rights of third party and shall be responsible for any claims arising out of infringement.
13. DMCA NOTICE
If you believe that any content on our Platform violates your copyright, and you wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to the Digital Millennium Copyright Act of 1998 (“DMCA Takedown Notice”)) must be provided to our designated Copyright Agent.
(a) Your physical or electronic signature;
(b) Identification of the copyrighted work(s) that you claim to have been infringed;
(c) Identification of the material on our Website or Platform that you claim is infringing and that you request us to remove;
(d) Sufficient information to permit us to locate such material;
(e) Your address, telephone number, and email address;
(f) A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
(g) A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
The Copyright Agent to receive DMCA Takedown Notices is Puja Mehra, email@example.com at 8, The Green, Ste R, Dover, DE 19901. You acknowledge that for us to be authorized to take down any content, your DMCA Takedown Notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by the Company in connection with the written notification and allegation of copyright infringement.
The User agrees to keep all technical and non-technical information, which Company may have acquired before or after the date of this Terms and Conditions in relation to the technology, customers, business, operations, financial conditions, assets or affairs of the other Party resulting from negotiating this Terms and Conditions; or exercising its rights or performing its obligations under this Terms and Conditions; or which relates to the contents of this Terms and Conditions (or any agreement or arrangement entered into pursuant to this Terms and Conditions), including but not limited to business plans, business forecasts, research, technology and financial information, procurement requirements, purchasing requirements, manufacturing, customer lists, sales and merchandising efforts, marketing plans, experimental work, development, design details, specifications, engineering, copyrights, trade secrets, proprietary information, know-how, processes, equipment, algorithms, software programs, software source documents, and information in any way related to the current, future and proposed business, products and Services of Company confidential or any other information designated as confidential from time to time.
Notwithstanding anything in the foregoing to the contrary, confidential information shall not include information which: (i) was known by the User prior to receiving the confidential information from Company; (b) becomes rightfully known to the User from a third-party source not known (after diligent inquiry) by the User to be under an obligation to Company to maintain confidentiality; (c) is or becomes publicly available through no fault of or failure to act by the User in breach of this Terms and Conditions; (d) is required to be disclosed in a judicial or administrative proceeding, or is otherwise requested or required to be disclosed by law or regulation.
15. RIGHTS AND OBLIGATIONS RELATING TO THE USAGE OF THE PLATFORM
Users shall be prohibited from carrying out the any illegal acts in the Platform including but not limited to acts mentioned below:
(a) violating or attempting to violate the integrity or security of the Platform;
(b) transmitting any information on or through the Platform that is disruptive or competitive to the provision of our Services;
(c) intentionally submitting on the Platform any incomplete, false or inaccurate information;
(d) making any unsolicited communications to other Users;
(e) using any engine, software, tool, agent or other device or mechanism (such as spiders, robots, avatars or intelligent agents) to navigate or search the Platform;
(f) circumventing or disabling any digital rights management, usage rules, or other security features of the Platform.
(h) Any unlawful activities in the Platform which are prohibited by applicable laws.
We may disclose or transfer User-generated information to our affiliates or governmental authorities in such manner as permitted or required by applicable law, and you hereby consent to such transfer. In accordance with the applicable laws, we shall transfer sensitive personal data or information including any information, to any other body corporate or a person in India, or located in any other country, that ensures the same level of data protection that is adhered to by us, only if such transfer is necessary for the performance of the lawful contract between Company or any person on its behalf and the User or where the User has consented to data transfer.
16. SUSPENSION AND TERMINATION
(a) These Terms of Services are effective unless and until terminated by either you or Company. You may terminate these Terms of Services at any time by notifying us that you no longer wish to use our Services, or when you cease using our Platform.
(b) We have the right to temporarily suspend access to the whole or any part of the Services for any reason whatsoever (including but not limited to technical/operational reasons) and shall be under no liability to you in such an event. Further, we may, but are not obliged to, give you notice of any interruption of access to the Service.
