1. WHO WE ARE
Jombay, which owns and operates the Sites, has its principal place of business at 201, Tiara Spaces, Above KFC Restaurant, Baner Mahalunge Road, Baner, Pune – 411045, India. More information about Jombay and its network of Programs can be found at www.jombay.com/contact-us Jombay is a talent assessment and talent analytics platform powered by Data Analytics and People Science (aka Psychometrics – a powerful science of assessing people). We help companies make data driven decisions around recruitment, performance management and development.
2. PERSONAL INFORMATION WE COLLECT
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 Jombay 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 Jombay 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 Jombay 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.
We may use (or may contract with service providers to use) various technologies to collect information aboutyour activities on our Sites.
- 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 Jombay 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 Jombay. 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 Jombay Member is registered with the telecom service provider under the category Do Not Disturb / National Customer Preference Register the Email/SMS/Calls from Jombay 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 Jombay 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 Jombay 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
Data protection is concerned with the protection of your fundamental right to privacy and your right to exercise control over how your personal information
is used. Jombay will make sure that the data they are handling is safeguarded from additional processing. We have effective technical and organizational security measures in place in order to protect personal data from unauthorized usage, loss, damage, alteration.
1.We ensure data accuracy and integrity, have implemented security practices to minimize the risk of data theft.
2. Jombay has a system for handling personal data breaches. We are obligated to notify the public authority within 72 hours of such breach.
3. To access, correct or raise inquiries concerning your personal information in our possession, please email us at firstname.lastname@example.org or contact us at: Privacy & Data Protection Office Jombay, 201, Tiara Spaces, 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 Jombay 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 notifcation). Your continued use of our Sites following such posts or notices will signal your acceptance of such changes.
Last Updated: May 13, 2014
© 2014 Jombay. 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 Jombay;
- To the maximum extent permitted by law, Jombay 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 Jombay immediately of any unauthorized activity using your account information or if you suspect that the confidentiality of your account information has been compromised.
The Licensor grants to the Authorized user revocable, non-exclusive, nontransferable, limited right to install and use the application on single mobile device owner and controlled by the Authorized user and to access the same on such mobile device strictly in accordance with the terms and conditions of this License, the Usage rules and the terms and conditions as agreed upon between the Licensor and the Licensee “The Authorized user shall not make any attempt or shall not decompile, reverse engineer, disassemble, attempt to derive the source or decry the application or make any modification, use the same for any commercial
enterprise or other purposes for which it is not designed or intended. The Authorized user shall not use any proprietary information or interfaces of the Licensor or the Licensee or other intellectual property of the Licensor or the Licensee in the use for its intended purpose. The Licensee has the right to suspend or terminate the access or use without any notice to the Authorized user. On demand you shall cease all use of the application and uninstall the application. Access to the application and the training material, is available to the Authorized user on the basis of providing the name, telephone no. and the racf id of the Authorized user which is strictly for the purposes of access to the application, and by downloading the application the Authorized user consents to the same in relation to any downloading or storage of the same by the Licensor or the Licensee.
Disclaimer of Warranties
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.
Jombay 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.
- Jombay 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, Jombay 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.
Limitation of Liability
To the extent not prohibited by applicable law, Jombay 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 Jombay 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;
- Unauthorized 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 Jombay for lost data, re-run time, inaccurate output, work delays or lost profits resulting from the use of content. You agree to hold Jombay harmless from, and you covenant not to take any legal action against Jombay for any claims based on using the Site, whether in contract (including fundamental breach), tort (including negligence) or otherwise except where Jombay 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 Jombay has no control over such sites and resources, you acknowledge and agree that Jombay 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 Jombay 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.
Terms of Business
These terms apply to the purchase of Jombay products and services as stated in a corresponding Order.
1. Definitions and Interpretation
In these terms, the following words have the following meanings: “Agreement” means the agreement for Jombay 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 Jombay; “Output” means any physical reports Jombay 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 Jombay agrees to supply Company in an Order; “Service” means the service Jombay agrees to supply Company in an Order, including online and consultancy services as further described in the Product and/or Services Schedule; “Jombay” means the local Jombay entity supplying the Products and/or Services to Company “Jombay” means Jombay, all Jombay aliated companies, subsidiaries and its parent company “NextLeap Career Solutions Pvt. Ltd.” “Jombay Partner” means a Company or individual who purchases Products and/or Services from Jombay
1) to enable the Company’s clients to manage their internal human resources under a partnering agreement with Jombay or
2) to use with third parties or resell solely as permitted by Jombay
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 Basis of Agreement
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.
Jombay 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 Jombay 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 Jombay when:
(i) Jombay countersigns such Order or
(ii) when Jombay issues a written acknowledgement to Company, or
(iii) upon delivery of the Products and/or Services to Company. Unless otherwise stated, a quotation Jombay 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 Jombay (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 Jombay reasonable assistance required to facilitate delivery of Products and/or Services to Company. Jombay 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.
