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Bug me about this later, let me live dangerously

QWALIFY INC.
TERMS OF SERVICE

Last Update: August 3, 2018.

By signing up for the Qwalify services or any of the services of Qwalify Inc. or its affiliates ("Qwalify") you are agreeing to be bound by the following terms and conditions (the "Terms of Service").

The services offered by Qwalify under the Terms of Service include various products and services to help you administer and manage an engaged community of talent prospects (the "Services"). Qwalify may make changes to the Services from time to time by adding and/or removing features, products, services or tools, and all of such changes will be subject to the Terms of Services and included as the "Services".

Qwalify reserves the right to update and change the Terms of Service from time to time by posting updates and changes to the Qwalify website. You can review the current version of the Terms of Service at any time at https://app.qwalify.com/terms.

You must read, agree and accept all of the terms and conditions contained in this Terms of Service agreement, including Qwalify's Privacy Policy (the "Privacy Policy"), and, if applicable, Data Processing Addendum ("DPA"), before you become a Qwalify user. If you specify your organization when creating an account for the Services, you are entering into the Terms of Service on behalf of such organization. Please ensure that you have the necessary authority to do so prior to accepting this Terms of Service Agreement.

This Terms of Service agreement may be entered into in connection with a master service agreement and order form entered into between Qwalify and your organization (an "MSA"). In such case, this Terms of Service agreement is subject to the terms and conditions of the MSA.

Captions are provided throughout the Terms of Service in everyday language for convenience only and are not legally binding.

