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TERMS OF USE
May 3, 2021

The following terms constitute a legally binding agreement (“Agreement”) between you and Sulekha.com New Media Pvt Ltd (Sulekha/Capshine) governing use of its product Capshine Platform (www.capshine.com) and related mobile applications (together referred to as ‘Platform’) and any transactions performed in the Capshine platform. The expressions “You” "Your" or "Instructor(s)" refers to any person who accesses or uses the Capshine platform for any purpose and we,” “us,” “Company” or “our” refers to entity that you are contracting for the service i.e., Sulekha.com New Media Pvt Ltd. These Terms constitute an electronic record in accordance with the provisions of the Information Technology Act, 2000 and the Information Technology (Intermediaries guidelines) Rules, 2011 thereunder, as amended from time to time.

By subscribing to or interacting with User(s) on or entering into negotiations in respect of need or performing any services or using the Capshine platform in any manner for any purpose, you undertake and agree that you have fully read, understood and accepted the agreement. If you do not agree to or do not wish to be bound by the agreement, you may not access or otherwise use the Capshine platform in any manner. This Agreement applies to any person who accesses or uses the Platform for any purpose. It also applies to any legal entity which may be represented by any person who accesses or uses the Capshine platform, under actual or apparent authority. User(s) may use this Capshine platform solely for their commercial/business purposes.

  1. Description of Capshine

    Capshine platform is a cloud-based facility that enables online education through interaction and exchange of knowledge about a specific course content between Instructor and the Student/User. Technical facilities and tools with video, audio and document interface are offered by Capshine to both users and Instructor for conducting live/ recorded classes/sessions or any communication that facilitates the same.

  2. Definition
    1. "Content" means text, graphics, images, software, audio, video, information or other materials.
    2. "Collective Content" means, collectively, Capshine Content and User Content.
    3. "Lesson services" means, services provided by the Instructor as courses listed in Capshine platform
    4. "Instructor" means person or entity imparting skills or educating the student and offering related services.
    5. "Capshine Content" means Content that Capshine makes available through the Capshine platform, including any Content licensed from a third party, but excluding User Content.
    6. "User" means a person who seeks and/or schedules Lesson Services for a student or for himself/ herself (e.g. a student, parent or guardian).
    7. "User Content" means Content that an Instructor or User posts, uploads, publishes, submits or transmits to be made available through the Site or Services in connection with the Lesson Services or otherwise, including, but not limited to, Questions and related answers posted by Users and Instructors via the Services.
    As an Instructor, your use of the Services is governed by the policies, terms and conditions herein.
  3. Using the Capshine platform and Eligibility:

    Instructor shall provide the following government approved Identity proof, address proof and bank account related details and such other documents as may be requested by Capshine from time to time before providing services under the agreement. In order to use the Capshine platform:

    1. You must be 18 (eighteen) years old, authorized to conduct business in India;
    2. You have the authority to accept and agree to this terms of use. In case of an entity you must be an authorized representative with authority to bind that company or entity to these terms;
    3. You are not 'incompetent to contract' within the meaning of the Indian Contract Act, 1972;
    4. We reserve the right to immediately terminate your account without any notice if we have reason to believe that your account is being used by any person who is not eligible, if the class is being conducted in a manner that does not meet standards, causes harm to the brand or Capshine platform or for any other reason.
  4. Rights & Permissions

    Subject to these Terms of Use, we grant you a limited, non-exclusive, non-transferable, and revocable license to use Capshine Platform (Capshine). You agree that you will create, access, and/or use only your account, and you will not share with any third-party access to or access information for your account. At time of creation of account, you agree to provide accurate and complete information, and you agree to update your information to keep it accurate and complete.

    Instructor shall not publicly share any data/content listed in Capshine platform which contains information about the students.

    You are prohibited from using Capshine:
    • to infringe the rights of any person or entity,
    • in, or in association with, any product marketing, promotional, or commercial activities, including, without limitation, in, or in association with, advertisements, product brochures, company-sponsored web sites, annual reports, or other non-educational publications or distributions;
    • in, or in connection with, the promotion of a commercial enterprise and/or its product(s) or service(s), and/or in any way that suggests that Capshine endorses any specific company or product(s);
    • in any way which is contrary to the policies and principles of Capshine and/or which might otherwise jeopardize the name or reputation of Capshine;
    • to harass or “spam” others, or to distribute malware, spam or any other unwanted activity or content;
    • in any manner which is, or could be considered to be, illegal, or promoting illegal activities; or
    • in any manner which is in violation of these Terms of Use
    You are further not permitted to do any of the following with or relating to Capshine:
    • sharing your password, let anyone access your account, or do anything that might put your account at risk;
    • attempting to access any other user's account;
    • reproducing, transferring, selling, reselling, or otherwise misusing any content from Capshine;
    • accessing, tampering with, or using non-public areas of Capshine;
    • breaking or circumventing Capshine’s authentication or security measures or otherwise testing the vulnerability of Capshine;
    • trying to reverse engineer any portion of Capshine
    • trying to interfere with any user, host, or network, for example by sending a virus, overloading, spamming, or mail-bombing;
    • impersonating or misrepresenting your affiliation with any person or entity; or
    • encouraging or help anyone do any of the above.

