"TERMS OF ACCEPTANCE" OR "AGREEMENT"
www.toppr.com (the "Website") is an online portal, owned and maintained by Haygot Education Private Limited ("Haygot", "Company", "Us", "We" or "Our"), a private limited company incorporated in India, for imparting education in relation to preparation of entrance exams for engineering colleges and institutions in India through digital modules.
Haygot wishes to retain your services for content development ("Services"), subject to the terms and conditions, obligations, representations, warranties and agreements contained herein ("Agreement"). You will be deemed to have accepted the Agreement if you register on community.toppr.com on the Website.
Under the Agreement, you will be referred to as a 'Service Provider' and each of Haygot and Service Provider, as a "Party" and collectively, the "Parties".
- Service Provider shall provide such Services to Haygot, as may be notified to the Service Provider by Haygot in writing, or by entering into a statement of work in such form as provided by Haygot. No such notification or statement of work will be binding on either Party until it has been agreed in writing or executed by authorized representatives of both Parties (as may be applicable).
- Service Fees. Service Provider' fees for the Services ("Service Fees") will be paid as per Company policy, which may change from time to time.
- Payments. All amounts owed to Service Provider under this Agreement will be payable within 30 (thirty) business days of invoice date subject to completion of Services under the relevant SOW, unless otherwise agreed by the Parties.
- Taxes. Haygot shall be entitled to withhold from payments to Service Provider such amounts required to be withheld under the applicable tax laws in force at the time of payment, if any, and no other amounts.
- General Obligations. Except as otherwise expressly provided herein, all information, data, materials, or technology communicated or provided by Company (the "Disclosing Party"), to the Service Provider (the "Receiving Party") in connection with this Agreement that was identified or marked as being confidential or proprietary to the Disclosing Party or that the Receiving Party knew, or under the circumstances would reasonably be expected to know, was confidential or proprietary to the Disclosing Party including registration details of the Service Provider (such as user ID and password) on the Website, (collectively, "Confidential Information") will be used by the Receiving Party only for purposes of this Agreement, and no such Confidential Information will be disclosed by the Receiving Party without the prior written consent of the Disclosing Party, except as may be necessary in connection with the performance of the Services or in order to comply with a valid court order or subpoena.
- The Receiving Party will exercise at least the same level of care to protect the Disclosing Party's Confidential Information as it exercises to protect its own confidential information of a similar nature, but in no event less than reasonable care. If the Receiving Party receives a valid court order or subpoena requiring it to disclose the Disclosing Party's Confidential Information, the Receiving Party will provide notice to the Disclosing Party of such demand as soon as reasonably possible under the circumstances in order to give the Disclosing Party an opportunity to prevent or limit the scope of such disclosure. Disclosing Party's Confidential Information is and will remain the sole and exclusive property of the Disclosing Party, notwithstanding any disclosure made to the Receiving Party during the term of this Agreement.
- Exceptions. Confidential Information does not include information that (i) is or becomes generally available to the public through no fault of the Receiving Party; (ii) was lawfully known to the Receiving Party or had been lawfully possessed by the Receiving Party prior to registration by the Service Provider on the Website; or (iii) is independently developed by the Receiving Party without reference to or use of the Confidential Information of the Disclosing Party.
- Without limiting the other provisions, Receiving Party will retain all right, title and interest in and to, and will be free to use, subject to the confidentiality obligations set forth in this Agreement, the ideas, concepts, methodologies, processes and know-how which are developed or created by such party in connection with this Agreement, and may be retained by such party or by the employees (if applicable) of such party in intangible form only (without conscious effort to commit to memory principally for the purpose of satisfying this requirement), and which do not reference or use (i) any confidential information of Haygot (ii) any proprietary software, information or other development tools of Haygot.
- Proprietary Rights
- All rights, title, ownership and interest in and to the content, materials, courseware, and deliverables created, developed or provided by the Service Provider ("Content") in connection with the Services provided to Haygot under this Agreement, including all intellectual property rights related to each of the foregoing shall solely subsist with Haygot under 'work for hire' doctrine.
- Company is the owner and/or the licensee of all the trademarks, logos or other intellectual property on the Website.
