This Master Services Agreement (“Agreement”) governs the access and use of TechnoFunc Business and TechnoFunc Government.
Definitions. As used in this Agreement, the following terms have the meaning set forth below.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Customer or Student or Learner” means the party entering into an Order Form with TechnoFunc, or otherwise signing up to use the Services.
“Courses” means the online courses provided by TechnoFunc as part of the Services.
The “Fees” means the amounts payable by Customer to TechnoFunc for access to the Services.
“Order Form” means the ordering document mutually executed by TechnoFunc and Customer, including electronic orders submitted by Customers.
“Personal Data” means any personal data that Customer submits into the Services.
The “Services” means any of the following offerings that may be purchased by Customer from TechnoFunc.
“TechnoFunc” means Technofunctional Institute, or one of its Affiliates.
PROVISION OF THE SERVICES
TechnoFunc agrees to make the Services available to Customer pursuant to the terms of this Agreement, and as specified in an Order Form.
Customer Restrictions
- Customer shall not, nor shall it permit its Users to:
- Copy, distribute, create derivative works, hack, modify, or interfere with, the proper working of the Services, any of the Courses, or any third-party system made available through the Services,
- Input any inappropriate, infringing, offensive, racist, hateful, sexist, pornographic, harassing, defamatory or libelous content into the Services or instruct TechnoFunc to include any such content in the Services,
- Scrape, spider, or utilize other automated means of any kind to access the Services, including but not limited to accessing API endpoints for which Customer or its Users have not been provided authorization by TechnoFunc,
- Use the Services in order to build a competitive product to the Services,
- Share login access to the Services among multiple individuals, transfer a User license (except in connection with a termination of employment), or otherwise permit any party other than the Users to use the Services,
- Introduce any computer code, file, or program that may damage the Services,
- Use the Services in any manner that is unlawful or that infringes the rights of others, or
- Use TechnoFunc’s APIs with any third party without prior written approval
- Use the Services to transmit any unsolicited commercial communications,
- Use the Services for any purpose other than internal learning, or
- Permit any individual that is under the age of 13 years old to use the Services.
- Customer shall not permit any User to access or use the Services in violation of any export law or regulation
Violations of Restrictions
In the event that TechnoFunc determines that Customer or any of its Users has violated the restrictions set forth in Section 3 above, TechnoFunc may notify Customer of such violation and allow customer a 10-day cure period to remedy such violation. If Customer fails to cure such remediable violation, then TechnoFunc may terminate or suspend access to the Services for Customer or the relevant Users.
Irrespective of the cure period stated above, TechnoFunc reserves the right in its sole discretion to terminate or suspend access to the Services for Customer or the relevant Users, at any time, if immediate action is required to address imminent potential harm or damages.
Fees & Subscriptions
Customer will pay the Fees as set forth in one or more Order Forms. Unless stated otherwise in an Order Form, all fees are payable in US dollars. Any future incremental add-on or renewal orders after the initial subscription period (as set forth in an Order Form) shall be subject to the subscription standard price in effect at time of purchase. In the event that Customer is late in making payments, then TechnoFunc reserves the right to charge the greater of 1.5% interest per month or the maximum interest permitted by law, and Customer will be liable for all third-party collection costs.
Applicable Taxes
All fees and other charges payable by Customer to TechnoFunc under this Agreement are stated exclusive of all federal, state, local and foreign taxes, levies and assessments of any nature (including value-added, use or withholding taxes). Customer agrees to bear and be responsible for the payment of all such taxes, levies and assessments imposed on Customer arising out of this Agreement, excluding any tax based on TechnoFunc’s income, gross receipts, business and occupation tax, and employment-related taxes. In the event that tax withholding is required, Customer will pay the required amount to the relevant governmental authority and produce a withholding tax certificate to TechnoFunc while remitting the residual to TechnoFunc.
Confidentiality
Scope of Confidentiality
Each party agrees that all code, inventions, know-how, or business, technical, and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”), constitute the confidential information of the Disclosing Party (“Confidential Information”), provided that it is either identified as confidential at the time of disclosure, or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed. Personal Data is considered Confidential Information.
The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law so long as the Receiving Party gives the Disclosing Party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.
Non-Use and Non-Disclosure
Except as expressly authorized herein or as necessary to perform its obligations hereunder, the Receiving Party agrees to: (1) not disclose any Confidential Information to third parties, and (2) not use Confidential Information for any purpose other than as necessary to exercise its rights or perform its obligations hereunder.
