With Effect from 1st of November, 2016

Hello, and welcome to our Terms of Use. Thank you for choosing Brainberg Knowledge Solutions Private Limited (“Brainberg”, “We” or “Us”).

These Terms of Use are important and affect your legal rights, so please read them and our Privacy Policy carefully.

1. Introduction

We are the owner, author and publisher of the internet website ‘Brainberg’ (“Digital Platform”). We own and operate the services provided through the Digital Platform.

By using our services through the Digital Platform (“Service”), you are entering into a binding contract with us, governed by the laws prevailing in the territory of India. Your agreement with us includes these Terms of Use (“Terms”) and our Privacy Policy. These Terms constitute a legal agreement between you and Brainberg in connection with your visit and use of the Digital Platform.

If you don’t agree with these Terms, then please refrain from visiting/ accessing the Digital Platform

2. Definitions

1. “Applicable Law”, shall mean any statute, law, regulation, ordinance, rule, judgment, order, decree, bye-law, government approval, directive, guideline, requirement or other governmental restriction or any decision or determination by, or any interpretation, policy or administration of any of the foregoing, by any government authority having jurisdiction over the matter in question, whether in effect as on the date of these Terms or thereafter:
2. “End User” shall mean and include all individuals who have been authorized by the User to take a Test, and shall include the individual User
3. “Fees” shall mean the amount charged by Brainberg from the User for use of the Service, which may depend upon the type of Test/ Test Package opted by the User
4. “Intellectual Property” shall mean all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world
5. “Reports” shall mean the Test result and analysis report automatically generated for the use of on the Digital Platform upon completion of a Test by the End User.
6. “Sensitive Personal Information” shall mean personal information 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.
7. “Test” shall mean an online test set by Brainberg or customized by the User by way of tools made available by Brainberg, with the intention of helping in analyzing the personality, skillfulness and the intellectual, emotional and mental abilities of the End User
8. “Test Link” shall mean the uniform resource locator providing access to a Test.
9. “Test Package” shall mean the option to undertake multiple Tests which may be set by the User from the database made available by Brainberg or customized by the User from the data base by use of tools made available by Brainberg
10. “User” or “You” shall mean any individual who has directly availed the Test or Test Package, or an entity that has purchased the Test Package for its employees and/ or potential employees, as provided on the Digital Platform.
11. “Brainberg Content” shall mean all contents of the Digital Platform including information, text, graphics, images, logos, button icons, software code, design; collection, arrangement and assembly of content on the Digital Platform and the software programs, source codes documentation, updates, upgrades and all derivatives thereof.
12. “User” or “You” shall mean any individual who has directly availed the Test or Test Package, or an entity that has purchased the Test Package for its employees and/ or potential employees, as provided on the Digital Platform.

3. Applicability of Terms

The Terms apply, whether you are a “Visitor” (which means you are navigating on the Digital Platform or you use the Digital Platform without been registered on the Digital Platform) or you are a User (which means you are a registered user of the Digital Platform).

4. Applicable Law

The Terms are published in compliance of, and are governed by the provisions of Indian law, including but not limited to.

1. the Indian Contract Act, 1872;
2. the (Indian) Information Technology Act, 2000; and
3. the rules, regulations, guidelines and clarifications framed there under, including the (Indian) Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 (the “SPI Rules”), and the (Indian) Information Technology (Intermediaries Guidelines) Rules, 2011 (the “IG Rules”).

5. Conditions of Use

In order to use the Service independently, you need to be 18 (eighteen) years old or older and need to be competent to enter into a binding contract with Brainberg and are not barred from doing so under any Applicable Law

6. Changes to the Terms

We may, in our discretion, make changes to the Terms. By continuing to use the Service after those changes are made, you are expressing and acknowledging your acceptance to those changes