- Term and Termination
- Term. This Agreement will remain in effect until terminated by the Service Provider or Haygot in accordance with this Clause 5.
- Termination for cause. If either Party materially breaches any of its duties or obligations hereunder, including the obligation to pay any amounts due under this Agreement, and such breach is not cured, or the breaching Party is not diligently pursuing a cure to the non-breaching Party's sole satisfaction, within thirty (30) days after written notice of the breach and at the time of the termination notice, then the non-breaching Party may terminate this Agreement by written notice to the other Party.
- Termination without cause. The Company shall also have right to terminate the Agreement any time (without cause) by 30 (Thirty) days written notice to the Service Provider.
- Either Party will have the right to terminate this Agreement with immediate effect if: (i) the other Party becomes the subject of a bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, (ii) the other Party makes an assignment for the benefit of creditors, (iii) the other Party does not pay its third party debts substantially as they become due or admits in writing its inability to pay its debts when due, and/or (iv) an application for a receiver, trustee, or custodian is made by anyone for the other Party.
- Survival. Termination of this Agreement shall not affect those provisions hereof that by their nature are intended to survive such termination. Further, after termination of this Agreement, and at any time during its continuance, neither Party shall knowingly take any action that has the effect of disparaging the other Party.
- Warranties of the Service Provider
- Service Provider hereby represents and warrants to and for the benefit of Haygot that:
- it has all requisite power and authority to execute this Agreement and to perform its obligations hereunder
- it is above 18 (Eighteen) years of age (applicable to Service Provider who is an individual);
- Content shall be wholly an original creation of the Service Provider and shall not infringe upon any intellectual property rights of any third person or violate any applicable laws; and
- Service Provider will perform its obligations and fulfill its responsibilities under this Agreement in a manner that complies with all applicable laws.
- The Service Provider agrees to indemnify, and keep indemnified, the Company and its officers, directors, agents, employees, consultants or affiliates against any and all liability, loss, fines, penalties, fees, damages, costs, amounts and expense (including without limitation attorneys' fees) arising out of any obligations, claims, actions, suits, judgments, orders, litigations, enforcements and/or proceedings arising from the breach of any or all of the representations and warranties provided by the Service Provider under this Agreement, or the unauthorised use or infringement by the Service Provider of the intellectual property of any third party for or in relation to the Services provided to Haygot under this Agreement, or breach of any terms and conditions imposed on or the obligations of the Service Provider as contained in this Agreement.
- Governing Law, Jurisdiction and Dispute Resolution
- Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and resolved by arbitration in Mumbai in accordance with the Indian Arbitration and Conciliation Act, 1996. The arbitration tribunal shall consist of 1(one) arbitrator jointly appointed by the Parties. If the Parties fail to agree on appointment of such arbitrator, each Party shall appoint 1(one) arbitrator each and the 2 (two) arbitrators so appointed shall be entitled to appoint the third arbitrator who will act as umpire of the arbitral tribunal.
- Subject to the above, the courts at Mumbai, India shall have exclusive jurisdiction on the matters arising from or in connection with this Agreement. This Agreement shall be governed by and construed under the laws of India.
- The language of the arbitration shall be English. The arbitrator shall be entitled to award costs of the arbitration. Subject to the aforesaid, each Party to any arbitration shall bear its own expense in relation thereto, including but not limited to such Party's attorneys' fees and the expenses and fees of the arbitrator shall be borne equally by the parties to the dispute. The arbitrator shall reach and render a reasoned decision in writing.
- Equitable Relief. In the event of any actual or threatened breach by a Party, the other Party may be entitled, in addition to such other legal or equitable remedies which might be available, to seek an immediate injunction in a competent court of jurisdiction enjoining any breach or threatened breach of this Agreement. It is clarified that nothing in Section 8 is intended to prevent either Party from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any arbitration. Each Party shall bear its own attorneys' fees and costs in proceeding brought pursuant to this paragraph, unless such court determined otherwise.
- Severability. If any provision of this Agreement should be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby, and such provision will be deemed restated to reflect the original intention of the Parties as nearly as possible in accordance with applicable law.
- Assignment. Service Provider may not assign or transfer this Agreement without the prior written consent of the Company. Any purported assignment or transfer of this Agreement by the Service Provider without the Company's consent will be null and void.
