By clicking the “Accept” button below, or by using the Platform (defined below), you agree to be bound by the terms of this Agreement (defined below). If you do not agree to the terms of this Agreement, click the “Do Not Accept” button or leave the website/application.
- “Agreement” means these terms and conditions and any other schedules, exhibits or appendices hereto, whether attached or incorporated by reference.
- “Customer” or “you” or “your” shall mean the entity or individual that has consented to abide by this Agreement by clicking the “Accept” button below, or by using the Platform.
- “End User” shall mean any person to whom the Customer provides training using the Platform, including the employees, vendors, distributors, etc. of the Customer.
- “Platform” means the web and application based online learning platform called “Capabiliti”.
- “Qustn” means Qustn Technologies Inc., a company duly incorporated under the laws of California and having its registered office at 2600 El Camino Real, Suite 403, Palo Alto, CA, 94306, United States of America.
- “Services” shall have the meaning as ascribed to it under Qustn’s Services.
- “Term” shall begin from the date you accept this Agreement in the manner provided herein and will end on the date on which the Agreement is terminated in accordance with the terms hereof.
SERVICES AND LIABILITIES
- A Customer shall be allowed a 15 (fifteen) days trial period (“Trial Period”), during which the Customer shall be entitled to perform the following activities in accordance with the terms and conditions contained herein:
i. Create and customize an enterprise and have access to the administration panel, consumption panel and the Platform;
ii. Create or upload courses and publish them, or store them in draft mode;
iii. Add or import and assign up to 10 (ten) End users;
iv. Track the usage by End users and download reports relating to the same; and
v. Allow the End users to download the Capabiliti App and/or use the web panel for consuming the content on the Platform.
- During the Trial Period, the Customer would be allowed to provide training to up to 10 (ten) End users through the Platform.
- Multiple trials will not be allowed and in the event of activation of multiple versions of the same trial by Customer, Qustn reserves the right to terminate your access to all activations after the first trial and erase all the data recorded therein.
- At the end of the Trial Period, if the Customer does not purchase the Platform, such Customer’s access to the same would be permanently lost and no data uploaded onto the Platform would be available.
- Qustn shall, during the Term, perform the following services (collectively the “Services”) in accordance with the terms and conditions contained hereunder:
i. Provide the Platform to the Customer with limited administration rights to the Customer and provision it for usage by the End-users;
ii. Except during the Trial Period, provide support to the Customer in relation to the Platform and the Services including uptime, system maintenance, including provision of downloading reports from the Platform; and
iii. Except during the Trial Period, use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) scheduled maintenance, (b) urgent security updates and not budgeted or (c) causes beyond the direct control of Qustn (d) due to circumstances beyond the reasonable control of Qustn, including but not limited to governmental action, acts of God, floods, fires, explosions, accidents, civil insurrections, terrorist acts, strikes or other protests whether or not involving our employees.
- The Customer shall, during the Term of this Agreement, perform the following supporting services (collectively the “Supporting Services”) in accordance with the terms and conditions contained herein:
i. Digitize the content, at its own cost, including updating the content from time to time to be provided on the Platform for End users; and
ii. Provide access to the digital content to be consumed by the End users and management of the End users.
It is hereby clarified that the data usage charges incurred, if any, for the usage of the Platform by the End-users shall not be to the account of Qustn.
Qustn will not be responsible or liable in any manner, for (a) any changes, modifications, combinations with other software applications or equipment, conditions or issues on or arising from Customer’s systems, servers, networks, or the internet which affects the use or operation of the Platform and / or use of Services, Qustn derivatives; or (b) to actions and / or behavior of the Customer (or one or more of its members) which prove to be inappropriate, harmful or against the law (including copyright infringement) whether in India or abroad.