7. Creation of Account

1. For becoming a User of the Digital Platform, you will be required to register and create an account with us. While registering, you will be required to provide certain information. You agree that you will provide true, accurate, and complete information, and maintain and promptly update this information. We reserve a right to terminate our Service provided to you, if any information provided by you is found to be untrue, incomplete or incorrect, or we have reasonable grounds to construe that such information is untrue, incomplete or incorrect
2. Brainberg will enable you to set a username and password, which shall enable you to start using the Digital Platform and access your account. In the event you opt for a Test Package, Brainberg will enable you to create an Administrator Account, which will include an administrative console, which will permit you to perform certain administrative functions relating to sharing of Test links and/ or Reports with the End Users. Your password protects the Administrator Account, and you are solely responsible for keeping your password confidential and secure. You understand that you are responsible for all use of your username and password on the Digital Platform. If the username or password is lost or stolen, or if you believe that there has been unauthorized access to the Administrator Account by any third parties, please notify us immediately and change your password as soon as possible
3. You will have the option to share the Report with the End User. You may note that the Reports will be accessible and available for downloading on the Digital Platform for a period of 36 months from the date of generation of the Report.

8. License

The license to use and access the Digital Platform is a limited, temporary, non-exclusive, non-transferable, revocable license to make personal, non-commercial use of the Digital Platform and to use the Service made available through the Digital Platform. We may assign this license or any part of it without restrictions. You may not assign this license or any part thereof, nor transfer or sub-license your rights under this license, to any third party. All rights not explicitly granted herein are reserved with Brainberg

9. Access and Transmission

1. Brainberg authorizes the User to view and access the information available on or from the Digital Platform solely for taking Tests, viewing and downloading the Report, making payments and communications, only as per these Terms. The Brainberg Content is the sole and absolute property of Brainberg and is protected under copyright, trademark and other Applicable Laws. You shall not modify the Brainberg Content or reproduce, display, publicly perform, distribute, or otherwise use the Brainberg Content in any way for any public or commercial purpose or for personal gain
2. Each Test Link provided by Brainberg to the User shall remain valid for taking the Test for a period of months from the date of them being provided to the User. Upon completion of the Test or expiry of this term, the Test Link shall become invalid for their access to the User/ End User.

10. User Fees

1. You hereby agree to pay all Fees and other payments as may be applicable to your use of the Service and you shall not circumvent the applicable Fee structure. The Fees are chargeable only on the Test or Test Package purchased by you. Any amount paid to Brainberg is non-refundable irrespective of whether the Test(s)/ Test Package is accessed or availed
2. You will be responsible for all Fees incurred and purchases made by you. You shall be responsible to maintain the secrecy of your user name and password (if applicable) and payment details. You will immediately notify Brainberg of any unauthorized use of your Administrator Account or any other breach of security. Brainberg reserves the right to revise the Fees from time to time. Fee changes for the Tests will take effect at the time of purchase of any Test/ Test Package following the date of the Fee change. By continuing to use the Digital Platform after the Fee change takes effect, you accept such changed Fee.
3. The Fees may be paid online through the facility made available on the Digital Platform. Third parties support and services are required to process online Fee payment. Brainberg shall not be responsible for any loss or damage caused to you during this process as these third parties are beyond Brainberg’s control
4. The payment process would be considered to be complete only upon receipt of the entire Fees to Brainberg’s designated bank account. Brainberg reserves the right to withdraw discounts if any, if the Fees or part thereof owed by you are not paid by their due date
5. The Fees can also be paid offline
6. In order to process the online payments, Brainberg might require details of the User’s bank account, debit/ credit card number etc. Please check Privacy Policy on how Brainberg uses the confidential information provided by Users.
7. The User hereby represents that:
   • it will pay the Fees only in Indian Rupees;
   • any payment information it provides shall be true and accurate; and
   • Brainberg has the permission to retain the payment information, including all debit/credit card information submitted by the User and the User’s issuing bank or the applicable payment network, if the credit card payment is approved by Brainberg

11. Ownership

1. You acknowledge and agree that the ownership of the Intellectual Property in the Brainberg Content vests with Brainberg and that the Intellectual Property is protected under laws in various jurisdictions and international treaties. Other than the rights expressly granted to you under the Terms, we shall retain and own all right, title and interest in and to the Brainberg Content, and all rights in the Intellectual Property in the foregoing You will not be entitled to
   • transfer any rights of ownership and/or interest in and to the Brainberg Content or portions thereof, or any derivative works of the foregoing; or
   • except as specifically provided in these Terms, exercise the rights granted herein with respect to the Brainberg Content , except as specifically provided in these Terms.

