1. WHO WE ARE
SmartQuest, which owns and operates the Sites, has its principal place of business at D/North 6, New Vrindavan Society, Range Hills Road, Shivajinagar, Pune – 411020. More information about SmartQuest and its network of Programs can be found at www.smartquest.co/contact-us
SmartQuest is mobile Microlearning and Sales Readiness Platform. We help empower training and development teams for large sales organisation with tools, analytics and advisory.
2. PERSONAL INFORMATION WE COLLECT
In General. we may collect and store any Personal information you enter on our website or provide to us in some other manner. Personal information is data that identifies you, or that can be combined with other information to identify or contact you, and includes (but is not limited to) your name, business or personal email address, job title, organization, organization's physical address, direct telephone number, photograph, and biographical details.
You are not obligated to provide us with any personal information, although you may need to provide some information to get a relevant assessment, submit a question, or engage in other transactions on our Site. We strive to limit the type of personal information that we collect to information that helps us accomplish our goal of providing first-class services to our customers.
Restricted Areas. If you access the Restricted areas of any of our Sites, we may collect additional information relating to your participation in Programs run by SmartQuest or its subsidiaries. We also may obtain information about your access to and use of research materials, decision-support tools, and other online and offline resources we offer.
Information from other sources. We also may periodically obtain both personal and non-personal information about you from other sources. Examples of information we may receive include updated contact information and additional demographic information. Please note that SmartQuest or its subsidiaries may have previously collected personal information relating to you at the time you or your organization enrolled in a Program run by SmartQuest or any of its subsidiaries, as well as in the course of allocating and issuing to you a unique ID and password to access the restricted areas of our Sites.
Information collected automatically. When you visit our website, we automatically collect and analyze certain information about your computer. This information includes but may not be limited to the IP address used to connect your computer to the Internet, information about your browser type and language, the date and time you are accessing our site, the content of any undeleted cookies that your browser previously accepted from us, and the referring website address.
- Cookies. When you visit our Sites, we may assign your computer one or more "cookies." A cookie is a small text file that contains information that can later be read by us to facilitate your access to our Sites and personalize your online experience. For example, whenever you sign into our Sites, we may record your user ID in a cookie file on your computer. If applicable, we may also record your password in this cookie file, if you checked the box entitled "Save this password for automatic sign-in." Also, through the use of a cookie, we may automatically collect information about your online activity on our Sites, such as the web pages you visit, the links you click, and the searches you conduct. Most browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies by visiting the Help portion of your browser's toolbar. If you choose to decline cookies, please note that you may not be able to sign in or use some of the interactive features offered on our Sites.
- Other Technologies. We may use standard Internet technology, such as Web beacons (also called clear GIFs or pixel tags), locally stored objects (often referred to as “flash cookies”) and other similar technologies, to deliver or communicate with cookies and track your use of our Sites and content presented via the Sites. We also may include web beacons in e-mail messages or newsletters to determine whether messages have been opened and acted upon. The information we obtain in this manner enables us to customize the services we offer and measure the overall effectiveness of our online content, advertising campaigns, and the products and services we offer through the Sites.
3. HOW WE USE THE INFORMATION WE COLLECT
In General. We use the information we collect about you for the following purposes:
- to respond to inquiries that you submit to us via the online "contact us" feature and determine which Programs and services will help you achieve your business goals;
- to send you information about our programs and services that you have requested from us;
- to administer your membership in any of our Programs and facilitate your access to and provide you with resources, decision-support tools, and other materials available to you;
- to attribute content that you make available through the Sites;
- to communicate with you about surveys, marketing, promotions, executive-oriented events, educational forums, and other exclusive opportunities offered by SmartQuest and its subsidiaries, partners, and affiliates, including information about other Programs in which you may be interested;
- for the purposes for which you provided the information;
- to customize the advertising and content you see, including the display of targeted advertisements;
- to engage in research and analysis in order to maintain, protect and improve our Programs and services, as well as develop new services;
- to generate anonymous and/or aggregated reporting;
- to enforce the legal terms that govern your use of the Sites;
- to enhance our network and our products and services; and
- to ensure the technical functioning of the Sites.
Utilization information. We may share information with our organizational Members about how their own employees use the Sites and the resources available to them through the Sites (e.g., how Member employees used certain features of the Sites, utilization trends, which features were most popular with the Member's employees.)
4. CHOICES ABOUT THE USE OF YOUR INFORMATION
We believe that it is important to give you the opportunity to choose how your personal information is collected and used. We will not use your personal information for any purposes other than those described in this Policy or any service-specific privacy notices without first obtaining your explicit consent to do so.
Mode of Communications: By sharing the information you consent for receiving communication through any medium of communication such as Email/SMS/Calls from SmartQuest. Furthermore, on submitting the number you confirm that the said number is not registered under Do Not Disturb / National Customer Preference Register and no complaint would be initiated. You also confirm that even if SmartQuest Member is registered with the telecom service provider under the category Do Not Disturb / National Customer Preference Register the Email/SMS/Calls from SmartQuest to the mobile number provided shall not be treated as promotional Email/SMS/Calls.
Marketing Communications: We hope you find value in the communications we provide, and we will respect your wishes not to receive marketing communications. Please note that we will continue to send you member services emails and other service-related communications regardless of any such request. These service-related communications are an integral part of the Programs to which you subscribe. We will not share your information and personal details with third parties for their own promotional or marketing purposes without giving you a choice about such sharing.
5. DISCLOSURES OF PERSONAL INFORMATION
We may share your personal information with other companies or individuals in the following instances:
- When we engage service providers and third-party agents to process personal information on our behalf. When we do so, we contractually require these service providers to implement adequate technological and organizational security and privacy measures before they can receive any personal information from us to ensure that your personal information will be appropriately protected and only used for the purposes of performing the services for us.