    Capshine may screen or monitor content provided by users, and may remove or edit inappropriate content or activity reported to us or suspend, disable, or terminate a user's access to all or part of Capshine.

  5. Learners Code of Conduct
    1. I will not submit, post, publish, share, or otherwise distribute any of the following Strictly Prohibited elements.
    2. Content that defames, harasses, or threatens others.
    3. Content that discusses illegal activities with the intent to commit them.
    4. Content that infringes another's intellectual property, including, but not limited to, copyrights or trademarks.
    5. Profane, pornographic, obscene, indecent, or unlawful content.
    6. Advertising or any form of commercial solicitation.
    7. Content related to partisan political activities.
    8. Viruses, trojan horses, worms, time bombs, corrupted files, malware, spyware, or any other similar software that may damage the operation of another's computer or property; and
    9. Content that contains intentionally inaccurate information or that is posted with the intent of misleading others.
  6. Role Of Capshine

    Capshine acts only acts as a facilitator between the Instructor and User. The transaction is always between the Instructor and the User. It is the sole responsibility of the Instructor to ensure they have all the requisite licenses; approvals and all other legal requirements are complied to undertake and perform services booked. Capshine gives no warranty or assurance in regards to requisite licenses, approvals and other documents which the Instructor is supposed to obtain from appropriate authorities.

    Capshine shall not be responsible in any manner whatsoever for any claims with respect to the services including without limitation, claims pertaining to timeliness, safety, continuity, quality, lesson services, conduct of users , Instructors or other users of the site or services or any act or omission of Instructor causing any damage/ risk to the User and vice versa.

    Capshine disclaims and shall disclaim all representations and warranties to the user, of any kind, whether express or implied as to condition, suitability, quality, merchantability and fitness for any purposes in respect of any and all the services that is offered by Instructor and/ or that are used by the users as a part of the service offered through Capshine platform.

    Without prejudice to the above, Capshine makes and shall make no representation or warranty to the user that the service of Capshine will meet your requirements or the service provided by Capshine will be uninterrupted, timely, secure, or error-free.

    Capshine shall not be responsible or liable for any loss or damage, how so ever caused or suffered by the Instructor arising out of the use of the service offered by Capshine or due to the failure of Capshine to provide services to the user for any reason whatsoever including but not limited to any users’ non-compliance with the services offered by Capshine, which includes, but is not limited to any incorrectly placed voice instructions, malfunction, partial or total failure of any network terminal, data processing system, computer tele-transmission or telecommunications system or other circumstances whether or not beyond the control of Capshine or any person or any organization involved in the above mentioned systems. Capshine will not be liable to User or to any other person for any direct, indirect, incidental, punitive or consequential loss, damage, cost or expense of any kind whatsoever and howsoever caused from out of the information derived by User through usage of Website, in so far as such information is provided by the Instructor.

  7. Security & Data

    Capshine shall use all commercially reasonable efforts to provide accurate and fit for purpose data security and systems security which includes system level access security measures and data-level access security measures. Capshine shall use commercially reasonable efforts to ensure that all relevant data on its cloud server or other relevant computer systems hereunder are backed up on a regular basis.

    In case of any attempt by any parties to infringe security systems, Capshine will have the right to investigate and prosecute violations of any of the above to the fullest extent permitted by applicable law. Capshine may involve and cooperate with law enforcement authorities or third parties in investigating and prosecuting users who violate these Instructor Terms of Service or any other policies applicable to use of the Services. Capshine acts as a technology service that facilitates the provision of Lesson Services between Instructors and Users. You acknowledge that Capshine has no obligation to monitor your access to or use of the Site, Services or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Instructor Terms of Service or any other policies applicable to use of the Services, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Capshine reserves the right, at any time and without prior notice, to (i) remove content from the Service at any time for violations of these Instructor Terms of Service or other policies applicable to use of the Service; (ii) give an Instructor the opportunity to amend content it believes to be in violation of these Instructor Terms of Service or other policies applicable to use of the Service.; and (iii) take appropriate action against an Instructor. Nonetheless, you agree that, to the fullest extent permitted by applicable law, Capshine is not responsible for any User Content or any Instructor's failure to comply with these Instructor Terms of Service or other policies applicable to use of the Service. Without limiting the terms of the "Limitation of Liability" section below and to the fullest extent permitted by applicable law, Capshine is not responsible for the use or exchange of any information, files or goods between Instructors and Users.

