ESSCI Job Portal (ESSCI.ESSCI Job Portal.in) is a digital platform offered by Electronics Sector Skills Council of India (hereinafter referred to as ESSCI ), a not-for-profit organization incorporated under the Societies Registration Act, 1860.
ESSCI Job Portal offers a digital platform to connect Industry (also referred to as Industry Partners or IP's), Skills Ecosystem (also referred to as Training Partners or TP's), with a prime objective to enablement employment for skilled candidates
Users and users organizations of ESSCI Job Portal, including but not limited to IP's and TP's are referred jointly as "User" and "User Agency".
User or User Agency is desirous of using the services offered via ESSCI Job Portal.
ESSCI, along with User or User Agency is jointly referred to as Parties, and individually referred to as Party.
1. DEFINITIONS
"Agreement" shall mean this agreement executed between the Parties, along with its schedules, annexures, exhibits, if any, and all the instruments supplemental to or amending, modifying, or confirming this agreement in accordance with the provisions of this agreement, if any, in each case as they may be supplemented or amended from time to time.
"Effective Date" shall mean the date on which both Parties execute this Agreement, on paper or digitally, by registering on ESSCI Job Portal. For avoidance of doubt, if this Agreement is executed in counterparts or on different dates, then Effective Date shall mean the date on which the Last Party execute this Agreement
"User Agency" shall mean an entity appointed by ESSCI under an agreement to access services through ESSCI Job Portal. "User" shall mean an individual appointed by Parties to access services through ESSCI Job Portal.
2. APPOINTMENT OF USER OR USER AGENCY
The User or User Agency hereby unequivocally accepts its appointment as User or User Agency, for providing and accessing services via ESSCI Job Portal.
3. TERMS AND CONDITIONS
3.1. User or User Agency shall take due care to provide only complete and compliant information while using ESSCI Job Portal.
3.2. User or User Agency shall ensure that all relevant laws and regulations are adhered to in relation to data storage and data protection in their systems and on ESSCI Job Portal.
3.3. The User or User Agency who is seeking to use ESSCI Job Portal to enable a specific service/business function is solely responsible for the choice of feature of ESSCI Job Portal. The choice of the function or feature shall be the sole decision of the User or User Agency, and no other entity shall have any role in this decision of User or User Agency.
3.4. The User or User Agency assumes complete responsibility with regard to its network connectivity with ESSCI Job Portal.
3.5. The User or User Agency shall establish and maintain necessary systems, processes, infrastructure, technology, security, etc., which may be necessary for using ESSCI Job Portal.
3.6. The User or User Agency shall, at all times, comply with the provisions contained in the Information Technology Act, 2000 and the statutory rules framed there under, from time to time, in so far as the same has application to its operations in accordance with this Agreement, and also with all other Laws, rules and regulations, whether already in force or which may be enacted anytime in the future, pertaining to data security and management, data storage, sharing and data protection, as also with the Aadhaar Act 2016.
3.7. In case of any investigations around fraud(s) or dispute (s), the User or User Agency shall extend full cooperation to ESSCI, and/or any agency appointed/authorized by it and/or any other authorized investigation agency, by providing access to their premises, records, personnel and any other relevant resource / information, etc.
3.8. The User or User Agency shall take responsibility for the standards to be maintained regarding security, infrastructure, processes, devices and other aspects.
4. CHARGES
As consideration for its appointment under this Agreement, the charges will be leviable as specified by ESSCI or its partners/affiliates/contractors and will be intimated in writing to the User or User Agency. ESSCI will have sole discretion on the charges, and any changes that may be made to them from time to time.
5. OBLIGATIONS OF USER OR USER AGENCY
5.1. The User or User Agency shall ensure that the persons employed by it for using ESSCI Job Portal possess requisite qualifications for undertaking such works. The User or User Agency shall be responsible for ensuring that such personnel are suitably and adequately trained to use ESSCI Job Portal , in compliance with specifications and standards prescribed by ESSCI from time to time.
5.2. The User or User Agency agrees to comply with the various directives and guidelines issued by ESSCI and or its technology partner from time to time with regard to operations on ESSCI Job Portal .