3. Price and Payment
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. Jombay 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 Jombay Products and/or Services is due without deduction, demand or set o or withholding within 30 days after the date of the invoice. If Company is required to withhold tax on any amount payable to Jombay under this Agreement, Company will deliver to Jombay 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, Jombay 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
Jombay 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 noties Jombay 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 Jombay’s Products and/or 1 month of the date of Jombay’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 Jombay Products without Jombay approval; or
(b) if the total price for Jombay’s Products and/or Services has not been paid by the due date for payment
(c) if Company cannot provide Jombay evidence of the claimed defect or problem such that Jombay can reproduce the claimed defect.
4.3 Other Warranties
The express warranties set out in the Agreement are the only warranties given by Jombay 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, Jombay’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) Jombay’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 Jombay’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) Jombay does not recruit or select candidates and is not operating as a recruitment agency; and (iii) Jombay is not responsible for the acts or omissions of the Company, including but not limited to (a) Company’s selection of Jombay tests without a specific written recommendation from Jombay, and (b) Company’s use of Jombay 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 Jombay’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 Jombay the cancellation charges specified in an Order or, under a statement of work, the fees based on the percentage of work completed by Jombay up to the date of termination.
7. Intellectual Property
7.1 IP Ownership
Company will at all times remain the owner of any property (including Intellectual Property) which Company provides to Jombay. Jombay, 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 Jombay or on its behalf in the course of Jombay’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 Jombay’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 Jombay Group or its licensors. Jombay hereby grants Company a non-exclusive, nontransferable 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, Jombay 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 Jombay 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 Jombay’s reasonable requests for the provision of information or other assistance relevant to the claim; and
(iii) agrees to Jombay’s sole control of any defence or settlement; and
(iv) does not engage in any public statements, discussions settlement negotiations or make any oer to settle, nor make any admission of guilt or
fault, without the express prior consent of Jombay.
(b) Subject to the terms of this section 7.3, Jombay will either:
(i) obtain for Company the right to continue using Products and/or Services,
(ii) replace or modify the aect Product or Services so they become noninfringing, or refund to Company the amount(s) paid to Jombay 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 aect the Intellectual Property rights in the Products and/or Services;
(ii) adversely aect the reputation of the Jombay 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 Jombay, or otherwise.
(d) Jombay 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 Jombay, and
(iii) not create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of Jombay 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 Jombay’s tests and proper test usage that inform and underpin this process.
(c) Where Company is a Direct Customer, Jombay grants Company a nontransferable, 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 Jombay to be a Jombay Partner, Jombay grants Company a non-transferable, and nonexclusive 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.
8. Data Protection
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 authorized to process data for the Data Controller or person, excluding the Jombay 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) Jombay Online Service – Company provides Jombay with Candidate Personal Data, including information to contact Candidates (“Candidate Data”). Jombay 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 Jombay 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 Jombay 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 Jombay Group will take appropriate steps to ensure Company’s information is adequately protected.
(b) Jombay may disclose Personal Data to Third Parties (outside the Jombay Group) in the following limited circumstances:
(i) if Jombay Group buys or sells any business assets,
(ii) if Jombay Group contracts with Third Parties to perform or provide certain services on behalf of a member of the Jombay Group, or
(iii) if Jombay Group is under a duty to disclose or share Personal Data to comply with any legal obligation. Jombay will contractually require any buyer of Jombay assets that include Personal Data or any Third Party performing services on Jombay’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. Jombay acts as the Data Processor in respect of the Candidate Data, Assessment Data and in producing the Output. Jombay 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 Jombay acts as Company’s Data Processor, Jombay 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 modication or unlawful destruction or accidental loss. Jombay Group and any Third Party Jombay 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) Jombay 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) Jombay 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 authorities Jombay to use Assessment Data and Results Data for assessment validation and benchmarking purposes. Jombay uses such Assessment Data and Results Data, along with Research Data, to ensure that the Jombay psychometric instruments remain fair and objective to prevent unfair discrimination, and to benchmark tests against industry recognized differences for particular groups. Jombay 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 Jombay Group employees directly involved in research supporting Jombay Group products and services. Jombay 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. 10. General
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 Jombay, 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 fulfill its obligations to the other due to an event outside the affected party’s
Jombay may request:
(a) use of Company’s company name and logo in Jombay’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 Jombay’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 Jombay 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 Jombay Business Manager with a copy to the following: Jombay,
Attention: Head of Legal 201, Tiara Spaces, 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. Jombay may, however, sub-contract its obligations to group companies, approved distributors, partners, associates or other qualified subcontractors provided that Jombay will remain at all times responsible to Company for Jombay’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 Laws and the parties irrevocably submit to the exclusive jurisdiction of the Pune courts.
Product and Services Schedule:
This Product and Services Schedule contains additional terms that applyto Products and/or Services that Company may Order under this Agreement.
A. Jombay Online Services
1. Software as a Service
(a) Company may order Jombay access to the Jombay online talent management services (“Jombay Online Service”) on a Subscription or Unit purchase basis (as such terms are dened below). The Jombay Online Service may require an Order for Services to establish links with Company’s website and configure access to the Jombay Online Service for Company’s purposes. This may include delivery of Jombay 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 Jombay Online Service.