  8. Instructor Terms Of Use:
    1. To Use the Services, you must provide us with the following "Registration Data", a valid and functional e-mail address ("Registered E-mail ID"); a valid and functional phone number registered in your name ("Registered Phone Number"); a password; valid Bank/Card details (for example, Bank Account No, IFSC Code, Bank Account No, Card No, Card Expiry details etc.) and any additional information that RBI Regulations may prescribe to be necessary to satisfy Know Your Customer norms ("KYC Norms"), or as we deem fit.
    2. The Registration Data and any other information provided by you to us must be accurate, current and complete information about yourself or your company as prompted by our registration form, (including your email address) maintain and update your information (including your email address) to keep it accurate, current and complete. Any liability for false, fictitious, inaccurate, not current or incomplete Registration Data provided by you will be borne solely by you and not us.
    3. The Instructor confirms that Capshine does not own or in any way control contents uploaded in the Capshine platform for rendering the said service/s to the user. Capshine shall not be held liable or responsible in any manner whatsoever for any insufficiency or deficiency of service rendered by the Instructor to the user.
    4. The Instructor shall be liable to Capshine for any loss caused to Capshine due to the negligence of the Instructor and/or his/her appointed operators/ contractors and or any unlawful act or omission in the performance of the services. Without prejudice to the above, Capshine shall not be liable for any direct or indirect loss or damage, which may be suffered by the Instructor as a result of any failure by negligence or fraudulent act committed by user.
    5. The lesson services may be carried out by the Instructor either directly or through their employees/ representatives. However, the services provided through Capshine platform shall be of the highest quality as per industry standards and in accordance and requirements of Capshine. The Instructor shall be liable to Capshine for any loss caused due to the negligence of the Instructor and/or his/her employees/ representatives in the performance of the services.
    6. The Instructor shall indemnify Capshine from and against and in respect of any or all liabilities, losses, charges and expenses (including legal fees and costs on a full indemnity basis) claims, demands, actions and proceedings, which Capshine may incur or sustain directly or indirectly from any breach by Instructor of its obligations hereunder or any breach of any terms or by any reason, or in relation to the provision or proposed provision of the services by Instructor and the Instructor shall forthwith pay all such sums forthwith on demand by Capshine in writing.
    7. Capshine shall be entitled to disclose to all companies within its group, or any of its authorized representative, any government body as may be required by law or by any official directive or request from such government body or any third party through a court process or other official agency, the particulars of an Instructor/ user related data in possession of Capshine, in any way as Capshine, in its absolute discretion, deems fit or if it considers it in its interests to do so.
    8. The calls made by users, or on their behalf to Capshine’ call centre, may be recorded by Capshine or any other agency designated by Capshine, for quality and training purposes.
    9. Capshine’s maximum liability to Instructor in any event, which includes any failure by Capshine under this Agreement, shall be restricted and limited to a maximum amount of INR 1000 (Indian Rupees one thousand Only) in the aggregate during the term.
  9. Instructor Responsibility
    1. The Instructor shall ensure that the user pays the Service Fee (as displayed in the installed technology firmware, or that is otherwise agreed upon by Capshine and the Instructor at the time of hire), additional charges, other charges (where applicable) and any fee or levy presently payable or herein after imposed by law or required to be paid for rendering the service. All Statutory levies, shall be payable by the Instructor.
    2. Instructor shall ensure that all payments, both initial and all subsequent, made by students towards enrolment of the course and/or availing lesson services is made through Capshine platform. Instructor shall, under no circumstances, collect payments directly from the student, bypassing the Capshine platform payment gateway.
    3. Instructor shall also ensure that all sessions will be conducted and all coaching and training will be given to students through the Capshine platform only and not outside of it.
    4. The Instructor will have a functioning mobile number and also have the ability to read and send SMSs from Capshine, regarding the user details, services rendered, amount paid by the user and to convey user feedback. Instructor shall maintain all documents pertaining to the personal details and whereabouts of all its authorized executives.
    5. In case of live sessions, Instructor shall make himself available in the Capshine platform at least 5 minutes before the appointed time for rendering the service
    6. Instructor shall ensure that they any material submitted / uploaded does not infringe any third-party rights including intellectual property rights and meet acceptable standards of quality.
    7. Instructor agrees to ensure that it shall not use any foul language or improper conduct while rendering lesson services in the Capshine platform. Instructor shall not discuss any fees (charged or outstanding) with any student/parent or another Instructor.
    8. Instructor shall always be punctual and maintain professional conduct. Instructor shall communicate effectively with both students and parents, addressing any questions appropriately and professionally
    9. Any payment related issues with a user will be dealt by Capshine and Instructor (and not by the Instructor’s directly with user).
    10. Instructor shall
      1. Ensure proper behavior and decorum while rendering lesson services
      2. Not perform any act that is illegal, false, fraudulent or misleading.
      3. Not engage in any activity that exploits, harms, or threatens to harm students.
      4. Not share any unwanted or unsolicited email, postings, contact requests, SMS (text messages), or instant messages with either students or Capshine personnel.
      5. Not publically display or use the Capshine platform to share any inappropriate content or material (e.g., pornography, graphic violence, racially discriminative statement etc.)
      6. Not circumvent any restrictions on access to or availability of the Services.
      7. Not engage in any activity that is harmful to yourself, the Capshine platform or others. ( e.g.: stalking, hate speech, spreading propaganda advocating violence against others)
      8. Not engage in any activity that affects the privacy of others ( e.g.: sharing photos, contact numbers, email id, copyrighted material etc. without prior consent)
      9. Not use Student information for marketing or advertising purposes
      10. Not help any person/entity in breaching the terms of use of the Capshine platform.

