Qualifi Technologies, Inc., a Delaware corporation, ("Company") is the provider of a software-as-a-service platform and corresponding automated phone interviewing services 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 ("Customer") 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 Customer to access and use the Application Services via Company's website (or such other means as may be made available from time to time).
"Agreement" means these Terms and Conditions, the applicable Business Proposal, and any applicable SOW.
"Application Services" shall mean the software-as-a-service platform and corresponding automated phone interviewing services provided by Company.
"Candidate" shall mean each individual directed by Customer to access the Platform for the benefit of Customer as an applicant or candidate for employment by or through Customer.
"Candidate Data" shall mean all electronic and other data or information submitted by a Candidate to the Application Services.
"Customer Data" shall mean all electronic and other data or information submitted by Customer to the Application Services
"Malicious Code" shall mean viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs.
"Professional Services" shall mean the implementation, integration, consulting and similar services described in an SOW.
"Project Start Date" shall mean some date mutually agreed upon by the parties following execution of a Business Proposal, upon which date Company shall commence provision of Professional Services under an SOW.
"Scope of Professional Work" or "SOW" shall mean the document describing the scope and schedule of Professional Services to be performed by Company for Customer. Each SOW should be attached to a Business Proposal and shall be governed by the terms of this Agreement.
"Services" shall mean the Application Services and Professional Services collectively.
"Start Date" shall mean the date on which Company shall make the Application Services available to Customer as set forth in an applicable Business Proposal.
"Subscription Term" shall mean the subscription period set forth in an applicable Business Proposal.
2. Use of the Application Services
2.1 Grant of Rights . Company hereby grants Customer the limited and non-exclusive right to access and use the Application Services, solely on the terms and conditions provided in, and subject to Customer's continued compliance with, this Agreement. The Application Services are licensed, and not sold.
2.2 Company Responsibilities . Company shall: (a) provide the Application Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (b) perform and complete the Services in full compliance and all applicable municipal, state, and Federal laws, rules, regulations, if applicable; and (c) provide basic support to Customer at no additional charge
2.3 Customer Responsibilities . Customer shall: (a) create an Account, and provide and timely update all requested Customer Data reasonably requested in connection with the same; (b) have sole responsibility of the content delivered by or through the platform to any Candidate on Customer's behalf or at Customer's direction, including all interview questions and content; (c) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (d) 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 (e) comply with all applicable laws and regulations in using the Application Services (including the legality of any Candidate question delivered via the Application Services).
Customer shall upload, provide, or store within the Application Services only such Candidate information which is necessary for Company to perform its duties hereunder (including a Candidate’s phone number, email address, and name), and Customer shall refrain from uploading, providing, or storing any Candidate data or information which is not necessary for these purposes. Customer represents and warrants that it has the right to upload, provide, store, and use such Candidate information and data in connection with the use of the Application Services.
2.4 Use Guidelines.
Customer is solely responsible for ensuring the legality of all interview questions provided by Customer, including compliance with all applicable laws, rules, and regulations (including federal, state, and local); Customer agrees that it will not attempt to obtain information from a Candidate through the Application Services which could constitute a violation of any applicable law.
Customer is solely responsible for any decisions made regarding hiring or not hiring a Candidate. Customer is solely responsible for verifying any information provided by a Candidate that Customer may desire to confirm. Customer acknowledges that Company is not providing hiring or recruiting advice of any kind. Company is not and shall not be construed to be recommending any specific Candidate for a proposed position.
Customer shall use the Application Services solely for its internal business purposes as contemplated by this Agreement 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 except as contemplated by this Agreement; (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.
Customer shall use reasonable efforts to ensure all of its personnel who utilize the Application Services on behalf of Customer are aware of provision herein and shall cause each of the same to comply with such provisions. Customer is responsible for all acts and omissions of any person who gains access to the Application Services through Customer's Account in any manner (whether such access is authorized or unauthorized), and any act or omission by such person which would constitute a breach of this Agreement if taken by Customer directly, will be deemed a breach of this Agreement by Customer.
2.5 Publicity . Company will not issue press releases identifying Customer as a user of Company's services without Customer's prior consent. Either party may include the name and logo of the other party in lists of customers or vendors distributed in non-public manners.