5.3. The User or User Agency agrees not to assign its functions of User or User Agency to any person or entity.
5.4. The User or User Agency shall be responsible for obtaining the explicit consent of the individual for collection and/or storage of his/her data, including personal data, on ESSCI Job Portal , and for educating and making the individual aware about the purpose of using his/her data on ESSCI Job Portal , and the access of that data to other Users or User Agencies, ESSCI and its partners/affiliates/contractors, The ESSCI may use the logo of user or user agency as partner.
5.5. The User or User Agency shall not share the data of the individual with any other individual or entity except for completing the transaction for which the individual has specifically consented to such sharing. If User or User Agency chooses to store the individual's data and documents on their own systems, it should take the consent of the individual for the same.
5.6. The User or User Agency shall not use any individual's data available on ESSCI Job Portal for any commercial purpose, including but not limited to, selling the data to marketing agencies or staffing/recruitment facilitation companies. The data for an individual available on ESSCI Job Portal should only be used by User or User Agency for facilitation of functions available on ESSCI Job Portal , such as hiring of skilled individual.
6. REPRESENTATIONS & WARRANTIES
6.1. The User Agency represents and warrants to ESSCI that:
- it is an entity legally constituted and validly existing under the laws of India;
- it has all the requisite powers and authority and has taken all the actions necessary to execute, deliver and perform its obligations under this Agreement.
- this Agreement has been validly executed by the User or User Agency and constitutes a valid agreement binding on the User or User Agency and enforceable in accordance with the laws of India.
7. CONFIDENTIALITY AND USE OF INFORMATION
7.1. User or User Agency shall ensure that all relevant laws and regulations are adhered to in relation to data storage and data protection.
7.2. The User or User Agency shall treat all information, which is disclosed to it as a result of the operation of this Agreement, as Confidential Information, and shall keep the same confidential, maintain secrecy of all such information of confidential nature and shall not, at any time, divulge such or any part thereof to any third party except as may be compelled by any court or agency of competent jurisdiction, or as otherwise required by law, and shall also ensure that same is not disclosed to any person voluntarily, accidentally or by mistake.
7.3. The User or User Agency shall ensure compliance with all applicable laws and regulations including but not limited to regulations on data protection under the Information Technology Act, 2000 (as amended) when collecting information from individuals, and using the same for operations related to ESSCI Job Portal .
7.4. It is hereby mutually agreed between the parties that ESSCI and/or its technology partners / affiliates / contractors assume no responsibility or liability for any action or inaction, use or misuse of the Confidential Information and other data in the control of the User or User Agency. The User or User Agency agrees and acknowledges that any loss, damage, liability caused or suffered by ESSCI and/or its technology partners / affiliates / contractors due to disclosure of information of confidential nature shall be borne by User or User Agency without transferring any liability or responsibility towards ESSCI and/or its technology partners / affiliates / contractors.
7.5. It is hereby mutually agreed that this Clause 7 shall survive the termination of this Agreement.
8. INDEMNITY AND LIMITATION OF LIABILITY
8.1. The User or User Agency understands that the use of ESSCI Job Portal does not result in incurring of any liability by ESSCI and/or its technology partners / affiliates / contractors whatsoever. The User or User Agency alone is responsible for the proper and judicious use of ESSCI Job Portal .
8.2. Without prejudice to generality of the above, the User or User Agency shall indemnify and keep ESSCI and/or its technology partners / affiliates / contractors harmless and indemnified from and against all claims, liabilities, losses and incurred costs, fines, penalties, expenses, taxes, assessment, punitive damages, fees (including advocate’s/ attorney’s fee), liabilities (including any investigative, legal and other expenses incurred in connection with, and any amounts paid in settlement of, any pending or threatened legal action or proceeding), judgments, awards, assessments, obligations, damages, etc., which ESSCI and/or its technology partners / affiliates / contractors may suffer or incur arising out of, or in connection with:
- any act, neglect, default or omission on the part of the User or User Agency, its subsidiaries or any person associated with the User or User Agency, including but not limited to liabilities arising from non-compliance of Standards and Regulations prescribed by institutions of Government of India, from time to time, unauthorized use or disclosure of Confidential Information and failure to comply with data protection and storage requirements;
- any breach by the User or User Agency of the terms and conditions or its appointment or its obligations under this Agreement;
- any breach by the User or User Agency of its obligations under any Law(s) or contract, etc;
- default or omission on the part of the User or User Agency to follow statutory instructions and guidelines issued by the institutions of Government of India.