2. Jombay Subscription
(a) The Jombay Online Service may be purchased by “Subscription”, which provides Company with access to Jombay 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, Jombay 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 Jombay 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 Jombay Online Service after expiration, Jombay 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 Jombay Online Service. Jombay 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 Jombay Online Service will be charged at Jombay’s standard rates for the Units used.
3. Jombay Tests
(a) If Company purchases Tests under the Jombay Online Service, the appropriate number of Tests will be deducted from Company’s account
whenever Company runs an Jombay report or a Company candidate starts an
Jombay online test.
(b) Tests remain on Company’s account for use on the Jombay Online Service for 1 year 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 Jombay 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 Jombay Online Service and who are responsible for the use or misuse of the Jombay Online Service. Company will instruct its employees to keep condential any username and password assigned by Jombay. Company must notify Jombay of any actual or anticipated unauthorised access to or use of the Jombay Online Service as soon as Company becomes aware of such actual or anticipated unauthorised access.
6. Fair Use
Where Company has agreed with Jombay an estimated annual usage and if Company’s actual usage is significantly different, Jombay 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 Jombay are unable to resolve this issue with Company through agreement, Jombay 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.
7. Support, Maintenance and Upgrades
(a) Jombay provides Company with Jombay customer support services for administrators at no additional cost in accordance with Jombay 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 Jombay by Company.
(b) Jombay will use all commercially reasonable endeavours to have the Jombay Online Service generally available for use except for scheduled maintenance periods (which are published in advance) or unscheduled maintenance required to address system issues. Jombay will conduct system upgrades to Jombay Online Service from time to time and are generally provided at no additional cost to Company. Jombay 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 Jombay 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), Jombay will inform Company as soon as is reasonably practicable where such breach or remedial action directly affects Company’s data.
Access to Jombay’s online systems is dependent on third parties, such as internet service providers. Jombay will have no liability to Company for any losses Company suffers resulting directly or indirectly from:
(a) failures of performance on the part of Jombay’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 Jombay’s provision of system upgrades or maintenance; or
(d) any security breach of Jombay’s system unless such breach is shown to be the result of Jombay’s negligence; or
(e) inability to access the Jombay Online Service in any one country due exclusively to Jombay’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.
B. Test Usage
1 Jombay Competency Framework (JCF)
(a) Licence For Direct Customers: Direct Customers may purchase licence to use Jombay’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 Jombay 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 Jombay’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 Jombay’s JCF content or derivatives is only for Company’s internal business use; and
(ii) Jombay 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 Jombay and Jombay grants Company a non-exclusive right to use such derivative content in accordance with this Agreement; and
(iii) any publication of Jombay’s JCF content or its derivatives will be accompanied with the following copyright notice “ © Jombay. Reproduced or adapted with the permission of Jombay Group Limited.” Jombay has no liability or responsibility to Company for any derivative JCF content which Company creates without Jombay’s guidance or for Company’s use of Jombay’s JCF or its derivatives with any non-Jombay test. Notwithstanding the foregoing, to the extent Jombay assessments use the UCF content within a report or Output, Jombay grants a licence only to the included JCF content for use within such report or Output and for no other purpose.
(b) Licence for Jombay Partner: Jombay Partners who wish to map competencies to or from any Jombay test or use Jombay’s JCF content or create JCF derivative works, must obtain Jombay’s prior written consent and subject to additional terms which Jombay may agree with Company.
2 System Licences – UK
A System Licence is an annual licence for use of an implemented Jombay Online Service. As part of the System Licence, Jombay 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 Jombay products;
(b) Customer technical support via the Jombay Client Helpdesk;
(c) One annual online system training session to ensure quick and easy use and familiarity with any modications / upgrades for the licence year; and
(d) Updates and maintenance to the Jombay 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 Jombay’s online training manual and obtained a valid Jombay tester licence (“Registered User”) or a Company relying on such Registered User. A Registered User must promptly notify Jombay 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 Jombay.
(b) Jombay Product Licences: Registered Users or a Company relying on such Registered User, is required to purchase an annual non-exclusive, nontransferable Jombay Product Licence for such Registered User to order (on their own behalf or on behalf of a Company) controlled tests from Jombay for the Controlled Territories. The Registered User or Company may cancel its Product Licence by giving Jombay at least 30 days written notice before its expiry and returning all Jombay 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. Jombay reserves the right to terminate the Product Licence at any time if the Registered User or Company is in breach of the Agreement.
C. Jombay Partner
Limited Partner Rights
If a Company or individual has not entered into a separate partnering agreement, it may only purchase Products or Services from Jombay 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 Jombay Terms of Business;
(f) be required to grant Jombay all the rights stated in section 8 Data Protection of the Jombay Terms of Business;
(g) not represent itself as Jombay, a licensed partner, a distributor or an agent of Jombay or Jombay Group.
© 2014, Jombay. All rights reserved.
Version 01. Last modified 10 May 2014.