Qualifi Technologies, Inc., a Delaware corporation, ("Company") is the provider of a software-as-a-service platform and corresponding automated phone interviewing services used to collect data from individuals through the use of automated phone calls made on behalf of its customers to individual "Candidates".
By creating an account to access and use the Application Services, by or by continuing to access or use the Application Services following notification of an update to these Terms and Conditions, you ("Candidate") agree to be bound by these Terms and Conditions. The Terms and Conditions, together with any mutually executed written agreement, including any statements of work or business proposals agreed upon from time to time, constitutes the entire agreement between Company and the respective Customer.
By entering into this Agreement you are agreeing to the binding arbitration provisions provided herein.
"Account" means a unique password-protected login for Candidate to access and use the Application Services via Company's website (or such other means as may be made available from time to time).
"Application Services" shall mean the software-as-a-service platform and corresponding automated phone interviewing services provided by Company.
"Candidate Data" shall mean all electronic and other data or information submitted by a Candidate to the Application Services.
"Malicious Code" shall mean viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs.
2. Use of the Application Services
2.1 Grant of Rights . Company hereby grants to Candidate the limited and non-exclusive right to access and use the Application Services, solely on the terms and conditions provided in, and subject to Candidate's continued compliance with, this Agreement. The Application Services are licensed, and not sold.
2.2 Candidate Responsibilities . Candidate shall: (a) create an Account, and provide and timely update all requested Candidate Data reasonably requested in connection with the same; (b) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Candidate Data; (c) prevent unauthorized access to, or use of, any Account or the Application Services, and notify Company promptly of any such unauthorized access or use; and (d) comply with all applicable laws and regulations in using the Application Services.
2.3 Use Guidelines.
Candidate shall use the Application Services solely to participate in good faith in the interview process at the request of the interviewing business operation (herein, the "Interviewer") and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Application Services available to any third party; (b) send via or store within the Application Services infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (c) send via the Application Services any unsolicited commercial or non-commercial communication; (d) send via, upload to, or store within the Application Services any Malicious Code; or (e) attempt to gain unauthorized access to the Application Services or its related systems or networks.
3. Intellectual Property Rights
3.1 Reservation of Rights . Subject to the limited rights expressly granted hereunder, Company reserves all rights, title and interest in and to the Application Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
3.2 Improvements; Deliverables . Company shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Application Services or any new programs, upgrades, modifications or enhancements developed by Company in connection with rendering the Application Services.
4. Warranty Disclaimer
COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE APPLICATION SERVICES TO THE CANDIDATE OF ANY KIND. AND THE APPLICATION SERVICES ARE PROVIDED "AS IS". COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE APPLICATION SERVICES WILL: OPERATE WITHOUT INTERRUPTION OR BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, BE SECURE, ACCURATE, RELIABLE, COMPLETE, OR ERROR FREE.
Applicant shall defend, indemnify, and hold Company, including its affiliates, and their respective officers, directors, and employees, harmless against any loss, damage, or costs (including reasonable attorneys' fees) incurred in connection with a claim that arises due to the Candidate's breach of this Agreement.
6. Release and Limitations
Candidate acknowledges and agrees that the scope and content interview questions provided to Candidate in any manner were developed by, provided by, or chosen by the Interviewer, and not by Company. Company is not responsible for, and Candidate shall not hold or attempt to hold Company responsible for, any interview questions which violate applicable law.
Candidate acknowledges that all interview question responses will be provided to the Interviewer. Candidate should not include any information in such responses that it does not wish such Interviewer to know, nor knowingly include any information in such responses which a potential employer is not legally allowed to consider in its hiring process. Candidate’s responses shall be true and accurate in all respects and shall not be misleading to the Interviewer.
Candidate acknowledges that use of the Application Services does not guarantee Candidate any employment, nor constitute an offer of any employment, and that whether or not to hire a certain Candidate is entirely in the decision of, and in the discretion of, the potential employer, and not the Company.
As such, and as material inducement for Company to provide the Application Services to Candidate, Candidate hereby irrevocably releases Company from any and all liabilities or obligations which may arise out of Candidate's use of the Application Services, the related the interview process, and the Interviewer's ultimate hiring decision.
6.2 Limitation of Liability . IN NO EVENT SHALL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED $100.
6.3 Exclusion of Consequential and Related Damages . IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO CANDIDATE FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Term & Termination
7.1 Term. This Agreement commences on the creation of an Account or earlier access to the Application Services by Candidate and continues until terminated as set forth below.
7.2 Termination by Company. Company may terminate or suspend Candidate's Account, in Company's sole discretion (i) immediately and without prior notice in the event of a breach by Candidate of any provision of this Agreement or if the Application Services cease to be provided by Company, or (ii) for any or no reason by delivering to Candidate no less than 30 days' prior written notice of such suspension or termination.
8. General Provisions
8.1 Relationship of the Parties . The relationship between the parties created by this Agreement is one of independent contractors and neither party shall have the power or authority to bind or obligate the other except as expressly set forth in this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
8.2 Assignment. Candidate may not assign all or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Company. Any attempt to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
8.3 Amendment. This Agreement may be amended by Company from time to time by written notice delivered to Candidate no less than 30 days in advance of such amendment; provided, if such amendment is, in Company's reasonable determination, for the purpose of compliance with any applicable law, rule, regulation ,or court order, such amendment shall be effective 30 days following delivery of such notice.
8.4 Arbitration and Governing Law .
Candidate and Company will engage in good faith negotiation to resolve any dispute, claim, or question, and use respective best efforts to settle the same, as a condition precedent to either party initiating any court action, lawsuit, mediation, or arbitration. If no resolution is reached, either party may initiate binding arbitration as the sole means to resolve claims, as provided herein. All claims arising out of or relating to this Agreement, including access to and use of the Application Services, shall be finally settled by binding arbitration administered by JAMS under the applicable commercial arbitration rules, excluding any rules or procedures governing or permitting class actions. The arbitrator shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, non-appealable, and binding on the parties, and may be entered as a judgment in any court of competent jurisdiction.
If for any reason the arbitration provisions contained herein are determined to be invalid or inapplicable, this agreement and all matters concerning its interpretation, performance, or enforcement will be governed in accordance with the laws of the State of Indiana. Any litigation arising out of this Agreement or the relationship of the parties hereto must be brought in a court of competent jurisdiction in Marion County, Indiana. Candidate hereby waives any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to this Agreement or the Application Services.
The parties understand that, absent the provisions of this Section 8.4, they would have the right to sue in court and have a jury trial. The parties further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
8.5 Miscellaneous. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Any provision of this Agreement which is intended by its nature to survive any termination hereof, shall survive. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall be replaced with a valid provision that is closer to the scope and intent of the invalid provision and shall not affect the validity of the remaining provisions hereof.