- For legitimate business purposes connected with the provision of goods, services, and benefits for customers of SmartQuest or its subsidiaries. Where information is shared with a third party for a legitimate business purpose, we will seek reasonable assurances from that third party that the personal information will be processed for legitimate reasons and appropriately protected.
- In response to subpoenas, court orders, or other legal process; to establish or exercise our legal rights; to defend against legal claims; or as otherwise required by law. In such cases we reserve the right to raise or waive any legal objection or right available to us.
- When we believe it is appropriate to investigate, prevent, or take action regarding illegal or suspected illegal activities; to protect and defend the rights, property, or safety of SmartQuest or its subsidiaries, our customers, or others; and in connection with our Terms of Service and other agreements.
- In connection with a corporate transaction, such as a divestiture, merger, consolidation, or asset sale, or in the unlikely event of bankruptcy.
We also may share aggregate or anonymous information with third parties, including advertisers, investors, and partners. Aggregate or anonymous information does not contain any personal information, and its use and disclosure is not subject to the terms of this Policy.
6. INTERNATIONAL TRANSFERS OF PERSONAL INFORMATION
We operate the Sites in India and, depending on your country of residence, the submission of personal information to our Sites may involve some transfer of personal information to India. You should be aware that privacy laws in the India, United States, Singapore, Australia, Germany, and the United Kingdom may not provide protections equivalent to those of your country of residence. We have taken steps to ensure that appropriate levels of protection necessary to maintain the security and quality of your personal information are in place and that any transferred data is processed only in accordance with this Policy.
7. ACCESS AND CORRECTION OF PERSONAL INFORMATION
In some cases, Members can directly access their online profiles and other personal details, enabling them to amend, update or add information by themselves at any time by logging into the relevant Program webpage.
You can also request access to any personal information that we hold about you and ask us to correct any personal information which may be inaccurate, except where the law requires otherwise. To access, correct or raise inquiries concerning your personal information in our possession, please email us at firstname.lastname@example.org or contact:
Privacy & Data Protection Officer
301, Tiara Spaces,
Above KFC Restaurant
Baner Mahalunge Road
Baner, Pune, MH-411045, India
8. INFORMATION SECURITY
We have implemented reasonable technical and organizational security measures to help protect against unauthorized access to or unauthorized alteration, disclosure, or destruction of personal information. Unfortunately, no data transmission over the Internet can be guaranteed to be entirely secure, and we assume no liability for any damage suffered by you caused by the interception, alteration, or misuse of information during transmission.
We make reasonable efforts to restrict access to personal information to employees, contractors, and agents who need to know that information in order to operate, develop, or improve our Programs and services. We subject our third-party agents to contractual controls to ensure that they apply suitable protections to any personal information they access or receive from us.
Please note that the effective security with respect to our Sites depends, in part, on you ensuring that any IDs and passwords that you have been issued by us are kept confidential and secure and that you adhere to the restrictions on password and ID-sharing set forth in our Terms of Service.
9. OTHER WEBSITES
To provide increased value to users of our Sites, we may provide links to other websites or resources that are not part of the network of Programs run by SmartQuest or its subsidiaries. We do not exercise control over these websites or their privacy practices, and any information you provide to those sites is subject to the Privacy Policies of those sites, and not this Policy.
Our Sites contain business-related content and are specifically aimed at and designed for use by adults. We do not knowingly solicit or collect personal information from or about individuals under the age of 18 years.
11. CHANGES TO THIS POLICY
This Policy may change from time to time. If we make material changes to this Policy, we will post any Policy changes on this page. If we feel it appropriate, we will provide a more prominent notice (including, for certain services, email notification). Your continued use of our Sites following such posts or notices will signal your acceptance of such changes.
Last Updated: May 13, 2014
© 2014 SmartQuest. All rights reserved.
In using the Site, including all Services and Materials available through it, you agree:
- Not to disrupt or interfere with the security of, or otherwise cause harm to, the Site, or any Services, Materials, system resources, accounts, passwords, servers, or networks connected to or accessible through the Site or any affiliated or linked websites;
- Not to upload, post or otherwise transmit through the Site any viruses or other harmful, disruptive or destructive files;
Not to create a false identity;
- Not to use or attempt to use another's account, password, service, or system without express authorisation from SmartQuest;
- Intentionally or unintentionally violate any applicable local, state, national or international law, or any regulations having the force of law.
SmartQuest may, but is not obligated to, monitor or review (i) any areas of the Site where users transmit or post user content, including but not limited to areas where Services are available, and (ii) the substance of any user content.
To the maximum extent permitted by law, SmartQuest will have no liability relating to user content arising under the laws of copyright, libel, privacy, obscenity, or otherwise.
Where use of the Site or certain Services of the Site require user registration, you will be required to provide certain registration information (the “Registration Data”).
In registering to use the Site, including all Services and Materials available through it, you agree to:
- Provide accurate, complete and up to date information about yourself as required by the Sites registration form.
- Maintain and update your Registration Data to keep it accurate, complete and up to date.
You are responsible for maintaining the confidentiality of your account and for all activities carried out using your account information. You agree to notify SmartQuest immediately of any unauthorised activity using your account information or if you suspect that the confidentiality of your account information has been compromised.
In using this Site and its Services, you expressly understand and agree that:
- The Site and the Services contained on it are provided on an “as is” and “as available” basis and that use of the Site and Services is at your own risk.
- SmartQuest disclaims all warranties of any kind, whether by express or implied, including, but not limited to the implied warranties or merchantability, fitness for a particular purpose and non-infringement.