We expressly reserve all other rights in and to the Brainberg Content and Intellectual Property rights therein are not granted to you hereunder.

We may generate statistical data based on the Reports generated, while maintaining anonymity and with no reference to you. This data may be utilized for generating awareness about industry wide trends in the various sectors and the society. You agree that this shall not be in violation of data confidentiality and intellectual property rights

12. Infringement

1. 1. If a court determines that the Service or part thereof infringes the Intellectual Property rights of a third party, Brainberg will, at its option, use commercially reasonable efforts to:You will not be entitled to
      • obtain for you, the right to continue to use the Digital Platform consistent with these Terms
      • modify the Service so that it is non-infringing.
      • replace the infringing component with a non-infringing component; or
      • modify the Service so that it is non-infringing.
      • refund a pro-rata portion of any pre-paid Fees, if applicable and paid by you, upon which all of your rights and licenses under these Terms shall automatically terminate.

We shall have no liability for a claim of infringement arising from.

1. 1. • any third-party software;
      • the combination of our Service with products or services not provided by us, which claim would have been avoided but for such combination;
      • the modification of our Service other than as directed by us; or
      • the use of our Service in a manner not permitted or contemplated hereunder. THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND BRAINBERG’S ENTIRE LIABILITY WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS DUE TO USE OF THE SERVICE OR ANY PART THEREOF. The obligations of Brainberg set forth above are the sole obligations and exclusive liability of Brainberg towards you, and your sole recourse and remedy against Brainberg, for any claim or allegation of violation, infringement or misappropriation of Intellectual Property rights by the Service.

We may generate statistical data based on the Reports generated, while maintaining anonymity and with no reference to you. This data may be utilized for generating awareness about industry wide trends in the various sectors and the society. You agree that this shall not be in violation of data confidentiality and intellectual property rights

13. Indemnity

1. You shall be fully responsible for compliance with these Terms and hereby agree to indemnify and hold Brainberg harmless from and against any damages or liability resulting from use of the Services by you or any End User through you, in violation of these Terms. You will not make any representation, warranty or guarantee to any End User on behalf of Brainberg, or otherwise attempt to bind or bind Brainberg in any manner.
2. You will indemnify and hold Brainberg, and its subsidiaries, affiliates, officers, agents, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Digital Platform, your violation of these Terms, or your violation of any rights of a third party.
3. You hereby acknowledge and agree that Brainberg’s Service guides its Users as to the ability and aptitude, emotional intelligence, suitability for the job and other psychological factors of the End Users as a part of an overall recruitment and development process. The Reports only represent Brainberg’s professional opinions about the End User’s abilities based on the outcomes of the Tests and such Reports must not be relied upon as statements of fact or as the sole basis for analyzing the personality of any person and
4. his/her employment related decisions; and Brainberg is not responsible for the acts or missions of the User, including but not limited to the User’s use of Tests, interpretation of Reports made by the User and the resulting decision that the User makes.

14. Prohibited Use

1. You agree that you will not:
   • reverse-engineer, decompile, disassemble, modify or create derivative works based on the Digital Platform or any part thereof
   • reproduce, duplicate, copy, sell, resell, or exploit, any portion of the Digital Platform, use of the Digital Platform, or access to the Digital Platform
   • collect or store data about other people using the Digital Platform
   • create a false identity/ fake account
   • use any device, software or routine to interfere or attempt to interfere with the proper working of the Digital Platform
   • take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Digital Platform;
   • use the Digital Platform in any manner other than as expressly authorized in the Terms
   • circumvent any technology used by Digital Platform, its licensors, or any third party to protect content accessible through the Digital Platform
   • remove or alter any copyright, trademark or other intellectual property notices contained on or provided through the Digital Platform
   • Intentionally or unintentionally violate any Applicable Law; or
   • transfer the materials to another person or “mirror” the materials on any other server
2. These Terms are not intended to grant rights to anyone except you and us, and in no event shall these Terms create any third party beneficiary rights. Any failure to enforce these terms or any provision thereof shall not waive our right to do so

15. Trademarks

All our trademarks, service marks, trade names, logos, domain names, and any other features of our brand are our sole property. This License does not grant you any rights to use or display our trademarks, service marks, trade names, logos, domain names, or any other features of our brand, whether for commercial or non-commercial use

16. Privacy Policy

Certain registration information and other information about you may be collected by us through the Digital Platform. The use of this information is governed by the Privacy policy.