3. Fees & Payment
3.1 Service Fees . Company will invoice Customer for the Application Services only following the Effective Date after the Applications Services have been activated, unless otherwise agreed to in the Business Proposal or SOW. Company will invoice Customer for other Services and work performed as provided in the applicable Business Proposal or SOW. Except as otherwise specified in a Business Proposal, fees are based on the Services purchased and not actual usage; payment obligations are non-cancelable; fees paid are non-refundable (except as explicitly provided herein) and the Services purchased cannot be decreased during the relevant Subscription Term.
3.2 Overdue Payments . Customer's failure to pay undisputed invoices as set forth herein shall constitute a material breach of this Agreement and Company may impose interest at the lesser of 8% or the maximum rate permitted by law, and any late fees as contemplated in the applicable Business Proposal. If Customer's account is 30 days or more overdue, in (except with respect to charges then under reasonable and good faith dispute), Company may, in its sole discretion and in addition to any of its other rights or remedies, suspend Customer's access to the Application Services and/or suspend provision of Professional Services until such amounts are paid in full, or terminate this Agreement and any or all outstanding Business Proposals by delivery of written notice of the same.
4. Intellectual Property Rights
4.1 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. As between Company and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data other than as expressly set forth herein. Company shall not access Customer Data, except to respond to support requests or technical problems or at Customer's request. Company may use the trademarks and trade names of Customer solely in connection with its authorized provision of the Application Services. Customer shall not (a) modify, copy or create derivative works based on the Application Services; or (b) reverse engineer the Application Services.
4.2 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 to Customer, even when refinements and improvements result from Customer's request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Company by virtue of this Agreement or otherwise, Customer hereby transfers to Company all rights, title, and interest which Customer may have, and such transfer is irrevocable, irreversible and binding on Customer's successors. Company hereby grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes anything developed by Company for Customer under a Scope of Professional Work ("Deliverables"). Company shall retain all ownership rights to the Deliverables.
5.1 Definition of Confidential Information . As used herein, " Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party") that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as "Confidential" and/or "Proprietary", or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement, any Business Proposal, the Customer Data, Candidate Data, provision of the Services, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential investor in or purchaser of or successor to any portion of such party's business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for personally identifiable Customer Data) shall not include any information that: (i) with respect to Customer Data or Candidate Data, information which has been aggregated or otherwise anonymized, (ii) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (iii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iv) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (v) is received from a third party without breach of any obligation owed to the Disclosing Party.
5.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees who need to know such information for purposes of performing the Services. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.
5.3 Compelled Disclosure; Remedies . If the Receiving Party is compelled by law, an order issued by a judge or public competent authority to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek to file a lawsuit to enjoin such acts.
6. Representations & Disclaimers
6.1 Customer represents and warrants that: (a) the Customer Data shall not infringe on any copyright, patent, trademark, publicity right, trade secret or other proprietary right held by any third party; and (b) Customer shall not use the Services in a manner that violates any applicable law.
6.2 Company represents and warrants that the functionality of the Application Services will not be materially decreased during a Subscription Term. Company will make reasonable efforts to prevent the Application Services from containing or transmitting Malicious Code. Company will take industry standard measures to maintain the security and integrity of Customer Data and Candidate Data, including maintaining access controls, firewalls, wireless and mobile device and storage security, virus scanning/protection software, encryption of data in transport and storage (including backup data), and network security intrusion protection systems, provided that Customer acknowledges we cannot guarantee that 100% of the data transmissions are secure.
6.3. Company represents and warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. Customer must report any deficiencies in the Professional Services to Company in writing within 90 days of performance of such Professional Services in order to receive warranty remedies. For any breach of the warranty in this Section 6.3, Customer's exclusive remedy, and Company's entire liability, shall be the re-performance of the Professional Services. If Company is unable to re-perform the Professional Services as warranted within 30 days of receipt of notice of breach, Customer's sole remedy shall be to recover the fees paid to Company for the deficient Professional Services.
EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE APPLICATION SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE APPLICATION SERVICES OR PROFESSIONAL SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE APPLICATION SERVICES OR RESULTS OF THE USE THEREOF, WILL: MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; 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.
7.1 Each party (the "Identifying Party") shall defend, indemnify, and hold the other party, its Affiliates, and their respective officers, directors, and employees (collectively, the "Indemnified Party"), harmless against any loss, damage, or costs (including reasonable attorneys' fees) incurred in connection with a claim that arises due to the Indemnifying Party's breach of this Agreement.