- SmartQuest makes no warranties regarding the accuracy, reliability, quality or availability of service of any products, materials or services made available on the Site.
- Any damage to your computer or loss of data that results from the use of the Site or Services, or from the download of any material will be your sole responsibility and is done at your own discretion.
- No advice or information obtained from the Site or its Services, whether written or oral, shall create any warranty not expressly stated.
- Further, SmartQuest makes no warranty or condition that:
- - The Services will meet your requirements
- - The Services will be uninterrupted, timely, secure or error-free.
- - The results that may be obtained from the use of the Services will be accurate or reliable
- - The quality of any products, Services, information, or other material purchased or obtained by you through the Services will meet your expectations
- - Any errors in the software will be corrected.
To the extent not prohibited by applicable law, SmartQuest is not liable for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to, damages for loss of profits, revenue, goodwill, use, data, electronically transmitted orders or other economic advantage (even if SmartQuest has been advised of the possibility of such damages), however caused and regardless of the theory of liability, whether in contract (including fundamental breach), tort (including negligence) or otherwise, arising out of, or related to:
- The use or inability to use the Services;
- The cost of procurement of substitute goods and Services purchased or obtained or messages received or transactions entered into though or from the Services;
- Unauthorised access to or alteration of your transmissions or data;
- Statements or conduct of any third party on the Services or Site;
- Any other matter relating to the Services, including content you may download, use, modify or distribute from the Site.
You have the sole responsibility for adequate protection and backup of data and/or equipment used in connection with the Site and will not make a claim against SmartQuest for lost data, re-run time, inaccurate output, work delays or lost profits resulting from the use of content.
You agree to hold SmartQuest harmless from, and you covenant not to take any legal action against SmartQuest for any claims based on using the Site, whether in contract (including fundamental breach), tort (including negligence) or otherwise except where SmartQuest is prevented by law from making such exclusions or limitations.
The Services on this Site may provide links to other World Wide Web sites or resources. Because SmartQuest has no control over such sites and resources, you acknowledge and agree that SmartQuest is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that SmartQuest shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
These terms apply to the purchase of SmartQuest products and services as stated in a corresponding Order.
In these terms, the following words have the following meanings:
“Agreement” means the agreement for SmartQuest to supply Products and/or Services, incorporating these terms and the corresponding Order;
“Candidate” means any assessed individual (including a potential hire or an existing employee of the Company;);
“Company” means the party placing an Order using this Agreement as defined in an Order.
“Direct Customer” means a Company that is purchasing Products and/or Services to manage its own internal human resources; or an individual that is purchasing Products and/or Services for personal reasons
“Order” means a written or verbal order, which may be agreed in an electronic mail, consisting of a statement of work, change request form, price addendum or other order for Products and/or Services agreed between Company and SmartQuest;
“Output” means any physical reports SmartQuest produces and provides to Company (i) on Candidates or (ii) on a group of candidates or (iii) as a result of a consultancy project for Company.
“Product” means the product SmartQuest agrees to supply Company in an Order;
“Service” means the service SmartQuest agrees to supply Company in an Order, including online and consultancy services as further described in the Product and/or Services Schedule;
“SmartQuest” means the local SmartQuest entity supplying the Products and/or Services to Company
“SmartQuest” means SmartQuest, all SmartQuest affiliated companies, subsidiaries and its parent company “SmartQuest Capability Pvt. Ltd”
“SmartQuest Partner” means a Company or individual who purchases Products and/or Services from SmartQuest 1) to enable the Company's clients to manage their internal human resources under a partnering agreement with SmartQuest or 2) to use with third parties or resell solely as permitted uby SmartQuest
Headings are for ease of reference only. Any phrase with include, including, in particular or any similar expression will be construed as illustrative and will not limit the sense of the words following those terms. Use of a term defined in the singular tense also includes plural uses of such defined term. A reference to “writing” or “written” includes faxes or electronic mail unless specifically excluded by the parties in an Order.
2.1 Entire Agreement
The Agreement sets out the entire agreement between the parties relating to its subject matter and, except with any mutual confidentiality agreements in effect between the parties, overrides any prior correspondence or representations and all other terms and conditions. The parties acknowledge that this Agreement has not been entered into wholly or partly in reliance on, nor has either party been given any warranty, statement, promise or representation by the other or on their behalf other than as expressly set out in this Agreement.
SmartQuest reserves the right to change the pricing or offering for its generally available products and/or services. Orders are at all times subject to the pricing quoted by SmartQuest in such Order in accordance with this Agreement.
2.3 Offer & Acceptance
When Company places an Order for Products and/or Services it is deemed an offer to purchase such Products and/or Services subject to these terms. The Order will be deemed accepted by SmartQuest when: (i) SmartQuest countersigns such Order or (ii) when SmartQuest issues a written acknowledgement to Company, or (iii) upon delivery of the Products and/or Services to Company. Unless otherwise stated, a quotation SmartQuest provides to Company for Products and/or Services is valid for a period of 30 days from the date of the proposed Order.
Each Order contains a description of the Products and/or Services to be purchased. Any other descriptions provided by SmartQuest (including those contained in brochures) are solely for general information purposes and do not form part of the Agreement.
2.5 Delivery and Delivery Date
All Orders are deemed accepted upon delivery unless otherwise stated in the Order. Any delivery date stated in an Order is an estimate only unless otherwise expressly stated in a written Order.
2.6 Reasonable Assistance
Company or its agents will provide SmartQuest reasonable assistance required to facilitate delivery of Products and/or Services to Company. SmartQuest will have no liability to Company where failure or delay in the delivery of the Products and/or Services results from Company's act, omission or delay and/or those working on Company's behalf, in providing such assistance.