  1. SERVICES & ACCOUNT MANAGEMENT
    1. Age. You must be eighteen (18) years or older and at least the age of majority in the jurisdiction where you reside or from which you use the Services.
    2. Account. To access and use the Services, you must register for a Qwalify account (an "Account") by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required. Qwalify may refuse or reject your application for an Account, or cancel an existing Account at any time, for any reason, in its sole discretion.
    3. Account Owner. Unless you are registering an Account on behalf of an organization, you will be the contracting party (the "Account Owner") for the purposes of this Terms of Service and will be the person who is authorized to use any corresponding account Qwalify may provide in connection with the Services. If you are registering an Account behalf of an organization, such organization will be the Account Owner and you represent and warrant that you have the authority to bind such organization to this Terms of Service. Qwalify reserves the right to request documentation at any time and from time to time to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license or government issued photo ID. Qwalify retains the right to determine, in its sole judgment, rightful Account ownership and any transfer of an Account to the rightful owner. If Qwalify is unable to determine the rightful Account owner, to its sole satisfaction, Qwalify reserves the right to temporarily disable an Account until resolution has been determined.
    4. Password Security. You are responsible for keeping your password secure. Qwalify cannot be and will not be responsible or liable for any loss or damage from your failure to maintain the security of your Account and password.
    5. Account Activity & Materials. You are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account (the "Materials"). Qwalify may review Materials for compliance purposes, but Qwalify has no obligation to do so. Qwalify is not responsible for the Materials, nor is it responsible for the conduct of its users. Qwalify may remove or refuse any Materials from the Services in its sole discretion and without notice from time to time.
    6. Service Changes. Qwalify reserves the right to modify or terminate the Services for any reason, without notice, at any time. Qwalify, and their officers, directors, employees, and contractors (collectively, the "Qwalify Group") will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
  2. Payment obligations
    1. Service Fees. The Services are subscription-based with monthly or annual fees that must be paid in advance. Payment obligations are non-cancelable and are non-refundable. If Qwalify otherwise agrees to invoice you, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, "Taxes"). You will be responsible for paying all Taxes associated with your purchases, except for those taxes based on Qwalify's net income. All amounts are in U.S. Dollars. Fees for using the Services are subject to change upon thirty (30) days' notice from Qwalify, which notice may be satisfied by posting the changes to the administrative page of your Account. The Qwalify Group will not be liable to you or to any third party for any such price change.
    2. Auto-Renewal. All subscriptions automatically renew for additional periods equal to one (1) year or the preceding term, whichever is shorter, without any change to the fee schedule during the immediately prior term. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the subscription from automatically renewing.
  3. Acceptable use
    1. Prohibited Activities. The following activities are prohibited:
      1. Child Exploitation: You will not post or upload Materials that exploit or abuse children.
      2. Harassment, Bullying, Defamation & Threats: You will not post or upload Materials that harass, bully, defame or threaten a specific individual or group of individuals. You will not abuse (verbal or otherwise) any customers of Qwalify or any member of the Qwalify Group in any way whatsoever.
      3. Hateful Content: You will not post or upload Materials that condone or promote violence against people, including where based on race, ethnicity, colour, national origin, religion, age, gender, sexual orientation, disability, medical condition or veteran status.
      4. Illegal Activities: You will not post or upload Materials that contravene or that facilitate or promote activities that contravene, the laws of the jurisdictions in which you operate or do business. You will not use the Services for any illegal or unauthorized purpose, nor may you, in the use of the Services, violate any laws in your jurisdiction, the laws applicable to your engaged talent's jurisdiction, or the laws of Canada and the Province of Ontario.
      5. Intellectual Property: You will not post or upload Materials that infringe on the copyright, trademarks or intellectual property rights of others.
      6. Fair Use: You will not reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services without the express written permission of Qwalify.
      7. Malicious and Deceptive Practices: You will not use the Services to transmit malware or host phishing pages. You will not perform activities or upload or distribute Materials that harm or disrupt the operation of the Services or other infrastructure of Qwalify or others, including Qwalify's third party providers. You will not use the Services for deceptive commercial practices or any other illegal or deceptive activities.
      8. Personal and Confidential Information: You will not post or upload any Materials that contain personally identifiable information, sensitive personal information, or confidential information, such as credit card numbers, confidential national ID numbers, or account passwords unless you have consent from the person to whom the information belongs or who is otherwise authorized to provide such consent.
      9. Spam: You will not use the Services to transmit unsolicited commercial electronic messages.
      10. Terrorist Organizations: You will not offer goods or services, or post or upload Materials, that imply or promote support or funding of, or membership in, a terrorist organization.
      11. Keywords: You will not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use Qwalify or Qwalify trademarks and/or variations or misspellings thereof.
    2. Monitoring for Compliance. Qwalify has the right, but not the obligation, to monitor or investigate any Materials and your use of the Services at any time for compliance with the Terms of Service, including without limitation Section 3.1 above. Our determination of whether a violation has occurred will be final and binding, and any enforcement action taken, including taking no action at all, will be at Qwalify's sole discretion.
    3. Violations of Acceptable Use. Qwalify may, at any time and without notice, remove any Materials, and suspend or terminate your Account or your access to the Services if you engage in activities that violate the letter or spirit of Section 3.1 above, including activities outside of your use of the Services.
  4. INTELLECTUAL PROPERTY OWNERSHIP
    1. Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, you own all intellectual property rights in the content (including the Materials) and data you submit to the Services (collectively, the "Customer Data"), and the Qwalify Group owns all intellectual property rights in the Services and all related components and information therein.
    2. License to Customer Data. You grant the Qwalify Group a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display the Customer Data only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by you. You represent and warrant that you exclusively own, or have otherwise secured all rights as may be necessary in and to, the Customer Data to grant this license.
    3. Publicity. You grant Qwalify the right to use your organization's name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to your standard trademark usage guidelines as provided to Qwalify from time-to-time. If you do not wish to be listed, send Qwalify an email to service@qwalify.com and Qwalify will not use your organization's name or logo for such purposes.
  5. PRIVACY & DATA PROTECTION
    1. Privacy Policy. Qwalify is firmly committed to protecting the privacy of your personal information. By using the Services, you acknowledge and agree that Qwalify's collection, usage and disclosure of this personal information is governed by our Privacy Policy.
    2. Data Processing Addendum. If: (a) you are established in the European Economic Area (EEA); (b) you engage other users in the EEA; or (c) you are otherwise subject to the requirements of the EU General Data Protection Regulation; Qwalify's collection and use of personal information of any European residents will also subject to our Data Processing Addendum.
  6. TERM & TERMINATION