Except in cases of willful misconduct and gross negligence on account of Qustn, Qustn will not be liable to the Customer and Qustn is then released from all liability for any failure related to the Platform and / or connected to the Services and / or flow to the Customer. Further, the Customer agrees that in any case, the Customer may not recover from Qustn, in contract or tort, under statute or otherwise, aggregate damages in excess of the aggregate amount of fees paid by the Customer to Qustn during the 3 (three) month period immediately preceding the event giving rise to the claim for liability, which sum would be inclusive of all incidental expenses (i.e. legal fees, stationery, etc.).
Customer is solely responsible for all activity which occurs within Customer’s account and for the actions of its employees, contractors or agents, whether or not such person is or was acting within the scope of their employment, engagement or agency relationship.
- In order to use the Services, the Customer must obtain a valid account/enterprise on the Platform, which can be obtained by registering on the website by filling in the registration form and providing all the required information, including a valid e-mail address (“Registration Data”). The Customer shall choose an account/enterprise name that is not already in use by another user.
- The Customer will be responsible for maintaining the confidentiality of their login information and are fully responsible for all activities performed on their account.
- The Customer agrees to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form to the Services; (b) maintain and promptly update the Registration Data to keep the information true, accurate, current and complete; and (c) immediately inform Qustn of any unauthorized use of your account or any other breach of security.
- Qustn is under no obligation to verify the data provided by the Customer. However, if Qustn discovers or suspects that the above information is untrue, inaccurate or incomplete, Qustn may suspend or terminate your account and refuse any and all current or future use of the Services (or any part of them).Qustn will not be liable for any loss or damage arising from the failure to comply with the provisions of this Clause.
- Qustn will not be liable for any loss or damage arising from the failure to comply with the provisions of this Clause.
PURCHASING PROCESS AND PAYMENT TERMS
- During or after the Trial Period, Customer can purchase any of the plans at any time available on the pricing page. Buying a user plan involves the conversion of the Platform from a free version into a Platform with a fee. The plans are based on a minimum monthly billing charged within  (seven) days from the beginning of every month (“Monthly Fees”).
- Any arrears arising on account of add-on End users or usage beyond the limit (“Additional Fees”), as the case may be, shall be invoiced by Qustn on the Customer in the manner provided under Schedule I. For the add-on End users, the billing will commence from the first time they login and they will be charged as per the prevailing plan subscribed by the Customer. The add-on bill is subsequently charged at the end of the monthly billing cycle.
- The prices charged by Qustn for the Services are those in effect at the time of subscription. In case of renewal of the Agreement, the price charged will be the one in force at the time of renewal.
- Pricing and billing policies are subject to change at any time at the sole discretion of Qustn. An updated version of the price list will be available on the website . The Customer undertakes to consult before buying and before the Agreement renewal. Therefore, the renewal of the Agreement occurred determines the acceptance of any new price charged.
- Auto renewal for the plans would be ON by default. To turn it OFF, the customer has to contact Qustn and request the same. Further, misuse of the same may lead to suspension of the Services and the account of the Customer and/or End Users.
- All payments required to be made hereunder by the Customer shall be paid by it to Qustn in accordance with the payment terms provided under Schedule I hereto.
- It is further agreed between the Parties that in the event of non-payment of Monthly Fees and/or Additional Fees by the Customer in the manner and in accordance with the terms and conditions of this Agreement, Qustn shall send reminders twice a week to the Customer. Additionally, Qustn shall, in case of non-payment, attempt to charge the Customer’s card with the relevant bill amount on the 7th (seventh) day of the monthly billing cycle. In case payment is still not received, the Services shall stand suspended automatically. These rights are without prejudice to Qustn’s right to terminate this Agreement in accordance with the terms hereof. It is further clarified that any delayed payments shall be subject to payment of interest at the rate provided in Schedule I hereto.
- Qustn and the Customer shall have the right to terminate this Agreement forthwith by giving notice in writing addressed to the other party at its e-mail address, in case of happening or occurrence of the following events: (a) breach of any of the terms or conditions of this Agreement or non-performance by such other party and such breach/ non-performance is not cured within 15 (fifteen) days of notice by the non-breaching party; or (b) prosecution for any criminal offence of the partner/s, director/s, sole proprietor etc. of such other party; or (c) upon the bankruptcy, receivership, insolvency, liquidation or dissolution of either party; or (d) if the other party commits any misconduct, fraud, cheating, misappropriation or any act lacking in good faith.