      Capshine reserves the right in its sole discretion to initiate action against the Instructor including but not limited to immediate termination of services, withhold payments, and claim for damages and initiate civil / criminal proceedings against the Instructor for as per applicable law.

    11. Audits may be carried out by Capshine with/without prior notice to ensure the quality of services and Instructor shall facilitate such audit. Further, the Instructor accepts to address any constructive feedback offered to improve the quality of instruction
    12. Any complaint/s by users regarding the lesson services, the behavior of Instructor’s executive will be considered to be a breach of the Instructor’s obligations hereunder. If there are more than 2 (Two) complaints regarding any particular Instructor, then Capshine may in its sole discretion require inter alia that such services/Instructor’s executive be withdrawn/changed from Capshine platform.
  10. Warranties
    Instructor expressly warrants that:
    1. It has full power and authority to accept/execute and perform this Agreement, and the execution and performance of this Agreement shall not violate any law or agreement to which they are a party or by which it is otherwise bound.
    2. perform its obligations in a timely manner
    3. cooperate with Capshine and users where necessary for the performance of such obligations
    4. devote such attention and skill as may be reasonably necessary for the proper and efficient performance of its obligations under the agreement.
    5. shall comply with all applicable laws and shall not infringe any intellectual property rights or third party rights;
    6. free from defects and any improper / unlawful content
    7. fit and sufficient for the purposes intended;

    All warranties specified herein shall be in addition to any other warranties, express, statutory or implied.

  11. Copyright

    Capshine may, from time to time, request Instructors to produce a wide variety of content – e.g., stand-alone videos, courses, quizzes, etc. as part of from Capshine. This shall be used for:

    1. Marketing purposes both on and off Capshine
    2. Syndication purposes
    3. Free consumption on Capshine
    4. Pay per view or pay per download
    5. View as part of a content subscription

    Instructor agrees to give Capshine the rights for a period of ten years to use the content as listed above, free of cost and royalties. Capshine reserves the right to organize such content with content produced by other Instructors to form courses and other material for students. In all cases, the Instructor will be identified as the author of such content. Instructor and Capshine agree to arrive at a mutually satisfactory revenue sharing agreement when students are paying for such recorded content.

  12. Disclaimer

    The site and services are provided "as is," "where is," "as available," "with all faults" and, to the fullest extent permitted by law, without warranty of any kind. Capshine and its licensors disclaim all warranties with respect to the site and services, including the implied warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties regarding quiet enjoyment, quality of information, security, reliability, timeliness, availability of backed-up data and performance of the site and services. Capshine does not warrant that the site or the services will meet your requirements, or that the operation of the site and services will be uninterrupted or error-free, or that defects in the site and services will be corrected, or that encryption algorithms, associated keys and other security measures will be secure or effective. Capshine does not warrant that provision of lesson services will produce any level of profit or business for you or lead to economic benefit.

    You acknowledge and agree that Capshine does not operate or control the internet and that (i) viruses, worms, Trojan horses, and other undesirable data, or software, or (ii) unauthorized users (e.g., hackers) may attempt to obtain access to and damage your data, websites, computers, or networks. Capshine shall not be responsible for such activities. You are solely responsible for the security and integrity of your data and systems. No advice or information, whether oral or written, obtained from Capshine or through the site, services or collective content, will create any warranty not expressly made herein.

    You are solely responsible for all of your communications and interactions with Instructors and other users of the site and services and with other persons with whom you communicate or interact as a result of your use of the site or services, including, without limitation, any interaction with Instructors or users via the services or otherwise. You understand that Capshine makes no representations or warranties as to the conduct of Instructors, users or other users of the site or services or their compatibility with any current or future users or users of the site or services. You agree to take reasonable precautions in all communications and interactions with other users of the site and services and with other persons with whom you communicate or interact as a result of your use of the site or services.

  13. Content

    Instructor shall be responsible for planning each lesson and ensuring you have obtained any relevant materials (worksheets, books, instruments, etc.) beforehand. Lessons each week must cover the topics highlighted in the syllabus provided for each Key Stage. All Instructors are encouraged to make the lessons as interactive as possible. This can be through the use of presentations, group work and general discussions focusing on certain aspects of the students’ work or task.