    1. You may cancel your Account at any time by emailing service@qwalify.com and following the specific instructions indicated in Qwalify's response.
    2. Qwalify reserves the right to modify or terminate the Services or your Account for any reason, without notice, at any time. Without limiting any other remedies Qwalify may suspend or terminate your Account if Qwalify suspects that you have engaged in fraudulent activity or have otherwise committed a breach or violation of any term in the Terms of Service, as determined in Qwalify's sole discretion.
    3. Upon termination of the Services by either party for any reason: (a) Qwalify will cease providing you with the Services and you will no longer be able to access your Account; (b) unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any fees, pro rata or otherwise; and (c) any outstanding balance owed to Qwalify for your use of the Services through the effective date of such termination will immediately become due and payable in full.
  7. THIRD PARTY SERVICES
    1. Qwalify may from time to time recommend, provide you with access to, or enable third party software, applications, products, services or website links (collectively, the "Third Party Services") for your consideration or use. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider (the "Third Party Provider"). Any use by you of Third Party Services offered through the Services or Qwalify's website is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. In some instances, Qwalify may receive a revenue share from Third Party Providers that Qwalify recommends to you.
    2. Qwalify does not provide any warranties with respect to Third Party Services. You acknowledge that Qwalify has no control over Third Party Services and will not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services on Qwalify's websites or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Qwalify. Qwalify does not guarantee the availability of Third Party Services and you acknowledge that Qwalify may disable access to any Third Party Services at any time in its sole discretion and without notice to you. Qwalify is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. Qwalify strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs.
    3. If you install or enable a Third Party Service for use with the Services, you grant Qwalify permission to allow the applicable Third Party Provider to access your data and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. Qwalify is not responsible for any disclosure, modification or deletion of your data or other Materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other Materials.
    4. Under no circumstances will Qwalify be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider. These limitations will apply even if Qwalify has been advised of the possibility of such damages. The foregoing limitations will apply to the fullest extent permitted by applicable law.
    5. You agree to indemnify and hold the Qwalify Group harmless from any claim or demand, including reasonable attorneys' fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.
  8. WARRANTIES AND DISCLAIMERS
    1. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND QWALIFY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT QWALIFY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
  9. LIMITATION OF LIABILITY
    1. IN NO EVENT WILL QWALIFY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS TERMS OF SERVICE AGREEMENT OR YOUR USE OF THE SERVICES (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY.
    2. IN NO EVENT WILL QWALIFY HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
  10. INDEMNITY
    1. You will defend the Qwalify Group from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to your violation of the this Terms of Service agreement (a "Claim Against Qwalify"), and will indemnify the Qwalify Group for all reasonable attorney's fees incurred and damages and other costs finally awarded against a member of the Qwalify Group in connection with or as a result of, and for amounts paid by a member of the Qwalify Group under a settlement you approve of in connection with, a Claim Against Qwalify. Your approval will be deemed if you do not respond to an written approval request within thirty (30) days of such notice. Qwalify must provide you with prompt written notice of any Claim Against Qwalify and allow you the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting your defense and settlement of such matter. This section states your sole liability with respect to, and the Qwalify Group's exclusive remedy against you for, any Claim Against Qwalify.
  11. DMCA TAKEDOWN
    1. Qwalify supports the protection of intellectual property rights and will investigate infringement notifications sent to Qwalify according to the United States Digital Millennium Copyright Act ("DMCA"). You can send DMCA notifications to service@qwalify.com, and include all of the following in writing:
      1. Reasonably sufficient details to enable Qwalify to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example: title, author, any registration or tracking number, URL);
      2. Reasonably sufficient detail to enable Qwalify to identify and locate the material that is claimed to be infringing (for example a link to the page that contains the material);
      3. Your contact information so that Qwalify can contact you (for example, your address, telephone number, email address);
      4. A statement that you have a good faith belief that the use of the material identified is not authorized by the copyright owner, its agent, or the law;
      5. A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed; and
      6. Your physical or electronic signature.
  12. GENERAL
    1. Entire Agreement. The Terms of Service and the documents, agreements and policies it incorporates by reference constitute the entire agreement between you and Qwalify and govern your use of the Services, superseding any prior agreements between you and Qwalify (including, but not limited to, any prior versions of the Terms of Service).
    2. Severability. The Terms of Service will be enforced to the fullest extent permitted under applicable law. If any provision of the Terms of Service is held by a court of competent jurisdiction to be contrary to applicable law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in effect.
    3. Governing Law. The Terms of Service will be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.
    4. Amendments. You acknowledge and agree that Qwalify may amend these Terms of Service at any time by posting the relevant amended and restated Terms of Service on Qwalify's website, available at https://app.qwalify.com/terms and such amendments to the Terms of Service are effective as of the date of posting. Your continued use of the Services after the amended Terms of Service are posted to Qwalify's website constitutes your agreement to, and acceptance of, the amended Terms of Service. If you do not agree to any changes to the Terms of Service, do not continue to use the Service.
    5. Notice. You acknowledge that Qwalify will use the email address you provide as the primary method for communication, and that it is your responsibility to keep such email address up to date. Any legal notice sent by Qwalify to such email address will be deemed received and sufficiently delivered immediately when sent. Any legal notice sent by you to Qwalify under this Terms of Service will be deemed received and sufficiently delivered upon confirmation of delivery, and must be sent as follows: Qwalify Inc., 147 Liberty Street, Toronto, ON, M6K 3C3 With a copy to: legal@qwalify.com. For questions about the Terms of Service, contact: service@qwalify.com.
    6. Waiver. The failure of Qwalify to exercise or enforce any right or provision of the Terms of Service will not constitute a waiver of such right or provision. No waiver under the Terms of Service will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
    7. Independent Parties. The parties are independent contractors. The Terms of Service does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
    8. Assignment. Except among the Qwalify Group, neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Terms of Service in its entirety, without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section is void. Subject to the foregoing, the Terms of Service will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    9. Jury Waiver. You hereby irrevocably and unconditionally agree to waive any right you may have to a trial by jury, or commence or participate in any class action against Qwalify related to the Services and/or the Terms of Service
    10. Language. The Terms of Service may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English Terms of Service and Qwalify's Terms of Service available in another language, the most current English version of the Terms of Service at https://app.qwalify.com/terms will prevail.