- defend and / or to assist ESSCI and/or its technology partners / affiliates / contractors, in defending, at the User or User Agency’s cost, such claims or actions, either in a legal proceeding or otherwise;
- indemnify ESSCI and/or its technology partners / affiliates / contractors, and keep ESSCI and/or its technology partners / affiliates / contractors indemnified and harmless, at all times, against all actions, claims, demands, costs, charges and expenses arising out of or incurred by reason of any infringement of intellectual property rights of any Third Party in connection with the use of ESSCI Job Portal , irrespective of whether or not ESSCI and/or its technology partners / affiliates / contractors incurs any liability in this regard by virtue of any judgment of a court of competent jurisdiction.
- If the User or User Agency fails to comply with the Standards and directions issued by ESSCI , from time to time, with regard to the interpretation and enforcement of the Standards.
- If the other party is in breach of its obligations under this Agreement.
- If User or User Agency is in liquidation, or if a receiver has been appointed in respect of the User or User Agency or the User or User Agency becomes subject to any form of insolvency administration or files for voluntary liquidation.
8.3. In the event of a Third Party bringing a claim or action against ESSCI and/or its technology partners / affiliates / contractors, as a consequence of the use of ESSCI Job Portal by the User or User Agency, the User or User Agency shall:
8.4. The User or User Agency is aware of, and understands, the fact that operation of ESSCI Job Portal does not represent and warrant the same to be defect free. Unless otherwise expressly specified in writing, the ESSCI Job Portal platform and Services are provided on an ‘as is’ basis, without any express or implied warranties in respect thereof. It is hereby mutually agreed between the Parties that under no circumstances shall ESSCI and/or its technology partners / affiliates / contractors be liable for any damages whatsoever, whether such damages are direct, indirect, incidental consequential and irrespective of whether any claim is based on loss of revenue, interruption of business or any loss of any character or nature whatsoever and whether sustained by the User or User Agency or by any other person, as a result of the operation of this Agreement or otherwise.
8.5 It is hereby mutually agreed that this Clause 8 shall survive the termination of this Agreement.
9. TERM, TERMINATION AND CONSEQUENCES
9.1. This Agreement shall be valid from the date of User or User Agency agreeing to the same electronically to the date when the User or User Agency informs ESSCI in writing and the same is agreed upon by ESSCI.
9.2. Either of the parties have the right to terminate this Agreement by giving thirty (30) days notice, in writing prior to expiry of the Term, without any protest or demur from the other party on the occurrence any of the following events-
9.3. Notwithstanding anything contained in clause 9.2 above, either party without assigning any reasons can terminate this agreement by giving 3 months’ notice in writing to the other party
9.4. The User or User Agency shall have no right to compensation for termination of this agreement by ESSCI , in pursuance of clauses of 9.2 & 9.3 above.
10. FORCE MAJEURE
10.1. The Parties agree that neither of them shall be liable to the other for any loss, delay, damage or other casualty suffered or incurred by the other owing to earthquakes, floods, fires, explosions, acts of God, acts of State, war, terrorism, action of any governmental authority or any other cause, which is beyond the reasonable control of the Party and any failure or delay by any other Party in the Performance of any of its obligations under this Agreement owing to one or more of the foregoing causes shall not be considered as a breach of any of its obligations under this Agreement. The Parties however agree that any financial failure or non-performance of any financial obligations or covenants of the Parties shall not constitute Force Majeure.
10.2. The Party claiming benefit of Force Majeure shall however not be entitled to the same unless it has intimated the other Party of the occurrence of such an event within a period of seventy hours from the occurrence of such Force Majeure event indicating therein the steps that it is taking or intending to take to mitigate the effect of such Force Majeure on the performance of his obligations under this Agreement.