    Both Instructor and User shall retain ownership of data submitted in the Capshine platform. User Generated Content ("UGC") refers to the content added by users as opposed to content created by the Site. All content uploaded to Capshine by our users (Instructors and Students) is User Generated Content. Capshine will have rights to the use of UGC content for marketing and syndication purposes. Capshine does not check user uploaded/created content for appropriateness, violations of copyright, trademarks, other rights or violations. We invite everyone to report violations together with proof of ownership as appropriate. Reported violating content will be removed or disabled within a period of 14 days after investigation. Any content jointly produced by both Capshine and the Instructor will be usable by either party subject to reasonable commercial terms agreed in writing.

    Furthermore, Capshine is not responsible for the content, quality or the level of service provided by the Instructor. We provide no warranty with respect to the classes/lessons, their delivery, any communications between Students and Instructor, and book materials shared in the classes.

  14. Limitation Of Liability

    You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the site, services and collective content remains with you. To the maximum extent permitted by law, neither Capshine nor any other person or entity involved in creating, producing, or delivering the site, services or collective content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Instructor terms of service or from the use of or inability to use the site, services or collective content, or from any communications, interactions or meetings with Instructors, users or other users of the site or services or other persons with whom you communicate or interact as a result of your use of the site or services whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Capshine has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.

    To the maximum extent permitted by law, in no event will Capshine's aggregate liability arising out of or in connection with these Instructor terms of service or from the use of or inability to use the site, services or collective content exceed the Instructor payment amounts Capshine has paid to you in connection with your provision of lesson services via the site and services or Rupees one thousand only (INR 1000) (whichever is greater). The limitations of damages set forth above are fundamental elements of the basis of the bargain between Capshine and you.

    The limitations set forth in this section will not limit or exclude Capshine’s liability for Capshine’s gross negligence, fraud or intentional, willful, malicious or reckless misconduct.

    EXCEPT FOR CLAIMS OF GROSS NEGLIGENCE, INFRINGEMENT OF RIGHTS, WILLFUL MISCONDUCT OR FRAUD, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES. THE MAXIMUM AGGREGATE LIABLE OF CAPSHINE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES SHALL BE INR 1000/- (RUPEES ONE THOUSAND ONLY).

  15. Use Of Capshine's Name

    Instructor may not use Capshine’s name and/or logo in any manner other than as identified in this clause without first obtaining written permission from Capshine. Any other use of Capshine’s name, including use of Capshine’s logo or discussion of the work performed by Instructor for Capshine, is not authorized.

  16. Confidentiality

    Notwithstanding anything to the contrary in this service order, neither party may disclose confidential information of the other to a third party as may be required by law, statute, rule or regulation, including any subpoena or other similar form of process until the party to which the request is made provides the other Party with prompt written notice and allows the other party to seek a restraining order or other appropriate relief.

  17. Indemnification

    To the fullest extent permitted by law, Instructor agrees to indemnify and hold harmless Capshine, its officers, directors, employees and agents from and against all claims, suits, damages and losses, including reasonable attorneys’ fees and expenses, arising out of or in any way connected with your access to or use of the Site, Services or Collective Content, your provision of any Lesson Services, or your violation of these Instructor Terms of Service or any other policies applicable to use of the Services. The obligations set out herein shall survive the expiration or termination of this agreement.

    Instructor agrees, if asked by Capshine, to defend Capshine against all claims, suits, actions, or proceedings involving intellectual property infringement in which Capshine is named a defendant or co-defendant, including but not limited to, actual or alleged infringement of any domestic or foreign patent, trademark, copyright, or trade secret, resulting from its use of Capshine platform. Instructor also agrees to pay for any costs of such defense, including legal fees; and further agrees to pay and discharge any judgments, awards or decrees which may be rendered in any such suit, action, or proceeding against Capshine for such alleged infringement. If Capshine is prevented from using services provided hereunder, Capshine shall be entitled to appoint other third parties for providing the aforementioned services at Instructor cost.

    After receipt by a party, its officers, directors, employees, agents or affiliates entitled to indemnification (“indemnified party”) of notice of the commencement of any action, if a claim in respect thereof is to be made against the other party (“indemnifying party”), the indemnified party shall promptly notify the indemnifying party in writing of the commencement thereof as soon as practicable after the summons or other first written notification giving information of the nature of the claim has been served upon the indemnified party; provided that the failure to so notify the indemnifying party will not relieve the indemnifying party from any liability under this section, except to the extent that the omission results in a failure of actual notice to the indemnifying party and such indemnifying party is damaged solely as a result of the failure to give such notice. The indemnifying party, upon the request of the indemnified party, shall retain counsel satisfactory to the indemnified party to represent the indemnified party in the proceeding, and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the reasonable fees and expenses of such counsel shall be at the expense of such indemnified party unless (1) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (2) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.