17. Modifications

We will make reasonable efforts to keep the Digital Platform operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. We reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Digital Platform, with or without notice, all without liability to you for any interruption, modification, or discontinuation of the Digital Platform or any function or feature thereof. You understand and agree that we have no obligation to maintain, support, upgrade, or update the Digital Platform, or to provide all or any specific content through the Digital Platform.

18. Non-Disclosure

“Confidential Information” shall mean and include the information belonging to Brainberg, namely any information, technical data or know-how including, but not limited to, that which comprises or relates to the Brainberg’s confidential and proprietary trade secrets, hardware, software (source code and object code), screens, firmware, specifications, designs, plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, Intellectual Property, market research, marketing techniques and plans, Brainberg Content, business plans and strategies, proprietary or third party content, customer names and other information related to customers, Fees, pricing policies and financial information or other business and/or technical information and materials, in oral, demonstrative, written, electronic, graphic or machine readable form and any analyses, compilations, studies or documents. In all events, Brainberg Content shall be deemed to be the Confidential Information of Brainberg or its third party licensors, to the extent the same is not in the public domain. During the term of your Service, and for a period of two years from the date of termination hereof, you agree to use the same care and discretion to avoid disclosure, publication, or dissemination of Brainberg’s Confidential Information as it would be its own confidential information of like kind, but in any case using reasonable care

19. Termination

Your right to use the Digital Platform automatically terminates upon your breach of any of the Terms.

1. You may terminate these Terms with a prior notification in writing. You hereby agree and acknowledge that Brainberg has no obligation to retain the data with respect to the Users/ End Users, and Brainberg may delete such data any time after 60 days from the date of discontinuation of use of the Service.
2. You understand and agree that the cancellation of your account or a particular component of the Digital Platform is your sole right and remedy with respect to any dispute with Brainberg. This includes, but is not limited to, any dispute related to or arising out of: (a) any term of these Terms or Brainberg’s enforcement or application of the Terms of Use; (b) any policy or practice of Brainberg, including the Privacy Policy, or Brainberg’s enforcement or application of these policies; (c) the data available through the Digital Platform; (d) your ability to access and use the Service; or (e) the amount or type of fees, surcharges, applicable taxes, and any Brainberg billing methods. We, in our sole discretion, may terminate your account and remove and discard any of your recommendations without notice if we believe that you have violated or acted inconsistently with these Terms. If your account access is terminated by us, you agree that we shall have no liability or responsibility to you and we will not refund any amounts that you have already paid, to the fullest extent permitted under the Applicable Law.
3. You will have the option to delete the Administrator Account yourself at any point of time from the Digital Platform.
4. Upon expiration or termination of the account: (i) Your license to use the Digital Platform shall immediately cease; and (ii) You will immediately uninstall all copies of the Brainberg Content and other tangible items that you have received or created pertaining, referring or relating to the confidential information of Brainberg or its licensors.
5. These Terms are not intended to grant rights to anyone except you and us, and in no event shall these Terms create any third party beneficiary rights. Any failure to enforce these terms or any provision thereof shall not waive our right to do so

20. Warranty

We endeavor to provide the best Service we can. OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DIGITAL PLATFORM IS PROVIDED AND LICENSED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. BRAINBERG, ITS AFFILIATES AND ITS LICENSORS DO NOT WARRANT OR GUARANTEE THAT THE DIGITAL PLATFORM WILL MEET THE USER’S REQUIREMENTS OR THAT THE USE OF THE DIGITAL PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO THE USER.