(c) We may temporarily suspend access to the whole or any part of the Services for maintenance. If you choose to access the Platform or avail Services during such maintenance, we cannot guarantee the availability of the Services and/or functionality of the Platform.
(d) We may terminate your usage of the Platform at any time for any reason, including breach of the Terms and Conditions. We have the right (but not the obligation) to refuse to grant access to Platform. Except for the rights and license granted in these terms, we reserve all other rights and grant no other rights or licenses, implied or otherwise.
(e) Once temporarily suspended, indefinitely suspended or terminated, the User may not continue to use the Platform under the same account, a different account or re-register under a new account. On termination of an account due to the reasons mentioned herein, such User shall no longer have access to data, messages and other material kept on the Platform by such User. All provisions of the TOS, which by their nature should survive termination, shall survive termination, including, without limitation, warranty disclaimers, indemnity and limitations of liability.
(f) Upon termination of this Terms and Conditions, any rights or obligations of the User existing at the time of expiration or termination, which, by their nature, survive the expiration or termination of this Terms and Conditions and such other provision as specifically identified in this Terms and Conditions, shall survive.
(a) The Company provides you with multiple automatic and/or customised alerts while providing Services.
(a) You understand and agree that any alerts provided to you through the Platform may be delayed or prevented by a variety of factors. We will do our best to provide alerts in a timely manner with accurate information. However, we neither guarantee the delivery nor the accuracy of the content of any alert. You also agree that we shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.
18. CONTACT YOU
(a) You agree that we may contact you through telephone, email, SMS, or any other means of communication for the purpose of:
(i) Rendering Services
(ii) Obtaining feedback in relation to Platform or our Services;
(iii) Obtaining feedback in relation to any other Users listed on the Platform;
(iv) Any events or initiatives that you may be interested in as part of the community of users
(v) Resolving any complaints, information, or queries by other Users regarding your critical content.
(b) You agree to provide your fullest co-operation further to such communication by Company.
(a) THE SERVICE RENDERED ON COMPANY’S PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE”. COMPANYMAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND HEREBY DISCLAIMS AND NEGATES ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS. FURTHERMORE, COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY, LIKELY RESULTS, OR RELIABILITY OF THE USE OF THE MATERIALS ON ITS PLATFORM OR OTHERWISE RELATING TO SUCH MATERIALS OR ON ANY SITES LINKED TO THIS SITE.
(b) THE COMPANY, ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, SPONSORS AND PARTNERS DO NOT WARRANT THAT: (A) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS; (E) ANY INFORMATION PROVIDED BY US IN ANY WAY WILL MEET YOUR REQUIREMENTS ; OR (F) THE PLATFORM WILL BE FREE OF GLITCHES; ON YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.
(c) COMPANY DOES NOT WARRANT THAT THE USER WILL BE ABLE TO USE THE PLATFORM/PLATFORM AT ALL TIMES OR LOCATIONS ON THE PLATFORM/PLATFORM OR THAT THE PLATFORM AND THE SERVICES PROVIDED THROUGH THE PLATFORM/PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.
(d) THE MATERIALS AS APPEARING ON THE PLATFORM MAY CONTAIN TYPOGRAPHICAL ERRORS, INACCURACIES OR OMISSIONS. COMPANY RESERVES THE RIGHT, ALTHOUGH IT IS UNDER NO OBLIGATION TO DO SO, TO CORRECT ANY ERRORS, INACCURACIES OR OMISSIONS, AND TO CHANGE OR UPDATE INFORMATION OR MATERIAL AS APPEARING ON THE PLATFORM AT ANY TIME WITHOUT PRIOR NOTICE.
You shall defend, indemnify, and hold harmless the Company, its affiliates/subsidiaries/joint venture partners and each of its, and its affiliates’/subsidiaries/joint venture partners’ employees, contractors, directors, suppliers and representatives from all liabilities, losses, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to (i) your use or misuse of, or access to, the Services and Platform; or (ii) your violation of the Terms; or any applicable law, contract, policy, regulation or other obligation. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in connection therewith.