The price for Products and/or Services is stated in the Order. The price is exclusive of any value added, sales or other taxes which will be charged at the applicable rate at the time of invoice. SmartQuest reserves the right to withdraw a discount if any fees owed under a completed Order are not paid by their due date.
Unless otherwise agreed in writing, payment for SmartQuest Products and/or Services is due without deduction, demand or set off or withholding within 30 days after the date of the invoice. If Company is required to withhold tax on any amount payable to SmartQuest under this Agreement, Company will deliver to SmartQuest the original tax receipt or other proof of payment. Each party shall provide such reasonable support as necessary in connection with any exemption or reduction of, or the contestation of or the defence against, any taxes. In the event of late or non-payment, SmartQuest may suspend the provision of Products and/or Services and/or charge Company default interest at a rate of 1.5% per month accruing on a daily basis from the due date for payment until the date on which payment is made and the costs in pursuing a debt recovery procedure.
If Company reasonably demonstrates that there is a defect in the materials or workmanship of Products and/or Services have not been performed with reasonable care and skill in accordance with good industry practice, then SmartQuest will perform the following:
(a) repair or make good such defect at no charge to Company; or
(b) replace such Products and/or re-perform such Services; or
(c) issue a credit note to Company for the whole or part of the price of such Products and/or Services as appropriate.
This “Warranty” is subject to certain conditions as stated below.
The Warranty does not apply unless Company notifies SmartQuest in writing of the alleged defect within 7 days of the time when Company discovers or ought to have discovered the defect and in any event within 6 months of the date of delivery of SmartQuest's Products and/or 1 month of the date of SmartQuest's performance of Services. The Warranty also does not apply:
(a) in respect of any defect arising from fair wear and tear, wilful damage, Company's negligence, abnormal working conditions, misuse or alteration of SmartQuest Products without SmartQuest approval; or
(b) if the total price for SmartQuest's Products and/or Services has not been paid by the due date for payment
(c) if Company cannot provide SmartQuest evidence of the claimed defect or problem such that SmartQuest can reproduce the claimed defect.
4.3 Other Warranties
The express warranties set out in the Agreement are the only warranties given by SmartQuest and are in lieu of all other warranties, conditions, undertakings, terms and obligations implied by statute, common law, trade usage, course of dealing or otherwise, all of which are hereby excluded, to the fullest extent permitted by governing law, from the Agreement.
5.1 Unlimited Liability
Nothing in these terms will exclude or limit either party's liability for (a) death or personal injury caused by its negligence or (b) for fraud or fraudulent misrepresentation.
5.2 Consequential and other losses
To the extent permitted by applicable law, neither party will be liable for any of the following losses or damage (whether or not such losses or damage were foreseen, direct, indirect foreseeable, known or otherwise): (a) loss of profits (whether actual or anticipated), (b) loss of revenue, (c) loss of anticipated savings, (d) loss of business, (e) loss of opportunity, (f) loss of goodwill, or (g) any indirect, special or consequential loss or damage howsoever caused. To the extent all or some portion of the exclusion or limitation of liability is not allowed by applicable law, the party's liability is limited to the greatest extent permitted by applicable law.
5.3 Maximum Liability
Subject to clauses 5.1, 5.2 and the Product and Services Schedule, SmartQuest's total aggregate liability arising out of or in connection with the performance or contemplated performance of the Agreement (whether for tort (including negligence), breach of Agreement, breach of statutory duty or otherwise) will in no event exceed 120% of the price paid or payable by Company in the 12 month period immediately before the date of the event giving rise to Company's claim.
Company acknowledges and agrees that: (i) SmartQuest's Products and/or Services guide Company as to the suitability and aptitude of candidates as part of an overall recruitment or development process. The Output, represents SmartQuest's professional opinions based on test results and the information provided must not be relied upon as statements of fact or as the sole basis for any employment related decisions; (ii) SmartQuest does not recruit or select candidates and is not operating as a recruitment agency; and (iii) SmartQuest is not responsible for the acts or omissions of the Company, including but not limited to (a) Company's selection of SmartQuest tests without a specific written recommendation from SmartQuest, and (b) Company's use of SmartQuest tests interpretation of test results or resulting decisions the Company makes.
Either party may terminate the Agreement by written notice with immediate effect if the other party:
(a) becomes or is reasonably likely to become insolvent, enters into administration, bankruptcy or compromises any debts with creditors; or
(b) materially breaches the Agreement and fails to remedy such breach, where it is capable of remedy, or persists in any breach of any of its obligations under the Agreement after having been required in writing to remedy or desist from such breach within 30 days.
Either party may terminate the Agreement for any reason by providing the other party with at least 30 days prior written notice after the expiry of any agreed minimum term or any agreed subscription term.
Upon termination of the Agreement for any reason:
(a) the relationship between the parties and any licences granted under the Agreement will cease;
(b) any provision which expressly or by implication is intended to come into or remain in force on or after the termination of the Agreement, will continue in full force and effect;
(c) such termination will be without prejudice to any rights or remedies of either party which may have accrued up to the date of termination; and
(d) except in the event of SmartQuest's breach, all sums owing pursuant to an Order will become due in accordance with its terms;
If Company terminates the Agreement for convenience, Company will pay SmartQuest the cancellation charges specified in an Order or, under a statement of work, the fees based on the percentage of work completed by SmartQuest up to the date of termination.