  18. Notice

    All notices and other communications hereunder shall be in writing, delivered to the office address of parties as provided at the time of registration, and shall be deemed to have been duly given: (i) if sent via or electronic mail, then upon the date and time of actual receipt; (ii) if sent via registered post, return receipt requested, postage prepaid, then upon the date and time return receipt delivery is attempted by the Indian Postal Service; (iii) if delivered by courier for hand-delivery, then upon the date and time of actual delivery;

    Notices to Capshine: The Grievance Officer Capshine.com New Media Pvt Ltd No. 143, Second Floor, RMZ Millennia Business Park Campus 1A, Dr. MGR Road, Kandanchavadi Chennai, Tamil Nadu, India – 600096 Email: nodal@Capshine.net
  19. Non Disparagement

    Instructor agrees that, while using the Capshine platform or at any time thereafter, you shall not make any public statement that is materially disparaging of the business of the Company or its affiliates, or to the business reputation of any of the executive officers of the Company or its affiliates or any of the employees of Company or its affiliates who are known to you to be employees of Company or its affiliates at the time of any such public statement. Instructor and User agrees not to criticize, disparage or otherwise demean in any way the other or Company’s affiliates or their respective products, services, technologies, officers, directors or employees. Your obligations under this Section shall not apply to disclosures required by applicable law, regulation, or order of a court or governmental agency.

  20. Interity
    1. Instructor agrees to adhere to the highest standards of ethical competence and integrity in the performance of this agreement, having due regard for the nature and purposes of Capshine as an international organization, and to ensure that employees assigned to perform any Contract Work will conduct themselves in a manner consistent therewith.
    2. Instructor represents and warrants that it is in compliance with and shall continue to comply with, all applicable laws, ordinances, rules, regulations, and lawful orders of public authorities of any jurisdiction in which work shall be performed under this agreement.
    3. Instructor and Instructor’s employees, Subcontractors and Subcontractor’s employees shall, during the term of the agreement, strictly avoid any activities that may create real or apparent conflicts of interest with their duties to Capshine under this agreement.
    4. Instructor warrants that no official of Capshine Group has received or will be offered by Instructor any direct or indirect gifts, favors or benefit arising from this agreement or the award thereof.
    5. Instructors agree to be on the Capshine platform for a period of at least two years, offering a minimum of 14 hours per week of training, except in case of health or any other special circumstances. In case of breach of this term Capshine at its discretion shall be entitled to claim the business loss and other loss from the Tutor.
    6. Instructor agrees that, within 30 days of having reasonable grounds to believe that Instructor, Instructor's employees, Subcontractors or Subcontractors' employees have: (i) violated any applicable laws, ordinances, rules, regulations, and lawful orders of public authorities in performing this agreement; (ii) violated terms of this agreement; (iii) engaged in conduct that would lead to suspension, debarment or a finding of ineligibility; (iv) used funds paid by Capshine to Instructor for finance unlawful activity; or (v) an actual, potential or apparent conflict of interest, Instructor will disclose in writing, by providing written notice to Capshine’s legal department (legal@sulekha.net), of such violations, conduct, prohibited use of funds, or conflicts of interest.
    7. Instructor agrees that a breach of this provision is a material breach of an essential term of this agreement.
  21. Commercials
    1. The Instructor shall be able to login to his / her dashboard using the mobile number as provided in Capshine platform by paying a subscription fee.
    2. Under the engagement, the User is required to pay the total booking amount at the time of making the booking inorder to enroll for the classes conducted by to the Instructor.
    3. Instructor agrees to comply with the “satisfaction guarantee” clause offered by Capshine to the students wherein 100% of the money paid by the student is refunded within 7 days after payment and pro-rata amount is refunded subsequent to the first 7 days. Instructor agrees to return the unused pro-rata amount to be refunded to the student if requested by the student.
    4. Payments due to the Instructor will be made once a week to the bank account of the Instructor as provided at the time of registration. The amount would be credited within 10 business days from the date of receipt of the student after the period of “satisfaction guarantee” is completed.
    5. Instructor shall set the pricing for each courses listed by him/her/them in the Capshine platform. Any applicable service fees (including any applicable Taxes) will be displayed to a user prior to booking a class. Capshine reserves the right to change the service fees at any time.
    6. Capshine reserves the right to change the rates & payment terms hereinabove at any given point in time with seven days notice. Capshine shall notify such change in the rates & payment terms to the Instructor from time to time through Capshine platform.
    7. Capshine shall deduct T.D.S and other taxes, as applicable, from the amount paid to the Instructor for the above purpose.
    8. The Instructors availing promotional services of Capshine will be charged for any marketing activity performed by Capshine, according to the campaign for discounted pricing/offers and Instructor will be paid on actuals after adjustments (+/-).
    9. Each Instructor collecting payment for services provided via the Capshine platform hereby appoints Capshine as the Instructor’s payment collection agent solely for the limited purpose of accepting funds from users purchasing such services.
    10. Each Instructor agrees that payment made by a User through Capshine’s Platform, shall be considered the same as a payment made directly to the Instructor, and the Instructor will provide the purchased services to the User in the agreed-upon manner as if the Instructor has received the payment directly from the User. Each Instructor understands that Capshine’ obligation to pay the Instructor is subject to and conditional upon successful receipt of the associated payments from Users. Capshine guarantees payments to Instructors only for such amounts that have been successfully received by Capshine from Users in accordance with these Payments Terms. In accepting appointment as the limited payment collection agent of the Instructor, Capshine assumes no liability for any acts or omissions of the Instructor.
    11. Each User acknowledges and agrees that, notwithstanding the fact that Capshine is not a party to the agreement between you and the Instructor, Capshine acts as the Instructor’s payment collection agent for the limited purpose of accepting payments from User on behalf of the Instructor. Upon User’s payment of the funds to Capshine, Users payment obligation to the Instructor for the agreed upon amount is extinguished, and Capshine is responsible for remitting the funds to the Instructor in the manner described in these Terms, which constitute Capshine’ agreement with the Instructor. In the event that Capshine does not remit any such amounts, the Instructor will have recourse only against Capshine and not the User directly.
  22. Money back scheme