If you are a California resident, you waive California Civil Code Section, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
21. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED UNDER LAW, IN NO EVENT SHALL COMPANY BE LIABLE WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR (I) ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL OR OTHER SUCH LOSS OR DAMAGE, INCLUDING BUT NOT LIMITED TO THOSE SUCH AS AND/OR RESULTING FROM LOSS OF PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, DEPLETION OF GOODWILL, LOSS OR CORRUPTION OF DATA OR INFORMATION, PURE ECONOMIC LOSS AND/OR SIMILAR LOSSES OR DAMAGES OF ANY KIND, HOWSOEVER ARISING IN CONNECTION WITH THESE TERMS, (II) FOR YOUR RELIANCE ON THE SERVICES (III) FOR ANY DAMAGES (IV) FOR ANY MATTER BEYOND ITS OR THEIR REASONABLE CONTROL, EVEN IF USER HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
THE LIMITATIONS OF THIS SECTION WILL NOT APPLY TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. Our licensors and service providers will have no liability of any kind under this Terms and Conditions. Unless such restriction is prohibited by applicable law, you may not bring any claim under this Terms and Conditions more than twelve (12) months after the cause of action arises.
22. EXEMPTIONS TO LIMITATION OF LIABILITY
You further agree and confirm that Company shall not be responsible, in any manner whatsoever, for any delay/unavailability of Services or failure to meet its obligations under the Terms and Conditions, which may be caused, directly or indirectly, due to:
(a) your failure to cooperate;
(b) your unavailability and/or unresponsiveness;
(c) your failure to provide accurate and complete information;
(d) your failure to provide or facilitate the submission of information in timely manner;
(e) any event beyond Company’s reasonable control.
We reserve the right, at Our sole discretion, to change, modify, add or remove portions of these Terms of Services, at any time without any prior written notice to you. We suggest that you regularly check these Terms of Services to apprise yourself of any updates. Your continued use of the Platform following the posting of changes will mean that you accept and agree to the revisions. As long as you comply with these Terms of Services, we grant you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Platform.
24. SEVERABILITY AND WAIVER
If any of these terms should be determined to be illegal, invalid or otherwise unenforceable by reason of the laws of any state in which these terms are intended to be effective, then to the extent and within the jurisdiction which that term is illegal, invalid or unenforceable, it shall be severed and deleted and the remaining Terms of Services shall survive, remain in full force and effect and continue to be binding and enforceable. III. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
25. FORCE MAJEURE
If the performance of the Party’s obligations hereunder is prevented, restricted or interfered with by reason of fire, or by epidemic or pandemic, or other casualty or accident; strike or labour disputes; war or other violence; or any act or condition beyond the reasonable control of the Parties, or an act of God (each a “Force Majeure Event”), then the Parties shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the Parties shall give prompt notice within a period of three (3) days from the date of occurrence of the Force Majeure Event and providing a description to the other Party of such Force Majeure Event in such notice, including a description, in reasonable specificity, of the cause of the Force Majeure Event and the likely duration of the impact or delay cause by the Force Majeure Event; and provided further that the Parties shall use reasonable efforts to avoid or remove such cause of non-performance and shall continue performance hereunder whenever such causes are removed.
If the Party’s performance of its obligations under this Terms and Conditions is suspended due to the occurrence of a Force Majeure Event for a period in excess of thirty (30) business days, the Parties may terminate this Terms and Conditions without incurring any charges.
26. RELATIONSHIP BETWEEN THE USER AND COMPANY
Nothing in this Terms and Conditions shall be construed to create any relationship between Company and you other than that of a service provider and user. you do not have the authority to bind Company in any manner whatsoever.
These Terms are personal to you and you shall not assign or transfer or purport to assign or transfer the contract between you and us to any other person.
28. PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS AND NON-INDIVIDUALIZED RELIEF
YOU AND THE COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THE COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
29. GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION
This Agreement shall be governed by the law of the State of Delaware, without respect to its conflicts of laws principles. Each of the parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in Delaware for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in below.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AGAINST THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
(a) Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and the Company agree (a) to waive your and the Company’s respective rights to have any and all Disputes arising from or related to this Agreement, use of our Services or Platform, resolved in a court, and (b) to waive your and the Company’s respective rights to a jury trial. Instead, you and the Company agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or a jury in court).
(b) Federal Arbitration Act
You and the Company agree that these Terms of Service affect interstate commerce and that the enforceability of this Section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
(c) Notice; Informal Dispute Resolution
You and the Company agree that each party will notify the other party in writing of any arbitral or small claims Dispute within thirty (30) days of the date it arises, the Company shall be sent by certified mail or courier to 8, The Green, Ste R, Dover, DE 19901. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with these Terms of Service and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and the Company cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or the Company may, as appropriate and in accordance with this Section, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND THE COMPANY AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR THE COMPANY WITHIN (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND THE COMPANY WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and the Company agree that (a) any arbitration will occur in Delaware, US, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of Delaware, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
(e) Authority of Arbitrator
As limited by the FAA, these Terms of Service and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitral, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms of Service. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA Rules, discovery in the arbitration shall be limited to one set of interrogatories, one set of requests for admissions, and one set of requests for production of documents.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.
(f) Rules of AAA
The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879. By agreeing to be bound by these Terms of Service, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Section is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section will remain valid and enforceable. Further, the waivers set forth herein are severable from the other provisions of this Agreement and will remain valid and enforceable, except as prohibited by applicable law.
(h) Opt-Out Right
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION BY WRITING TO: XCalibrate Global Solutions Inc., 8, The Green, Ste R, Dover, DE 19901, RE: OPT-OUT or firstname.lastname@example.org . IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE DISPUTES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
30. ENTIRE AGREEMENT
The Terms and Conditions are the entire agreement and understanding between you and Company with respect to the Services and usage of Platform.
The Company offers an emailand in-app-based support system. In case you require any assistance or support, you may access support resources or use the “Help and Support” function on the Platform or email at email@example.com . The Company provides Support on Monday – Friday between the hours of 10 a.m. – 6:30 p.m. IST (except public holidays).
The User agrees and acknowledges that the Company shall address and attempt to resolve the complaint received in accordance with the standard policies and procedures adopted by the Company, the User’s disapproval/discontent with the outcome/mode of redressal shall not be deemed to mean non-redressal of the complaint by the Company. Any suggestions by Company regarding use of the Service shall not be construed as a warranty.
In furtherance of the Consumer Protection Act 2019 (“Consumer Protection Act”) and the Consumer Protection (E- Commerce) Rules 2020 (“E-Commerce Rules”) a nodal officer is appointed to ensure compliance with the Consumer Protection Act and the E-Commerce Rules.
The details of the grievance officer to which consumer grievances can be redressed are as follows;
Name: Rajiv Kapahi
Contact Details: firstname.lastname@example.org
Designation of such officer: Chief Data Officer
The Company shall revert to every complaint within 48 hours of receipt of the complaint. Further, the Company shall take best possible efforts to redress the complaint within 30 days of receipt of the complaint. Any suggestions by Company regarding use of the Services shall not be construed as a warranty.
The User agrees and acknowledges that the Company shall address and attempt to resolve the complaint received in accordance with the standard policies and procedures adopted by the Company, the User’s disapproval/discontent with the outcome/mode of redressal shall not be deemed to mean non-redressal of the complaint by the Company. Any suggestions by Company regarding use of the Service shall not be construed as a warranty.
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
If you have any questions regarding the Services or usage of the Platform, please contact Company at email@example.com. Please note that for the purpose of validation, you shall be required to provide information (including, but not limited to contact number or registered mobile number, etc.) for the purpose of validation and taking your service request.