7.1 IP Ownership
Company will at all times remain the owner of any property (including Intellectual Property) which Company provides to SmartQuest. SmartQuest, or its licensors, will at all times remain the sole owner of any pre-existing Intellectual Property in Products and/or Services as well as any Intellectual Property created by SmartQuest or on its behalf in the course of SmartQuest's performance of the Agreement. For the purpose of this Agreement, “Intellectual Property” includes any patent, copyright, design right, registered design, trade mark, service mark, trade name, domain name, algorithms, user interface designs, benchmark data, architecture, know-how, database right, utility model, unregistered design or other industrial or intellectual property rights subsisting throughout the world, whether or not registered and all applications, renewals and extensions of the same.
7.2 Ownership of Printed Reports and Consultancy Deliverables
Upon full and final payment of SmartQuest's fees, Company will acquire ownership of any Output. Company may download, make copies, distribute, modify and create derivative works of any Output under this Agreement; provided that all Intellectual Property rights in the Output remains the property of SmartQuest Group or its licensors. SmartQuest hereby grants Company a non-exclusive, non-transferrable perpetual licence to use the Intellectual Property contained in the Output in accordance with this Agreement. Except as expressly stated above, this Agreement does not grant the Company any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences.
7.3 IP Indemnity
(a) Subject to clause 5.3, SmartQuest will defend and indemnify Company from and against any third party claim that Products and/or Services infringe a third party's Intellectual Property, provided that Company:
(i) notifies SmartQuest in writing promptly upon receiving notice of a claim, or upon reasonable suspicion of a claim being brought for infringement of any third party's Intellectual Property; and
(ii) co-operates with SmartQuest's reasonable requests for the provision of information or other assistance relevant to the claim; and
(iii) agrees to SmartQuest's sole control of any defence or settlement; and
(iv) does not engage in any public statements, discussions settlement negotiations or make any offer to settle, nor make any admission of guilt or fault, without the express prior consent of SmartQuest.
(b) Subject to the terms of this section 7.3, SmartQuest will either:
(i) obtain for Company the right to continue using Products and/or Services,
(ii) replace or modify the affect Product or Services so they become non-infringing, or refund to Company the amount(s) paid to SmartQuest for such affected Product and/or Service; and
(c) Company warrants that Company will not, by itself or with any third party, do or omit to do any act that might in any way:
(i) devalue or otherwise detrimentally affect the Intellectual Property rights in the Products and/or Services;
(ii) adversely affect the reputation of the SmartQuest Group;
(iii) cause confusion, deception or false associations with products and/or services that are not Products and/or Services (including recruitment or other services) whether by preparing reports that are identical with, or confusingly similar to, any reports prepared by SmartQuest, or otherwise.
(d) SmartQuest may seek immediate injunctive relief against Company for the breach of any of the provisions of this section 7.3.
(a) Company warrants that it will:
(i) administer the Products and/or any Services (including any related materials), in compliance with all relevant laws, procedures or guidelines applicable in the Territory (as stated in the Order, or if left blank then the Territory is the country where Company is registered) or otherwise; and
(ii) not copy, reproduce, modify or adapt, translate, disassemble or reverse engineer any of the Products and/or Services materials without express written consent from SmartQuest, and
(iii) not create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of SmartQuest Product and/or Services (as applicable) in any form or media or by any means, except as permitted under this Agreement.
(b) Test Usage: Company will ensure that it:
(i) It uses their results appropriately, professionally, and in an ethical manner, paying due regard to the needs of those involved in the testing process, the reasons for testing, and the broader context in which the testing takes place.
(ii) each test user has the necessary competencies to carry out the testing process and the knowledge and understanding of SmartQuest's tests and proper test usage that inform and underpin this process.
(c) Where Company is a Direct Customer, SmartQuest grants Company a non-transferable, non-exclusive licence for the duration of this Agreement to use the Products and/or Services solely for Company's internal purposes (provided such internal use is not to directly or indirectly develop competing products and/or services) and only in the Territory.
(d) Where Company has entered into an agreement with SmartQuest to be a SmartQuest Partner, SmartQuest grants Company a non-transferable, and non-exclusive right to utilise and incorporate or consume the Products and/or Services as an integral part of the service Company provides to its customers provided that Company's customers:
(i) are resident in the Territory, and
(ii) use the Products and/or Services only for their internal purposes (provided such internal use is not to directly or indirectly develop competing products and/or services).
Other than as stated in this clause 7.4(d), Company has no right to resell or resupply the Products and/or Services for any other purpose. Any breach of this clause will be considered a material breach incapable of remedy.
In this clause, the following terms are used:
“Data Controller” means a person/entity who determines the purposes for which and the manner in which any Personal Data are, or are to be, processed (collected, used, amended, retained, destroyed etc.);
“Data Processor” means a person/entity (other than an employee of the Data Controller) that processes Personal Data on behalf of the Data Controller;
“Personal Data” means data which relates to a living individual who can be identified from that data, (or from that data and other information which is in the possession of the Data Controller);
“Sensitive Personal Data” means Personal Data relating to the racial or ethnic origin of the data subject, political opinions, religious (or similar) beliefs, trade union membership, physical or mental health or condition, sexual life, the commission or alleged commission of any offence, or any proceedings for any offence committed or alleged to have been committed; and
“Third Party” any person or entity other than Company, Candidate, the Data Controller or the Data Processor or other person authorised to process data for the Data Controller or person, excluding the SmartQuest Group.
Both parties will comply with all applicable laws and regulations in relation to the collection, processing and storage of Personal Data relating to Candidates.
8.3 Data Collected
(a) SmartQuest Online Service - Company provides SmartQuest with Candidate Personal Data, including information to contact Candidates (“Candidate Data”). SmartQuest will then contact the Candidate for the purpose of completing an assessment (“Assessment Data”). Personal Data, which is used to produce a report, is either input by the Candidate or provided by Company. Candidate or Company may provide optional information for the purposes of research (“Research Data”). The SmartQuest product processes the answers provided by the Candidate and will generate results of the assessment (“Results Data”) and provide Company an Output, which is the final scored report.
