Master Services Agreement
This Agreement updated on February 10, 2021.
This Master Services Agreement (“Agreement”) governs the access and use of Topcademi for Business and Topcademi for Government.
1. Definitions. As used in this Agreement, the following terms have the meaning set forth below.
a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
b) “Customer” means the party entering into an Order Form with Topcademi, or otherwise signing up to use the Services.
c) “Courses” means the online courses provided by Topcademi as part of the Services.
d) The “Fees” means the amounts payable by Customer to Topcademi for access to the Services.
e) “Order Form” means the ordering document mutually executed by Topcademi and Customer, including electronic orders submitted by Customers purchasing the Team Plan version of the Services, specifying: (1) the Fees payable by Customer to Topcademi for provision of the Services, (2) the duration of the Services to be provided by Topcademi to Customer, (3) the number of Users authorized to access the Services, and (4) other billing and payment information regarding Topcademi’s provision of the Services to Customer.
f) “Personal Data” means any personal data that Customer submits into the Services.
g) The “Services” means Topcademi for Business or Topcademi for Government, a platform for online education provided by Topcademi that includes the Courses.
h) “Topcademi” means Topcademi, A Division of Vishwayogee Edutech Pvt. Ltd., or one of its affiliates.
i) “Users” means the employees and contractors that Customer authorizes to access and use the Services.
2. Provision of the Services. Topcademi agrees to make the Services available to Customer and its Users pursuant to the terms of this Agreement, and as specified in an Order Form. In the event that Customer is purchasing a subscription to the “Team Plan” version of the Services, then Customer acknowledges and agrees that certain features generally available in the Services may not be available to Customer.
3. Restrictions. Customer shall not, nor shall it permit its Users to:
a) Copy, distribute, create derivative works, hack, or modify the Services or any of the Courses,
b) Input any inappropriate, infringing, offensive, racist, hateful, sexist, pornographic, defamatory or libellous content into the Services,
c) 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 Topcademi,
d) Use the Services for benchmarking or any other similar competitive purposes, or in order to build a competitive product to the Services,
e) Share login access to the Services among multiple individuals, transfer a User license (except in connection with a change of job assignment or termination of employment), or otherwise permit any party other than the Users to use the Services,
f) Introduce any computer code, file, or program that may damage the Services,
g) Use the Services in any manner that is unlawful or that infringes the rights of others, or
h) Permit any individual that is under the age of 13 years old to use the Services.
4. Violations of Restrictions. In the event that Topcademi determines that Customer or any of its Users has violated the restrictions set forth in Section 3 above, Topcademi reserves the right to terminate or suspend access to the Services for Customer or the relevant Users.
5. Fees. 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 by Indian living in India in Indian Rupees and by Foreign Nationals in U.S. dollars. In the event that Customer is late in making payments, then Topcademi 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.
6. Taxes. The Fees and other amounts required to be paid hereunder do not include any amount for taxes, including any applicable sales, use, excise, or other transaction-based tax ("Taxes") or levy (including interest and penalties). Customer agrees to pay all amounts payable under this Agreement free and clear of all deductions or withholdings or rights of counter claim or set-off, unless required by law. If a deduction or withholding is so required, then Customer agrees to pay such additional amount as to ensure that the net amount received and retained by Topcademi equals the full amount that Topcademi would have received had the deduction or withholding not been required. Customer shall reimburse Topcademi and hold Topcademi harmless for Taxes or levies to which Topcademi is required to collect or remit to applicable tax authorities. This provision does not apply to Topcademi's income, franchise and employment taxes or any taxes for which Customer is exempt provided Customer has furnished Topcademi with a valid tax exemption certificate. To the extent a taxing authority changes their position or taxing policy requiring Topcademi to collect a Tax or levy from Customer, Topcademi will add the Tax or levy to the Customer invoice.
a) 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. Confidential Information will not, however, include any information that: (1) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party, (2) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party, (3) is already in the possession of the Receiving Party at the time of disclosure by the Discloser, (4) is obtained by the Receiving Party from a third party without a known breach of the third party’s obligations of confidentiality, or (5) is independently developed by the Receiving Party without use of or reference to the 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.
b) 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.
c) Processing of Personal Data. Notwithstanding the provisions of this section, Customer agrees that Topcademi may process Personal Data as necessary for: (1) storage and other processing necessary to provide, maintain, and update the Services, and (2) the provision of customer and technical support to Customer regarding the Services. 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 Topcademi a data protection agreement prior to providing any Personal Data to Topcademi.