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1. This Agreement shall, in all respects, be governed by, and construed in accordance with the laws of India.
11.2 Any dispute of whatever nature, which arises out of, in relation to, or otherwise connected with:
11.2.1. The interpretation or effect of;
11.2.2. The validity, enforceability, or rectification of;
11.2.3. The respective rights or obligations of the Parties; and/or shall be dealt in accordance with succeeding provisions of this Clause.
11.2.4. A breach or the termination or cancellation of this agreement; shall be dealt in accordance with succeeding provisions of this Clause.
11.3. All disputes shall at first instance be resolved through good faith negotiations, which negotiations shall begin promptly after a party has delivered to the other Party a request for such consultation.
11.4. If the Parties are unable to resolve the Dispute in question within thirty days of the commencement of negotiations, then the Dispute shall, unless the Parties otherwise agree in writing, be referred to arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996.
11.5. The venue for arbitration shall be Gurgaon, India and the language used in the arbitral proceedings shall be English.
11.6. The reference shall be made to the sole arbitrator, appointed by ESSCI, acting as an appointing authority, whose decision shall be final and binding on the Parties.
11.7. The decision of the Arbitrator appointed to deal with such matters shall be accepted by the Parties as final and binding on the Parties.
11.8. The Parties shall continue to be performing their respective obligations under this Agreement, despite the continuance of the arbitration proceedings, except for the disputed part under arbitration.
11.9. All fees and costs pertaining to arbitration proceedings shall be borne equally by the Parties.
11.10. All other fees and costs incurred by the Parties shall be borne by the respective Parties.
12. GENERAL
12.1. Notices
Any notice, direction or other documentation required or remitted to be given hereunder shall be in writing and may only be given by personal delivery, international courier, electronic mail or facsimile (with confirmation received) at respective business addresses.
12.2. No Waiver
No failure by a Party to take any action with respect to a breach of this Agreement or a default by any other Party shall constitute a waiver of the former Party’s right to enforce any provision of this Agreement or to take action with respect to such breach or default or any subsequent breach or default. Waiver by any Party of any breach or failure to comply with any provision of this Agreement by a Party shall not be construed as, or constitute, a continuing waiver of such provision, or a waiver of any other breach of or failure to comply with any other provision of this Agreement, unless any such waiver has been consented to by the other Party in writing.
12.3. Severability
If any Clause or part thereof, of this Agreement or any agreement or document appended hereto or made a part hereof is rendered invalid, ruled illegal by any court of competent jurisdiction, or unenforceable under present or future Laws effective during the term of this Agreement, then it is the intention of the Parties that the remainder of the Agreement, or any agreement or document appended hereto or made a part hereof, shall not be affected thereby unless the deletion of such provision shall cause this Agreement to become materially adverse to any Party in which case the Parties shall negotiate in good faith such changes to the Agreement, or enter into suitable amendatory or supplementary agreements, as will best preserve for the Parties the benefits and obligations under such provision
12.4. Counterparts
This Agreement may be executed in one or more counterparts, all of which shall be read and construed as one document.
12.5. Entire Agreement
This Agreement constitutes the entire agreement between the Parties. There are not and will not be any verbal statements, agreements, assurances, representations and warranties or undertakings among the Parties and this Agreement may not be amended or modified in any respect except by written instrument signed by the Parties.
12.6. Independence of the Parties with respect of each other
Each of the Parties is and shall remain independent parties. Neither Party nor any of their respective affiliates shall have the authority to enter into any contract or any obligation for, or make any warranty or representation on behalf of the other.
12.7. Surviving Provisions
12.7.1. The provisions of this Agreement, which are intended to survive the term of this Agreement by their very nature shall survive the termination of this Agreement.
12.7.2. Notwithstanding the generality of the above, Clauses 6, 7 and 8 shall survive the termination/expiration of this Agreement.
12.8. Assignment
This Agreement shall not be assigned by either Party without obtaining a prior written consent from the other.