- Each party shall have the right to terminate the Agreement in accordance with the provisions of the third Clause under Miscellaneous (Force Majeure).
- Qustn shall have the right to terminate the Agreement without assigning any reason by giving 30 (thirty) days’ notice to the other party by way of sending an e-mail.
- Subject to the provisions of the seventh Clause under ‘Purchasing Process and Payment Terms’, Qustn shall have the right to forthwith terminate this Agreement in case of failure on part of the Customer to make payments in accordance with the terms hereof.
- Upon the expiry or termination of this Agreement, provisions of this Agreement shall, to the extent stated or necessarily implied, survive the termination thereof. Further, termination or expiry of this Agreement shall be without prejudice to the obligations incurred by either party hereunder prior to such termination or expiry and such obligations shall, notwithstanding anything to the contrary, continue to bind the relevant party.
- Upon the effective date of termination, Customer’s access to the Service will be terminated. Furthermore, upon reasonable request to Qustn and subject to the Customer having paid all the amounts due to Qustn, Customer may, within 30 (thirty) days of termination of the Agreement, export and retrieve the data/content posted by it on the Platform during the course of availing the Services, which request will be subject to technical limitations caused by factors included but not limited to the nature of Customer’s request, e.g., the frequency and/or timing of the export and retrieval. 30 (Thirty) days after the effective date of termination, Qustn shall have no obligation to maintain or provide any data belonging to the Customer. Except when the data belonging to the Customer has been exported by Customer in accordance with this clause, Qustn shall use commercially reasonable efforts to permanently and irrevocably remove, purge or overwrite all data still remaining on the servers used to host the Service, unless and to the extent applicable laws and regulations require further retention of such data.
GOVERNING LAW AND DISPUTE RESOLUTION
- This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. Any dispute between the parties relating to or arising out of this Agreement shall be subject to the exclusive jurisdiction of the courts at Delaware.
- The Clause of this Agreement shall survive expiry or earlier termination of this Agreement.
CONFIDENTIALITY AND INDEMNIFICATION
- For the purpose of this Agreement, Confidential Information shall mean technical, financial and commercial information and data relating to a Party’s or its affiliates’ respective businesses, finances, planning, facilities, products, techniques and processes and shall include, but is not limited to, discoveries, ideas, concepts, know-how, terms and conditions of this Agreement, business methods, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, marketing plans, employee and/or customer data and other technical, financial, commercial or such sensitive information and intellectual properties, whether in written, oral or other tangible or intangible forms which a Party would not have been exposed to but for this Agreement.
- Parties acknowledge and agree that in connection with this Agreement, each party will have access to Confidential Information of the other party and hereby agrees not to disclose any such Confidential Information to any third party and not to use any such Confidential Information for any purpose other than as strictly required for performance under this Agreement. All such Confidential Information is and shall remain the exclusive property of the disclosing party and no license shall be granted or implied with respect to such Confidential Information by reason of the other party’s access to such Confidential Information.
- Each party shall undertake to ensure that the obligations mentioned herein shall be informed and enforceable against all its employees, agents, sub-contractors, assignees who have access to Confidential Information.
- Exclusions: The receiving party shall be relieved of the obligations of confidentiality specified herein to the extent any such Confidential Information: (a) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the receiving party; (b) which the receiving party can prove, was known to it, without restriction, at the time of disclosure; (c) is disclosed by the receiving party with the prior written approval of the disclosing party; (d) the receiving party can prove was independently known by the receiving party without any use of the disclosing party’s Confidential Information and by employees or other agents of the receiving party who have not had access to any of the disclosing party’s Confidential Information; or (e) becomes known to the receiving party, without restriction, from a source other than the disclosing party without breach of any confidentiality agreement by the receiving party and otherwise not in violation of the disclosing party’s rights.