8.4 Data Transfer
(a) Company agrees that SmartQuest may transfer Personal Data outside India in order to provide Company with the Products and/or Services under this Agreement. This may include processing Candidate Data, Assessment Data and Results Data in countries in which data protection laws do not provide the same level of protection
In such cases, the SmartQuest Group will take appropriate steps to ensure Company's information is adequately protected.
(b) SmartQuest may disclose Personal Data to Third Parties (outside the SmartQuest Group) in the following limited circumstances: (i) if SmartQuest Group buys or sells any business assets, (ii) if SmartQuest Group contracts with Third Parties to perform or provide certain services on behalf of a member of the SmartQuest Group, or (iii) if SmartQuest Group is under a duty to disclose or share Personal Data to comply with any legal obligation. SmartQuest will contractually require any buyer of SmartQuest assets that include Personal Data or any Third Party performing services on SmartQuest's behalf to provide the same level of protection for Personal Data required in these terms and under any applicable data protection laws.
8.5 Data Processing
(a) Company is the Data Controller of all Candidate Data, Assessment Data and any Output. SmartQuest acts as the Data Processor in respect of the Candidate Data, Assessment Data and in producing the Output. SmartQuest will co-operate with any Company request for Personal Data provided by or through Company, provided that such requests, other than those required under law, may be subject to reasonable charges for such assistance.
(b) Where SmartQuest acts as Company's Data Processor, SmartQuest will:
(i) process Personal Data in accordance with Company's reasonable instructions or otherwise as may be required to provide the Product and/or Services under this Agreement, and to support Company in its use of the Products and/or Services; and
(ii) take appropriate steps to protect Personal Data, whether electronic or otherwise, including by implementing reasonable administrative, technical and physical security controls to protect Personal Data from unauthorised access, improper use or disclosure, unauthorised modification or unlawful destruction or accidental loss. SmartQuest Group and any Third Party SmartQuest engages to process Personal Data will be required to protect and process Personal Data in accordance with this Agreement and applicable data protection laws.
8.6 Research Data
(a) SmartQuest collects Research Data in the form of optional demographic questions displayed at the beginning of a Candidate assessment, and in the form of further information on assessment objectives or Candidate success information provided by Company.
(b) SmartQuest will be the Data Controller of all Research Data, which may include Personal Data and Sensitive Personal Data.
(c) Candidate's ability to complete an assessment will not be affected by the Candidate's choice not to provide Research Data, nor will such choice affect Candidate's assessment results.
8.7 Assessment Validation and Benchmarking
(a) Company authorises SmartQuest to use Assessment Data and Results Data for assessment validation and benchmarking purposes. SmartQuest uses such Assessment Data and Results Data, along with Research Data, to ensure that the SmartQuest psychometric instruments remain fair and objective to prevent unfair discrimination, and to benchmark tests against industry recognised differences for particular groups. SmartQuest Group and its psychologists are bound by ethical guidelines and data protection law in the use of all data. Access to any data used for validation, benchmarking, or research will be restricted to SmartQuest Group employees directly involved in research supporting SmartQuest Group products and services. SmartQuest may disclose to Third Parties the results of its research in an aggregated and anonymised format that does not include any information identifying Company or any identifiable individual.
The Agreement, its content, the matters to which it relates and information exchanged, whether in tangible or intangible form, and whether disclosed orally or in writing, pursuant to it are confidential between the parties. If there is an existing mutual confidentiality agreement in effect between the parties then this section applies only to the extent that it extends such existing agreement. Each party will apply no lesser security measures and degree of care than those which the receiving party applies to its own confidential information and which the receiving party warrants as providing adequate protection from unauthorized disclosure, copying or use.
Notwithstanding the foregoing, an obligation of confidentiality will not exist in relation to any information which:
(a) is already in the public domain through no act or omission of the receiving party;
(b) is independently developed by the receiving party, which independent development can be evidenced in writing; or
(c) is required to be disclosed pursuant to a legal obligation providing the receiving party first consults with the disclosing party to agree an appropriate course of action.
9.3 Return of Confidential Information
On expiry or termination of the Agreement, each party will return to the other party, or confirm destruction of, the other's confidential information upon request.
Neither party will give money or anything of value or make any offers or promises to pay money or anything of value – either directly or indirectly, through another person or entity to a (“Recipient”), defined as any:
(a) private commercial entity or individual, or
(b) political party, political official, candidate for political office, or
(c) government official, including officers and employees of
(1) government agencies and departments;
(2) state-owned or state-controlled companies, or
(3) public international organisations (e.g., United Nations, World Bank), in order to assist a party in obtaining or retaining business for or with, or directing business or an improper advantage to SmartQuest, NextLeap Career Solutions, Company, or any person to:
(d) influence any act or decision of the Recipient in his/her official capacity, or
(e) induce the Recipient or someone under Recipient's control or direction to do or fail to do any act in violation of the Recipient's lawful duty, or
(f) induce such Recipient to use his/her influence with a government or government instrumentality or
(g) secure any improper advantage.
Each party will comply with all applicable anti-corruption laws, statutes, regulations and codes. Breach of this Section 10.1 is a material breach of this Agreement.
Nothing in the Agreement will create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
10.3 Force Majeure
Neither party will have any liability to the other if the affected party does not fulfil its obligations to the other due to an event outside the affected party's reasonable control.
SmartQuest may request:
(a) use of Company's company name and logo in SmartQuest's customer lists (whether online or offline) and other marketing materials;
(b) Company to participate in a press release which announces Company's decision to use SmartQuest's Products and/or Services; or
(c) Company to participate in the joint development of a case study describing Company's use of the Products and/or Services, or in other joint press and marketing activities.