Processing of Personal Data
Notwithstanding the provisions of this section, Customer agrees that TechnoFunc may process Personal Data as necessary for: (1) storage and processing in accordance with the Agreement and applicable Order Form(s); (2) processing initiated by Users in their use of the Services; and (3) processing to comply with other documented reasonable instructions provided by User (e.g. via email or support tickets) where such instructions are consistent with the terms of the Agreement. To the extent that Customer is subject to a local data privacy law (including but not limited to the General Data Protection Regulation or the California Consumer Privacy Act), then Customer agrees to request from TechnoFunc a data protection agreement prior to providing any Personal Data to TechnoFunc.
Term and Termination
Duration of Term
This Agreement will commence on the Effective Date, and will continue until all Order Forms hereunder have expired or have been terminated. The duration of the Services will be specified in each applicable Order Form. Order Forms will renew automatically, unless terminated by either party by giving at least 30 days written notice prior to the end of the then-current term.
Termination for Material Breach
Either party may terminate this Agreement and any applicable Order Forms in the event that the other party materially breaches this Agreement, by providing 30 days written notice, unless such breach is cured during such 30-day notice period. In the event that Customer terminates this Agreement or any Order Form due to material breach by TechnoFunc, then Customer will be entitled to receive a pro-rated refund for Services not rendered past the termination date.
WARRANTY DISCLAIMER
EXCEPT AS OTHERWISE AGREED UPON BY THE PARTIES, TECHNOFUNC PROVIDES THE SERVICES AS-IS AND DISCLAIMS ALL WARRANTIES RELATING TO THE SERVICES AND ANY THIRD-PARTY SYSTEMS OR PLATFORMS ACCESSIBLE THROUGH THE SERVICES, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES RELATING TO MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AVAILABILITY.
Limitation of Liabilities
NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR RELATED TERMS AND CONDITIONS UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY FOR: (1) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR (2) ANY AMOUNTS IN EXCESS OF THE FEES PAID OR PAYABLE BY CUSTOMER TO TECHNOFUNC IN THE 12 MONTHS PRIOR TO THE DATE THE RELEVANT CLAIM AROSE.
Exceptions to Limitation of Liability
Notwithstanding the limitation of liability set forth above each party’s liability arising from breach of its confidentiality obligations hereunder will be limited to three times the amount of Fees paid or payable by Customer to TechnoFunc in the 12 months prior to the date a claim arose.
Indemnification
Customer agrees to defend TechnoFunc for all third-party claims arising from Customer’s violations, and indemnify TechnoFunc from any damages, reasonable attorney fees, and costs incurred by TechnoFunc as a result of a Claim Against TechnoFunc.
Publicity
Customer grants TechnoFunc the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on TechnoFunc’s website and in other promotional materials.
Force Majeure
Neither party will be liable for any failure or delay in the performance of its obligations hereunder to the extent caused by a condition that is beyond a party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, failure by a third-party hosting provider or utility provider, governmental actions, interruption or failure of the Internet or any utility service, or denial of service attacks.
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. This Agreement and any mutually executed Order Forms shall apply in lieu of the terms or conditions in any purchase order or other documentation that Customer provides, and all such terms and conditions are null and void and superseded by this Agreement and any mutually executed Order Forms.
This Agreement, or any part thereof, may be modified by TechnoFunc at any time, including the addition or deletion of terms at any time, and such modifications, additions or deletions will be effective immediately upon posting.
This Agreement and any disputes arising under it will be governed by the laws of India, and both parties’ consent to the exclusive jurisdiction and venue of courts in Delhi, India for all disputes arising out of this Agreement. In addition, any dispute, claim, or any non-payment (any of which shall be treated as a dispute) whether present or future, whatsoever between the parties under, arising out of, relating to or in connection with this Agreement shall be settled by mandatory arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996 by a sole arbitrator mutually appointed by the parties and both parties’ consent to such mandatory arbitration.
Either party may serve the other party with a notice in writing specifying the existence and nature of the dispute and the intention to refer the dispute to arbitration. If the parties are unable to agree on a sole arbitrator within 30 days of such notice, each Party shall appoint an arbitrator, and the arbitrators so appointed shall jointly appoint the third arbitrator. The award determined through arbitration shall be final and binding. The venue of such arbitration shall be in Delhi. The proceedings shall be conducted in English.