- Either party may disclose the Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- Injunctive Relief: The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of any Confidential Information and that the parties shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper.
- Customer may provide, or Qustn may solicit, input regarding the Service, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Service or any other Qustn site, service or product and the like (collectively “Feedback”). In order for Qustn to utilize such Feedback, Customer hereby grants to Qustn a non-exclusive, perpetual, irrevocable, worldwide, royalty-free license, with the right to sublicense to Qustn’s licensees and customers, under Customer’s relevant intellectual property rights, to use, publish, and disclose such Feedback in any manner Qustn chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of Qustn’s and its sublicensee’s products or services embodying Feedback in any manner and via any media Qustn chooses, without reference to the source. Qustn shall be entitled to use Feedback for any purpose without restriction or remuneration of any kind with respect to Customer and/or Customer’s representatives. Customer acknowledges that the information related to the Service disclosed by Qustn under this Agreement is only intended as possible strategies, developments, and functionalities of the Service and is not intended to be binding upon Qustn to any particular course of business, product strategy, and/or development.
- Indemnification: Customer shall indemnify, defend and hold harmless Qustn, its officers, directors, employees and agents, from and against all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees), arising from Customer’s breach of any of its obligations under this Agreement. The indemnification rights of Qustn under this Agreement are independent of, and in addition to, such other rights and remedies it may have at law or in equity or otherwise, including the right to seek specific performance, rescission, restitution or other injunctive relief, none of which rights or remedies shall be affected or diminished thereby.Under no circumstances shall either party be liable to the other party for any indirect, incidental, consequential, special or exemplary damages arising from the subject matter of this Agreement.
- This Clause shall survive the expiry or earlier termination of this Agreement.
- Subject to receipt by Qustn of all payments required to be made hereunder by the Customer, all the content generated and posted by the Customer on the Platform during the Term pursuant to this Agreement will be Customer’s property exclusively and Qustn shall have no right or ownership on the same. In this regard, the Customer warrants that the content uploaded by the Customer on the Platform shall not in any manner be illegal, promote terrorism, be abusive or violative of any applicable law, etc. and in the event that any such data is uploaded on the Platform, Qustn shall have the right to suspend the Services and/or report about the same to the appropriate authorities. Further, Qustn reserves the right in its sole discretion to discontinue displaying any content on the Platform, if (a) displaying of such content becomes, at any time after publication, a violation of applicable law(s); or (b) is, in the opinion of the parties, likely to create any controversy, public unrest and/or bring disrepute to Qustn and/or the Customer.
- The Parties agree that QTPL shall own all digital & intellectual property rights to the Platform and content generated thereon except the content generated and posted by the Company on the Platform. It is further clarified that QTPL shall also be entitled to use such content/data in any manner as it deems fit, subject always to its confidentiality obligations hereunder. Such content/data shall, however, to the extent relating to the Company or its End users be made available to the Company subject to the Company having adhered to its payment obligations hereunder.
- The Customer hereby warrants that the provisioning of the Supporting Services by the Customer in accordance with the Agreement will not infringe any intellectual property rights held by any third party. The Customer will not use any third party materials, idea, art work, design, logo or any other intellectual property, for providing Supporting Services under the Agreement, without prior written approval of such third party. The rights mentioned under the first Clause of Ownership above shall always be subject to rights of such third party.
- In no event shall Qustn be precluded, whether during or after the Term, from independently developing for itself, or for others, anything, whether in tangible or non-tangible form, which is competitive with, or similar to, the Services (including the Platform and content services). In addition, all software applications, databases, computer programs (including source code and object code for any such programming), and executable code (collectively “Code”) as well as other systems, methods and creative content in existence prior to the Agreement, any concept, know-how, techniques, skill and experience, image, animation, data, design, graphics created during the performance of Service, and all Code developed or provided by Qustn hereunder not incorporating all or part of any materials provided by the Customer and without use of Customer’s proprietary information, which is capable of reuse shall remain sole and exclusive property of Qustn.