    This applies only to users [who are end service consumers of Capshine] who have paid for a course in our Capshine platform. Capshine offers all users a money back guarantee feature on the Capshine platform where at any point within 7 days after payment of a course if a user determines he/she wants to withdraw from a course due to various reasons, the user is free to do so and the amount he/she paid to Capshine will be refunded fully back to him/her within 7 working days. However if user wishes to submit the request for refund after 7 days, Capshine will process the amount back to the user after deducting the proportionate amount towards the classes attended till the date of request along with other applicable charges.

    Conditions needed to qualify for the money back guarantee to apply:
    1. The user must have paid the entire payment of the course through Capshine platform or site.
    2. The user must submit request for refund within 7 days from the date of payment.
  23. Commission and other fee

    The following is the commissions and fees charged by Capshine from Instructors until further notice:

    1. Capshine will charge 0% commission on payments received from Students who are enrolled by the Instructor.
    2. Capshine will charge 18.5% commission for Students enrolled by Capshine for the Instructor.
  24. Refunds & Support

    Capshine encourages parties (Instructor and Student) are encouraged to resolve disputes amongst themselves. Capshine may process refunds to Students as per the Refunds policy that is existent at that time.

    In case of refund request under money back scheme as defined under clause 21, instructor agrees that Capshine shall be entitled to deduct such amount from the settlement being processed to instructor during this period and process the balance amount towards settlement. Instructor agrees and authorizes Capshine to appropriate the amount from future account balance amounts to the extent of the refund claimed under moneyback scheme and any other moneys due to the Capshine by instructor in terms of this Agreement in respect of any commissions or other charges without any demur, protest, dispute or delay. If there is insufficient funds available therein; the Instructor shall on finding out negative balance in his dashboard and/or on receipt of the e-mail from the Capshine and/ or claim from the Capshine undertakes forthwith without any demur, protest, dispute or delay, to pay to the Capshine, the amount of the dispute / refund to the extent to which such funds proves inadequate. Without prejudice to any other of rights and remedies, in the event that the instructor does not make any payment to Capshine by its due date or on demand as required under this Agreement, Capshine shall be entitled to charge daily interest on such overdue amount from the due date of demand (as the case may be) until the date of payment in full, at the rate of 1 % per month.

    Any default, chargeback, refund, claim observed or received from Student under clause 21 shall be the responsibility of the instructor. The instructor here by indemnifies Capshine for any/all claims , demands and charges arising out of or in relation to clause 21 of this agreement.

    In case of support request, parties are requested to drop in an email to: Email: care@sulekha.com

  25. Settlement

    Instructor agrees and accepts that Capshine shall be required to process settlement of the amounts collected from the user towards service to its registered bank account on a weekly basis after deduction of applicable charges and in proportion to classes conducted in the week. Instructor agrees and accepts that the settlements processed by Capshine shall be credited to it registered bank account within 10 (ten) bank working days.

  26. Agreement

    Instructor shall not assign this agreement or any monies due or to become due to it hereunder, without the prior written consent by Capshine. Capshine may, at its sole option and without the consent of Instructor, assign this agreement and any Contract Work acquired hereunder to any member of Capshine Group.

  27. Disputes

    Any dispute or difference arising out of, or in connection with, this agreement or the breach thereof which cannot be amicably settled between the Parties (including through alternative dispute resolution procedures as may be agreed to by the Parties) shall be arbitrated in accordance with the Indian Arbitration and Conciliation Act, 1996 or any statutory enactment or re-enactment in force. The seat of the arbitration shall be Chennai, Tamil Nadu, India. A Sole arbitrator appointed by Capshine shall conduct the arbitration proceedings, whose reward shall be final. The language of the arbitration shall be English. Outside India, the Parties agree to go through Alternative Dispute Resolution (ADR) procedures, arbitrated in accordance with the UNCITRAL Arbitration Rules as at present in force.