7.2 Procedure. As an express condition to an Indemnifying Party's indemnification obligation under this Section 7, the Indemnified Party shall: (a) promptly notify the Indemnifying Party in writing of the applicable claim, suit, or demand for which indemnification is sought; and (b) timely provide the Indemnifying Party with all reasonable non-monetary assistance, information and authority reasonably required for the defense and settlement of such claim.
8.1 Limitation of Liability . EXCEPT AS PROVIDED BELOW IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER PURSUANT TO THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY, OR, IF LESS THAN 12 MONTHS HAVE ELAPSED AT THE TIME THE CLAIM AROSE, THEN THE MAXIMUM LIABILITY IS THE TOTAL ANNUALIZED AMOUNT BASED ON THE AMOUNTS PAID OR PAYABLE BY CUSTOMER FROM THE BEGINNING OF THE AGREEMENT TO THE TIME OF THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION ON LIABILITY SHALL NOT (i) FEES DUE AND PAYABLE HEREUNDER, (i) BREACH OF SECTION 5, OR (iii) ANY INDEMNIFYING PARTY'S OBLIGATION PURSUANT TO SECTION 7.
8.2 Exclusion of Consequential and Related Damages . IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY 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 THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Term & Termination
9.1 Term. This Agreement commences on the Effective Date and continues until terminated as set forth in this Section 9 (the "Term"). Subscriptions to the Application Services commence on the Start Date and continue for the Subscription Term specified in the applicable Business Proposal. Thereafter, this Agreement shall automatically renew and continue for additional consecutive periods of time equal to the initial Subscription Term (each a "Renewal Term") unless and until either party gives the other notice of non-renewal at least 30 days before the end of the then-current Subscription Term or Renewal Term (as applicable) .
The per-unit pricing and fees during any Renewal Term may increase by up to 7% above the applicable pricing in the prior Subscription Term or Renewal Term, as applicable, with not less than 60-days' prior written notice of such increase from Company to Customer. Except as expressly provided in the applicable Business Proposal, renewal of promotional or one-time priced subscriptions fees will be at Company's applicable list price in effect at the time of the applicable Renewal Term. Notwithstanding anything to the contrary, any Renewal Term for which subscription volume for any Services has decreased from the prior Subscription Term or Renewal Term, as applicable, will result in re-pricing of all fees as of the commencement of the Renewal Term without regard to the prior term's per-unit pricing or fees. Professional Services shall commence on the Project Start Date and shall continue until such Professional Services are completed.
9.2 Termination for Cause . Customer may terminate this Agreement for cause upon 30 days written notice of a material breach to Company if such breach remains uncured at the expiration of such 30-day period. Upon any termination for cause by Customer, Company shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination.
In addition to other termination rights provided in this Agreement, Company may immediately terminate this Agreement if Customer breaches any term or condition set forth in this Agreement. Upon any termination for cause by Company, Customer shall remain obligated to pay all fees owed for the remainder of the then current Subscription Term or Renewal Term, as applicable, all of which fees shall become immediately due and payable in full.
9.3 Termination for Convenience . Within 30 days of the Start Date of the first Business Proposal, either party may terminate the remainder of this Agreement for any reason or no reason upon written notice to the other party. Upon any such termination Company shall refund Customer all paid Subscription or Service fees.
10. General Provisions
10.1 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.
10.2 Responsibility for Content. Company may make templates or example questions for Candidates available for use in connection with the Application Services from time to time. All such content is provided "as-is" without any warranty of any kind, and Customer is solely responsible for confirming any Candidate questions delivered via the Application Services comply with all applicable laws, rules, and regulations, notwithstanding that the content may be Company-provided.
10.3 Assignment. 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, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Business Proposals), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.4. Amendment. This Agreement may be amended by Company from time to time by written notice delivered to Customer no less than 30 days in advance of such change and no such amendment shall take place prior to the next Renewal Term; 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.
10.5 Arbitration and Governing Law.
Customer 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 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. Customer 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 Services.
The parties understand that, absent the provisions of this Section 10.5, 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.
10.6 Miscellaneous. This Agreement, including all Exhibits, Business Proposals and Scopes of Professional Work, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Exhibit, Business Proposal, or Scope of Professional Work, the terms of this Agreement shall prevail unless expressly stated otherwise in such Exhibit, Business Proposal, or Scope of Professional Work. 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.