- This Clause shall survive the expiry or earlier termination of the Agreement.
The Customer understands and agrees that by allowing the Customer to post content on the Platform, Qustn does not and shall not be deemed to have guaranteed the authenticity of such content and Qustn hereby specifically disclaims any representation or warranties of any kind in relation to the content posted by the Customer on the Platform, including any personal information in relation to the End users. Except for the express warranties set forth in this Agreement, and to the extent permissible by applicable laws, Qustn disclaims any other representations or warranties of any kind, express or implied, with respect to the Platform or the functionality, performance or results of use of the same. The Platform and Services are provided by Qustn to the Customer as per the terms of Agreement. The Customer acknowledges that in the case of third party services obtained directly by the Customer in relation to anything contained herein, the Customer will not look to Qustn for any loss, claims or damages arising from or related to the provision of such third party services, provided that such loss, claims or damages cannot be, in any way, attributable to any act/omission of Qustn.
Each party represents and warrants in relation to itself to the other party that:
- in case of an entity, it is validly incorporated, in existence and duly registered under the laws of its jurisdiction and has full power to conduct its business as conducted at the date of this Agreement;
- it has full capacity and all necessary permissions, consents and licences to enter into and to perform its obligations under the Agreement;
- the execution of the Agreement does not contravene the provisions of any applicable law or agreement or document to which it may be or may have been a party;
- it shall not, in rendering its obligations under the Agreement, violate the intellectual property rights of any third party;
- upon execution of the Agreement, the Agreement shall be legally binding and shall be legally enforceable against it; and
- it will provide such co-operation as the other party reasonably requests in order to give full effect to the provisions of the Agreement.
- The Customer warrants in relation to itself to Qustn:
- compliance with the Agreement by it as well as the End users; and
- the accuracy, quality and legality of the information provided and the way in which the data was made available by the Customer to Qustn in both the Platform and in the interactions that took place with staff at Qustn. In particular, the Customer assumes full responsibility for the accuracy and truthfulness of the information provided to Qustn and ensures that all the information provided, including any text, graphics, data, images, sounds, are lawfully available, and do not violate any law, copyright, trademark, patent or other rights of third parties arising from law, contract or custom. Customer further undertakes to indemnify Qustn for any claim of compensation and / or damages claimed by third parties as a result of the publication of these materials.
- The Customer agrees:
- to prevent access / unauthorized use of the Service and immediately notify Qustn of any possible access/unauthorized use;
- that it will use the Services in compliance with the directives made by Qustn, and in any case, in a manner consistent with applicable laws and regulations;
- that it will make the Services available only to the End users under their own responsibility;
- that it will not use the Services to store, process or transmit material illegitimately and / or illegal (software or anything else potentially dangerous, viral or malicious) or disclose material that violates the privacy / copyright of any third party, or any other kind of material deemed inappropriate by Qustn;
- that it will not use the Services to store, process or transmit any malicious Code;
- not to interfere with or undermine the integrity and performance of the Services or information contained in such third-party services;
- not to make unauthorized access to the Services or related to these systems and networks; and
- that it shall abide by all applicable local, state, national or foreign laws, rules, regulations or treaties in connection with Customer’s use of the Services including, without limitation, those related to data privacy, communications, SPAM communications, or the transmission and storage of technical or personal data.
- It is expressly forbidden to the Customer to sell to third parties, in whole or in part, the rights arising from the Agreement without the prior written consent of Qustn, under penalty of ineffectiveness.
- Qustn constantly updates their applications and implements all the techniques so that they are protected from cyber-attacks and intrusions (software update, protective side code, firewall, backup, and network monitoring service). Activities such as check of the application by companies outside intrusion and certification tests are not included in the offer and must be ordered and quoted separately.
- In handling this information, accuracy and precision are guaranteed in ensuring integrity and quality of the process. In the event of any doubt or question, you can contact Qustn directly through the contact form on the website.