Any damage to your computer or loss of data that results from the use of the Digital Platform or the Service, 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

21. Limitation of Liability

1. You agree that, to the extent permitted by the Applicable Law, your sole and exclusive remedy for any problems or dissatisfaction with the Digital Platform is to uninstall and/ or discontinue use of the Digital Platform.
2. Disclaimer of Damages
   TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BRAINBERG, ITS AFFILIATES, OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THESE TERMS, THE DIGITAL PLATFORM (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), OR THE USE OF OR INABILITY TO USE THE DIGITAL PLATFORM INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST OF PROFITS, LOSS OF DATA, OR COMPUTER FAILURE EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. BRAINBERG SHALL HAVE NO LIABILITY WITH RESPECT TO THE CONTENT OF THE DIGITAL PLATFORM OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO ERRORS OR OMISSIONS CONTAINED THEREIN, INFRINGEMENTS OF RIGHTS, PRIVACY, TRADEMARK RIGHTS, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, MORAL RIGHTS, DAMAGES FOR LOSS OF PROFITS,REVENUE, GOODWILL, OR THE DISCLOSURE OF CONFIDENTIAL INFORMATION. FURTHER, NOTWITHSTANDING ANYTHING STATED TO THE CONTRARY, IN NO EVENT WILL BRAINBERG’S AGGREGATE LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OF USE, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT OF FEES RECEIVED BY BRAINBERG FROM YOU IN THE PRECEEDING TWO MONTHS.
3. The Service is controlled and offered by Brainberg from its facilities in the Republic of India. We make no representations that the Digital Platform is appropriate or available for use in other locations. Those who access or use the Digital Platform from other jurisdictions do so at their own volition and are responsible for compliance with that local law.

22. Links

The Service on the Digital Platform may provide links to other websites or resources. Because Brainberg has no control over such websites and resources, you acknowledge and agree that Brainberg 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 websites or resources. You further acknowledge and agree that Brainberg 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 website or resource.

23. Reverse engineering

You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever, directly or indirectly, or disclose any of the foregoing. Any information supplied by Brainberg or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software.

24. Force Majeure

In the event that either party is prevented from performing or is unable to perform any of its obligations under these Terms due to any cause beyond its reasonable control, the time for performance of such term(s) shall be suspended for the duration of such force majeure up to thirty (30) days, upon which either party may elect to terminate the use of Service on fifteen (15) days prior written notice provided such conditions continue to exist. This provision shall not be construed as relieving either Party from its obligation to pay any sum due the other Party.

25. Representations and Warranties

You represent and warrant to Brainberg: (a) that you have full power, authority, and legal capacity to enter into the Terms and follow its obligations, and if you are registering on behalf of a company or other entity, you have the authority to bind your principal or employer; (b) you have provided/ will provide complete and accurate information to Brainberg; and (c) you will pay all amounts, fees, charges as per Brainberg’s then current rates.

26. Entire Terms

These Terms constitute the entire agreement between you and Brainberg and supersedes any other previous or contemporaneous communications, agreements, representations, or advertising with respect to Brainberg’s Services. Any modifications to these Terms shall be invalid, unless expressly agreed by Brainberg.

27. Severability

If any provision of the Terms shall be invalid or unenforceable to any extent for any reason including by reason of any law or regulation or government policy, the remainder of these Terms and the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each provision of these Terms shall be valid and enforceable to the fullest extent permitted by Applicable Law. Any invalid or unenforceable provision of these Terms shall be replaced with a provision, which is valid and enforceable and most nearly reflects the original intent of the unenforceable provision, in a manner suggested by Brainberg.

28. No Waiver

Failure of Brainberg at any time to enforce any provision of these Terms or to require performance of any provision of these Terms shall not be construed as waiver of such provision and shall not affect the validity of these Terms or any part of it or the right of Brainberg to enforce any provision in accordance with these Terms.

29. Applicable Law, Arbitration and Jurisdiction

• These Terms will be governed by and construed in accordance with the Applicable Laws.
• Any and all disputes howsoever arising under or in connection with these Terms will be finally settled by a sole arbitrator appointed by Brainberg, in accordance to the Arbitration and Conciliation Act, 1996, seat of the arbitrator will be Pune and the language of the arbitration will be English.
• Notwithstanding the foregoing, Brainberg may seek preliminary judicial relief (such as a preliminary injunction) from the courts in Pune, India if, in its judgment, such action is necessary to avoid irreparable damage, and such courts shall have exclusive jurisdiction and venue over all matters relating to such preliminary relief.

Thank you for reading our Terms of Use. We hope you enjoy your experience with Brainberg.