- Notices. Any notice or other communication given to Haygot pursuant to this Agreement must be in writing and (a) delivered personally or by courier, or (b) sent by electronic mail transmission, or (c) sent by registered mail with acknowledgment due, postage prepaid, as follows:
Address:2nd Floor, A Wing, Supreme Business Park, Hiranandani, Powai, Mumbai - 400076, India
Attn: Zishaan Hayath
Haygot may provide any notice to Service Provider under this Agreement by: (i) posting a notice on the Website; or (ii) sending a message to the email address then associated with Service Provider's account. Notices We provide by posting on the Website will be effective upon posting and notices We provide by email will be effective when We send the email. It is responsibility of the Service provider to keep its email address current. Service Provider will be deemed to have received any email sent to the email address then associated with its account when We send the email, whether or not it actually receives the email.
- Relationship of the Parties. The Parties shall act in all matters pertaining to this Agreement as independent Parties. Neither Party shall have any authority hereunder, express or implied, to contract on behalf of the other Party with any Person and shall not hold itself out as having such powers or authority. The Agreement is being entered into on a principal to principal basis and does not and shall not be deemed to make either Party an agent, partner or joint venture partner of the other or any analogous relationship. Neither Party shall act or attempt to act or represent itself, directly or by implication, as an agent of the other Party or its affiliates or in any manner assume or create, or attempt to assume or create, any obligation (binding or otherwise) on behalf of, or in the name of, the other Party or its affiliates.
- Non-Solicitation of Personnel. Each Party shall not, at any time during the term of this Agreement and for a period of Six (6) months thereafter, hire employees of the other Party involved with the Services contemplated in this Agreement (including any person who was an employee of the other Party at any time within six (6) months prior to the date of hire).
- Force Majeure. Neither Party will be liable for any default or delay in the performance of its obligations (other than payment obligations) under this Agreement if such default or delay is caused, directly or indirectly, by any of the following: fire, flood, earthquake, elements of nature, or acts of God or terror; riots, civil disorders, rebellions, or revolutions in any country; strikes, lockouts, or labor difficulties; any failure in electrical or air conditioning equipment or third-party telecommunications equipment or links; unavailability of parts; or any other similar cause beyond the reasonable control of such Party ("Force Majeure"). A Party whose performance is prevented, restricted, or interfered with by reason of a Force Majeure condition shall be excused from such performance to the extent of such Force Majeure condition so long as such Party provides the other Party with prompt written notice describing the Force Majeure condition and takes all reasonable steps to avoid or remove such causes of nonperformance and immediately continues performance whenever and to the extent such causes are removed. If, due to a Force Majeure condition, the scheduled time of delivery or performance is or will be delayed for more than fifteen (15) days after the scheduled date, the Party not relying upon the Force Majeure condition may terminate, without liability to the other Party, the affected Services under the Agreement that have been delayed.
- Waiver. No term or provision hereof will be deemed waived, and no variation of terms or provisions hereof shall be deemed consented to, unless such waiver or consent be in writing and signed by the Party against whom such waiver or consent is sought to be enforced. Any delay, waiver, or omission by Service Provider or Haygot to exercise any right or power arising from any breach or default of the other Party in any of the term, provisions, or covenants of this Agreement shall not be construed to be a waiver by Service Provider or Haygot of any subsequent breach or default of the same or other terms, provisions, or covenants on the part of the other Party.
- Entire Agreement. This Agreement constitutes the entire and final and exclusive statement of the agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous discussions, communications, negotiations and agreements, written or oral, with respect to the subject matter hereof.
- Amendment. The Agreement is subject to change at Our discretion at any time, without any prior notice or obligation to notify the Service Provider, however We may at our discretion notify the Service Provider in accordance with Clause 9.4. It is the responsibility of the Service Provider to check the Website regularly for amendments to this Agreement.
- Disclaimer. The Company does not makes any warranties that the Website shall always be running and free of downtime, or that it shall be error-free, or any representations regarding the availability and performance of its Website or any of the websites to which links may be provided in the Website. Our site may be temporarily unavailable at any point of time due to maintenance, up-gradation or any other reason. We reserve the right to accept or reject registrations on the Website.