Notwithstanding the foregoing SmartQuest Group may use Company's plain text name as required in any public reporting or regulatory documents.
Notice under the Agreement will be in writing and delivered by registered post or other carrier providing a receipt to the address stated in the Order and to the attention the SmartQuest Business Manager with a copy to the following:
Attention: Head of Legal
301, Tiara Spaces, Above KFC Restaurant, Baner Mahalunge Road, Baner, Pune - 411045
If any provision of the Agreement is held to be invalid under any enactment or rule of law, that invalidity will not affect the rest of the Agreement, which will remain valid and enforceable. Any waiver of any breach of the Agreement will be in writing, and will not prevent the subsequent enforcement of that provision nor be deemed to be a waiver of any subsequent breach of that or any other provision.
Neither party will assign or otherwise transfer its rights or responsibilities under the Agreement to any third party without the other party's prior written consent. SmartQuest may, however, sub-contract its obligations to group companies, approved distributors, partners, associates or other qualified subcontractors provided that SmartQuest will remain at all times responsible to Company for SmartQuest's obligations under the Agreement. No third party will have the right to enforce any term of the Agreement.
The Agreement and any dispute arising out of it will be governed by Indian Lawas and the parties irrevocably submit to the exclusive jurisdiction of the Pune courts.
1 Software as a Service
(a) Company may order SmartQuest access to the SmartQuest online talent management services (“SmartQuest Online Service”) on a Subscription or Unit purchase basis (as such terms are defined below). The SmartQuest Online Service may require an Order for Services to establish links with Company's website and configure access to the SmartQuest Online Service for Company's purposes. This may include delivery of SmartQuest tests online to Company's candidates, assessing Company's candidate results and making the resulting reports on Company's candidates available to Company through the SmartQuest Online Service.
2 SmartQuest Subscription
(a) The SmartQuest Online Service may be purchased by “Subscription”, which provides Company with access to SmartQuest Online Service for the duration of the Subscription period agreed in an Order. A Subscription may be limited or unlimited and subject to different parameters. The limitation may be defined by reference to the number of online credit units, users, SmartQuest tests (excluding third party content) or other measures as stated in the Order. Substantial changes to the Basis of Fees as defined in the Order (whether Units, Applications, Assessments, or number of full time employees) may result in modification or termination of the Subscription. If Company exceeds a specified limitation before the end of the Subscription period, then SmartQuest reserves the right to charge the additional use at its standard rates for the Tests consumed during the remainder of the Subscription period. Any outstanding fees for additional Tests will become payable before Company renews their Subscription.
(b) Duration: Unless otherwise agreed in an Order, Company's Subscription period starts on the date Company receives its username and password for new accounts, or on the anniversary of such date for Subscription renewals and ends 12 months later. The Subscription will automatically expire at the end of the agreed Subscription period unless the parties agree in writing to renew. If Company uses the SmartQuest Online Service after expiration, SmartQuest reserves the right to charge for the Tests used at the standard rate for such tests
(c) Rates: Subscription fees are non-cancellable and non-refundable except as otherwise stated in an Order. Once ordered, the Subscription fees remain due and payable regardless of the extent to which Company makes use of the SmartQuest Online Service. SmartQuest may increase Subscription fees at the start of each renewal Subscription period and such renewal pricing will be stated in the Order. If Company does not agree to an increase, Company's Subscription will not be renewed and any subsequent use of SmartQuest Online Service will be charged at SmartQuest's standard rates for the Units used.
3 SmartQuest Tests
(a) If Company purchases Tests under the SmartQuest Online Service, the appropriate number of Tests will be deducted from Company's account whenever Company runs an SmartQuest report or a Company candidate starts an SmartQuest online test.
(b) Tests remain on Company's account for use on the SmartQuest Online Service for 1year from the date of purchase (“Validity Period”). After the Validity Period, Tests will automatically expire and will be deleted from Company's account. No refund or credit will be payable for expired Tests . Alll Tests ,whenever purchased, will be used in strict chronological order from their date of purchase such, upon use, the oldest Testst will be deducted first from Company's account.
(c) Upon expiry or termination of the Agreement (other than termination by SmartQuest in accordance with clause 6.2), any Test remaining on Company's account will expire and will not be refunded.
Company will nominate employees who will have access to the SmartQuest Online Service and who are responsible for the use or misuse of the SmartQuest Online Service. Company will instruct its employees to keep confidential any username and password assigned by SmartQuest. Company must notify SmartQuest of any actual or anticipated unauthorised access to or use of the SmartQuest Online Service as soon as Company becomes aware of such actual or anticipated unauthorised access.
5 Fair Use
Where Company has agreed with SmartQuest an estimated annual usage and if Company's actual usage is significantly different, SmartQuest may review Company's usage with Company and may suggest a different package for the remainder of the Agreement term. In the unlikely event that SmartQuest are unable to resolve this issue with Company through agreement, SmartQuest reserves the right to terminate Company's Agreement with 30 days prior written notice and provide Company with a pro-rated refund of any monies Company has paid.
6 Support, Maintenance and Upgrades
(a) SmartQuest provides Company with SmartQuest customer support services for administrators at no additional cost in accordance with SmartQuest support services policy . Such support services are not available to Company's customers or candidates and additional charges will apply for any requests for support by direct end customer or candidate support directed to SmartQuest by Company.