- Qustn does not collect or store any financial data of any Customer and/or the End users and any and all liabilities in respect of collection, use, dissemination, disclosure etc. of any financial data of any Customer and/or the End users is specifically disclaimed by Qustn. Provided however that Qustn shall be collecting, storing and using the password created by the Customer and the End users for accessing the Platform and the Customer and End users hereby consent to the same. Collection, storage, use and any other action by Qustn in relation to such password shall be in accordance with applicable laws including the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011.
Qustn is committed to an administrative, physical and technical safeguard to ensure the security, confidentiality and integrity of Customer data, and not change them unless specifically requested in writing by the Customer. Qustn also is committed to you and to the extent possible, to not access the Customer data, except to the extent required for the proper delivery of Services and ensuring compliance with its rules and regulations, including actions to prevent technical problems (on request, for example, concomitantly with issues related to technical support).
- Notices: Any notice or other communication that may be given by one party to the other shall always be in writing and shall be served by email at the e-mail addresses provided by each party.
- Assignment: The rights and obligations of each party under the Agreement shall not be assigned by it to any third party without express written consent of the other party and any attempt to assign the Agreement otherwise shall be void.
- Force Majeure: No party shall be liable to the other if, and to the extent, that the performance or delay in performance of any of its obligations under the Agreement is prevented, restricted, delayed or interfered with due to circumstances beyond the reasonable control of such party, including but not limited to, Government legislations, fires, floods, explosions, epidemics, accidents, acts of God, wars, riots, terrorist attacks and/or acts of Government. The party claiming an event of force majeure shall promptly notify the other parties in writing, and provide full particulars of the cause or event and the date of first occurrence thereof, as soon as possible after the event and also keep the other parties informed of any further developments. The party so affected shall use its best efforts to remove the cause of non-performance, and the parties shall resume performance hereunder with the utmost dispatch when such cause is removed. The parties agree that in the event that a Party is prevented by an event of force majeure from performing its obligations under the Agreement for a period of 45 (forty five) days or above, the other party shall have the right to summarily terminate the Agreement by serving a written notice on the party.
- Amendment: No modification or amendment of this Agreement and no waiver of any of the terms or conditions hereof shall be valid or binding unless made in writing by all the parties.
- For the Additional Fees, Qustn shall raise an invoice within 3 (three) working days from the beginning of every month for the charges related to immediate previous month and the Customer make such payment within 7 (seven) days of raising the invoice.
- Any delayed payment will carry an interest of  % (eighteen percent) per annum.
- Payment can be made by all major credit cards. Please check while making the purchase.
- Should there be any disputed charges in the invoice, the Customer shall provide a written notice to Qustn in this regard within 5 (five) working days of invoice being made available to the Customer. Qustn will, upon receipt of such notice, analyse such discrepancy and if found to be correct, take necessary action to rectify the discrepancy. Provided however that if the Customer fails to bring any such discrepancy to the notice of Qustn in accordance with the timelines provided above, no claims in relation to such discrepancy shall, thereafter, be entertained by Qustn and the Customer shall be required to pay the sum in accordance with terms of this Agreement.
- Each party undertakes to indemnify and to hold the other party harmless against any and all losses, expenses and increases in costs incurred by such other party as a consequence of default on the part of the party in discharging its obligations for payment of any taxes, customs duties, levies and other charges for which it is responsible under this Agreement and/or in law.
- In case of change in taxation laws due to any amendment, insertion, overruling or substitution of any provision or enactment of any new tax laws which would have an impact on the transaction, whether due to tax compliance, statutory requirement, disclosure etc. each party shall provide full support by providing requisite information / documents / details / certification to the other party to meet out its statutory requirements or compliances or disclosures as required by the amended tax laws.
- Each party is responsible for and will pay all taxes it is legally obligated to pay which are incurred or arise in connection with or related to the transactions contemplated under this Agreement.
- Fees and other charges described in this Agreement do not include federal, state or local sales, VAT, GST, foreign withholding, use, property, excise, service, or similar taxes now or hereafter levied, all of which shall be for Customer’s account.