8. Term and Termination.
a) 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. Unless otherwise specified in an applicable Order Form, and with the exception of Customers on the Topcademi for Business Team plan that have disabled auto-renewal within the Services, Order Forms will renew automatically for additional terms of one year, unless terminated by either party by giving at least 30 days written notice prior to the end of the then-current term.
b) 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 Topcademi, then Customer will be entitled to receive a pro-rated refund for Services not rendered past the termination date. Sections 5-11 and 15-18, as well as any accrued rights to payment, will survive any termination or expiration of the Agreement.
9. WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE AGREED UPON BY THE PARTIES, TOPCADEMI PROVIDES THE SERVICES AS-IS AND DISCLAIMS ALL WARRANTIES RELATING TO THE SERVICE, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES RELATING TO MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AVAILABILITY.
10. 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 TOPCADEMI IN THE 12 MONTHS PRIOR TO THE DATE THE RELEVANT CLAIM AROSE.
a) Topcademi's Indemnification Obligations. Topcademi agrees to defend Customer for all third party claims arising from an allegation that Customer’s use of the Services as permitted under this Agreement infringes upon a third party’s intellectual property rights (“Claim Against Customer”), and indemnify Customer from any damages, reasonable attorney fees, and costs incurred by Customer as a result of a Claim Against Customer. In the event that the Services become subject to a third-party intellectual property claim, or Topcademi believes that the Services will become subject to such a claim, then Topcademi may elect to: (1) modify the Services so that they are no longer allegedly infringing, (2) obtain a license for Customer’s continued use of the Services, or (3) terminate this Agreement or any applicable Order Forms, and provide Customer a pro-rated refund for Services not rendered past the termination date. This section states Topcademi’s sole liability to the Customer with respect to a claim that any part of the Services infringes the intellectual property rights of a third party.
b) Customer's Indemnification Obligations. Customer agrees to defend Topcademi for all third-party claims arising from Customer’s violations of Sections 3(a) and 3(b) of this Agreement (“Claim Against Topcademi”), and indemnify Topcademi from any damages, reasonable attorney fees, and costs incurred by Topcademi as a result of a Claim Against Topcademi.
c) Requirements for Indemnification. In order for the indemnification obligations hereunder to apply, the party seeking indemnification must: (1) promptly tender a claim for indemnification, (2) allow the indemnifying party sole control of the defense or settlement of the underlying claim, and (3) reasonably assist with any defense or settlement of the underlying claim at the indemnifying party’s request and expense.
12. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. Upon learning of any violation of this restriction, Customer agrees to promptly notify Topcademi’s legal department, by emailing [email protected] or at [email protected].
13. Publicity. Customer grants Topcademi the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on Topcademi’s website and in other promotional materials.
14. 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, fire, cyclone, flood, civil disturbance, acts of terrorism or war, labour 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.
15. Assignment. Neither this Agreement nor any of the rights and licenses granted under this Agreement may be transferred or assigned by either party without the other party’s express written consent (not to be unreasonably withheld or delayed), except, however, that either party may assign this Agreement and all Order Forms under this Agreement without the other party’s consent to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any other attempt to transfer or assign this Agreement will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
16. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be deemed null and void, and the remaining provisions of this Agreement shall remain in effect.
17. Governing Law Venue, and Attorney’s Fees. This Agreement and any disputes arising under it will be governed by the Indian laws without regard to its conflict of International laws provisions, and each party consents to the jurisdiction and venue of the courts in Delhi, India. In the event of any dispute between the parties regarding the terms of this Agreement, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees.
18. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. 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 Topcademi 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.
19. Contracting Party, Governing Law, and Currency for Indian Customers. As of February 10, 2021, if Customer is located in India, then Customer is contracting with Topcademi – A Division of Vishwayogee Edutech Pvt. Ltd., under this Agreement. In such case, notwithstanding Section 17 above, 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, if Customer is located in India, notwithstanding Section 17 above, then 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. Notwithstanding Section 5 above, if Customer is located in India, then all fees payable by Customer will be in Indian Rupees.