(b) SmartQuest will use all commercially reasonable endeavours to have the SmartQuest Online Service generally available for use except for scheduled maintenance periods (which are published in advance) or unscheduled maintenance required to address system issues. SmartQuest will conduct system upgrades to SmartQuest Online Service from time to time and are generally provided at no additional cost to Company. SmartQuest will obtain Company's prior written consent if an upgrade requires additional services that are to be charged to Company. The published maintenance schedule, will include dates for implementation of SmartQuest Online Service upgrades as well as routine maintenance. In the event that immediate action is required (such as in the event of an attempted or successful security breach), SmartQuest will inform Company as soon as is reasonably practicable where such breach or remedial action directly affects Company's data.
Access to SmartQuest's online systems is dependent on third parties, such as internet service providers. SmartQuest will have no liability to Company for any losses Company suffers resulting directly or indirectly from:
(a) failures of performance on the part of SmartQuest's internet service provider; or
(b) failure of Company's equipment or those of Company's candidate(s) or third parties; or
(c) reasons related to SmartQuest's provision of system upgrades or maintenance; or
(d) any security breach of SmartQuest's system unless such breach is shown to be the result of SmartQuest's negligence; or
(e) inability to access the SmartQuest Online Service in any one country due exclusively to SmartQuest's software or hardware for any period not exceeding (i) ten (10) consecutive hours or (ii) an aggregate of more than twenty-four (24) hours in any calendar month.
1 SmartQuest Competency Framework (JCF)
(a) Licence For Direct Customers: Direct Customers may purchase licence to use SmartQuest's Competency Framework (“JCF”), subject to the following:
Company may use the JCF content to profile a job and to recruit, develop or conduct other selections, and SmartQuest provides Company with a non-exclusive, non-transferable and conditional licence to: (i) adapt, modify the original JCF content to create derivative works, and (ii) use, copy, print such JCF contents derivatives including placing such content on SmartQuest's system or third party systems which Company uses or incorporating such content into Company's training or other materials.
This licence is subject to the following conditions:
(i) All use of SmartQuest's JCF content or derivatives is only for Company's internal business use; and
(ii) SmartQuest will be the sole owner of all Intellectual Property to all derivative JCF content. Company hereby assigns all rights to such derivative JCF content to SmartQuest and SmartQuest grants Company a non-exclusive right to use such derivative content in accordance with this Agreement; and
(iii) any publication of SmartQuest's JCF content or its derivatives will be accompanied with the following copyright notice “ © SmartQuest. Reproduced or adapted with the permission of SmartQuest Group Limited.”
SmartQuest has no liability or responsibility to Company for any derivative JCF content which Company creates without SmartQuest's guidance or for Company's use of SmartQuest's JCF or its derivatives with any non-SmartQuest test.
Notwithstanding the foregoing, to the extent SmartQuest assessments use the UCF content within a report or Output, SmartQuest grants a licence only to the included JCF content for use within such report or Output and for no other purpose.
(b) Licence for SmartQuest Partner: SmartQuest Partners who wish to map competencies to or from any SmartQuest test or use SmartQuest's JCF content or create JCF derivative works, must obtain SmartQuest's prior written consent and subject to additional terms which SmartQuest may agree with Company.
2 System Licences – UK
A System Licence is an annual licence for use of an implemented SmartQuest Online Service. As part of the System Licence, SmartQuest will provide the licence holder with the following benefits for the 12 month term of the System Licence:
(a) Automatic upgrades to licenced online tests / tools / reports as new versions and languages become generally available for such licenced SmartQuest products;
(b) Customer technical support via the SmartQuest Client Helpdesk;
(c) One annual online system training session to ensure quick and easy use and familiarity with any modifications / upgrades for the licence year; and
(d) Updates and maintenance to the SmartQuest Online Service.
3 Controlled Tests in the UK, EU and South Africa
(a) Certain tests available in UK, Norway, Switzerland, the European Union and South Africa (each a “Controlled Territory”) are subject to regulatory controls and may only be ordered by a person who has successfully completed SmartQuest's online training manual and obtained a valid SmartQuest tester licence (“Registered User”) or a Company relying on such Registered User. A Registered User must promptly notify SmartQuest of any change of employer or address. If a Company does not have a Registered User in a Controlled Territory, Company may not use the controlled tests and such Products must be returned to SmartQuest.
(b) SmartQuest Product Licences: Registered Users or a Company relying on such Registered User, is required to purchase an annual non-exclusive, non-transferable SmartQuest Product Licence for such Registered User to order (on their own behalf or on behalf of a Company) controlled tests from SmartQuest for the Controlled Territories. The Registered User or Company may cancel its Product Licence by giving SmartQuest at least 30 days written notice before its expiry and returning all SmartQuest materials (including Leased Product materials) in the Registered User or Company's possession on or before the expiry of the Product Licence, failing which the Product Licence will renew automatically at the then-current price and the renewal fee will become payable. SmartQuest reserves the right to terminate the Product Licence at any time if the Registered User or Company is in breach of the Agreement.
Limited Partner Rights
If a Company or individual has not entered into a separate partnering agreement, it may only purchase Products or Services from SmartQuest to administer to or resell to third parties under the following limited circumstances. The third parties must:
(a) be residents of the Territory;
(b) secure substantially similar terms with their customers or clients for use of the Products and/or Services;
(c) retain all branding and copyright statements on the Products and Services,
(d) use the Products and/or Services only for their internal purpose (provided such internal use is not to directly or indirectly develop competing products and/or services);
(e) not make any representations or warranties other than those provided in the SmartQuest Terms of Business;
(f) be required to grant SmartQuest all the rights stated in section 8 Data Protection of the SmartQuest Terms of Business;
(g) not represent itself as SmartQuest, a licensed partner, a distributor or an agent of SmartQuest or SmartQuest Group.
© 2019, SmartQuest. All rights reserved.
Version 01. Last modified 23 November 2014.