    Any resulting arbitral decision shall be final and binding on both parties. Judgment upon any arbitration award may be entered in any court having jurisdiction thereof. Such judgment shall be in lieu of any other remedy. Pending final resolution of any claim, dispute or action arising under or related to this agreement, Instructor shall, if requested by Capshine, proceed diligently with the performance of this agreement.

    In case of any dispute, loss, claims or suits between Instructor and user for any transactions emanating out of Capshine platform, both parties agree that Capshine shall not be held liable. The Instructor shall indemnify Capshine and hold Capshine harmless from any/all third party claims arising out of or in relation to the engagement.

    Both parties agree that any /all disputes arising out of this engagement shall fall under exclusive jurisdiction of courts of Chennai and subordinate courts thereto.

  28. Termination for Convenience

    Capshine may terminate the agreement in whole or in part at any time if Capshine determines, in its sole and absolute discretion that a termination is in its best interests. Instructor shall not be allowed, and expressly waives, payment for profit on deliverables which was not performed as of the effective termination date

  29. Termination for default

    If Instructor fails to deliver the services required by this agreement within the time period(s) specified or in the manner required by this agreement, and or if the services do not conform, in all respects, to the requirements of this agreement, or Instructor becomes insolvent or unable to meet its payment obligations when due, or breaches any representations or warranties made under this agreement, Capshine shall have the right, in its sole discretion, to terminate the agreement for default and Capshine shall have the right to do so without giving Instructor an opportunity to cure.

  30. Force Majeure

    The failure of a Party to fulfill any of its obligations hereunder shall not be considered to be a breach of or default under, this agreement insofar as such liability arises from an event of Force Majeure, provided that the Party affected by such an event takes all reasonable precautions, due care and reasonable alternative measures, all with the objective of carrying out the terms and conditions of this agreement. For purposes of this clause, the term “Force Majeure” means an event which is beyond the reasonable control of a Party, and which makes a Party's performance of its obligations hereunder impossible or so impractical as reasonably to be considered impossible in the circumstances, and includes, but is not limited to, war, riots, civil disorder, earthquake, fire, explosion, storm, flood, epidemic/ pandemic or other adverse weather conditions, strikes, lockouts, or other industrial action (except where such strikes, lockouts or other industrial actions are within the power of the Party invoking Force Majeure to prevent), confiscation, lockdown or any other action by government or any other authorities, Telephony lines down, internet blackout or any other external circumstances beyond reasonable control of both parties.

    If Capshine is excused and/ or is unable to perform its obligations due to a Force Majeure Event where a major function of the Capshine platform is non-operational for a continuous period in excess of fifteen (15) days, then Capshine may terminate this Agreement immediately by submitting written notice without penalty or liability. Termination under this Section shall not represent a Breach by either party.

    Force Majeure shall not be deemed to include: (a) any event which is caused by the negligence or intentional action of a Party or such Party's consultants, agents or employees; (b) any event which a diligent Party could reasonably have been expected to both: (i) take into account at the time this agreement was entered into; and (ii) avoid or overcome in the carrying out of its obligations hereunder; or (c) the inability to make any payment required under this agreement.

  31. Flow-down Obligations

    Instructor agrees that the obligations of Instructor under this agreement, as applicable, shall be specifically incorporated into all Subcontracts or agreement by Instructor with any contractor, Instructor, supplier, consultant, or other entity or person to perform the services

  32. Severability

    Any provision of this agreement prohibited by the laws of any jurisdiction shall be, as to such jurisdiction, ineffective to the extent of such prohibition, without invalidating the remaining provisions of this agreement. No waiver or failure to exercise any option, right or privilege under the terms of this Agreement by either of the parties hereto on any occasion or occasions shall be construed to be a waiver of the same on any other occasion or of any other option, right or privilege.

  33. Independent Contractor

    Instructor shall at all times during the term of this Agreement, be acting and performing hereunder as an independent contractor. Instructor shall perform all services required hereunder in good faith and to the best of its abilities, relying on its experience, knowledge, judgment, and techniques. In return for the substantial investment Capshine is making in creating and promoting Instructor profile and courses and in setting up the Instructor to teach through the Capshine platform and receive payments, Instructor agrees to teach exclusively on Capshine for a period of 24 months from the date of registration and undertakes to not provide any tutor/education services through any other competing Capshine platform except with the prior written permission of Capshine.

    Instructor acknowledges that a violation of above clause would cause immediate and irreparable harm to the Company for which money damages would be inadequate. Therefore, the Company will be entitled to injunctive relief for Instructor’s breach of any of its obligations under the above article without proof of actual damages. Such remedy shall not be deemed to be the exclusive remedy for such violation, but shall be in addition to all other remedies available at law or in equity.

  34. Right to Modify

    Capshine reserves the right to issue written changes to this agreement. No modification of this agreement shall be valid unless in writing and signed by an authorized representative of Capshine. Instructor shall not change any aspect of this agreement without Capshine's prior written consent.

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