QWALIFY INC. (INCLUDING DojoTM)
Last updated: November 15, 2014
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU AND QWALIFY INC. (“QWALIFY”, “US”, “OUR” OR “WE”), AND IS DEEMED ACCEPTED BY YOU EACH TIME THAT YOU USE OR ACCESS ANY QWALIFY SITE OR ANY QWALIFY SERVICE PROVIDED OR ACCESSED THEREIN. IF YOU DO NOT ACCEPT THE AGREEMENT STATED HERE, DO NOT USE THE QWALIFY SITES OR OUR SERVICES.
This Agreement may be revised at any time, with updated versions prominently posted to this web page. You should visit this page periodically to review the most current version of this Agreement. If any material changes are made to this Agreement, you will be notified via e-mail. This Agreement and its amendments are binding on You.
- THE QWALIFY SITES. The “Qwalify Sites” are defined as Qwalify.com and TalentDojo.com, and any sites or pages therein.
- THE QWALIFY SERVICES. The “Qwalify Services” are defined as any products or services offered by Qwalify to its users on the Qwalify Sites, and therefore the Qwalify Services are included in any reference to the Qwalify Sites. The Qwalify Services were designed to provide human resource talent engagement and dojoing services and applications, whether web-based, mobile, or otherwise.
- USERS. A “User” is defined as any end-user of the Qwalify Sites or Qwalify Services, whether or not such user holds a registered account with the Qwalify Sites.
YOUR PROFILE CONTENT
- PROFILES. In order to access some of the Qwalify Services, including TalentDojoTM, You will have to create a personal account with Us. For that purpose, the Qwalify Sites allow You to create an individual profile. Your profile may include the following:
- “Basic Profile Information”: which may include Your name, user ID, profile photo, general areas of professional interest and Your results to introductory character questionnaires;
- “Enhanced Profile Information”: which may include Your contact information, resume, portfolio materials (regardless of file format), results from proprietary or third-party advanced, character assessments or questionnaires, or Your results from any other Qwalify Service used; and
- together, the Basic Profile Information and the Enhanced Profile Information comprise the “Profile Content”.
- GRANT OF LICENSE. By creating an account with us, You grant Us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use Your Profile Content for the purposes contemplated in this Agreement.
- ACCURACY OF INFORMATION. To help Us ensure that the Qwalify Services provide the most value to Our Users, You agree to keep Your Profile Content accurate and up-to-date.
- RESPONSIBLE USE. You are responsible for maintaining the confidentiality of Your account, passwords and Profile Content, as applicable. You may not share Your password or other account access information with any third party. You shall be responsible for all uses of Your account credentials and passwords, whether or not authorized by You, except in cases of verifiable third party hacking or other such security breach. You agree to notify Qwalify of any unauthorized use of Your account, passwords or Profile Content immediately upon having knowledge about such unauthorized use.
- DELETING CONTENT. Subject to the license granted under Subsection 2.2, You own all of Your Profile Content. As such, you may at any time edit or delete Your Profile Content in whole or in part. When You delete Profile Content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, You understand that removed content may persist in backup copies for a reasonable period of time, but will not be available to others.
YOUR REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES. You represent and warrant that You:
- are 14 years of age or older, and, if under the age of 18 or the age of majority as that is defined in Your jurisdiction, You are using the Qwalify Sites and Services under the supervision, and with the consent, of a parent, legal guardian, or other responsible adult;
- are using the Qwalify Sites and Services in a jurisdiction where access to, or use of, the Qwalify Sites or Services (or any part thereof) is not prohibited or illegal;
- own, or have proper legal authorization to use, any and all content that You may contribute, upload, manage, or provide to the Qwalify Sites; and
- are fully able and competent to enter into, and abide by, the terms of this Agreement.
- SUBSCRIPTION FEES. Many of the Qwalify Services are subscription-based services that charge on a monthly or annual basis. The subscription fees are subject to change at Qwalify’s sole discretion, and in such an event, You will be notified of the change, and given the choice of whether or not to accept the new fees, prior to completing Your next purchase.
- ADDITIONAL FEES. There may be products and services on the Qwalify Sites that require fees additional to any subscription fee for use. Before You are charged for any such products and services, you will be notified of the additional fees and given the opportunity to decline such products or services.
- FREE TRIALS. If You receive free access to, a trial of, or an evaluation subscription to, the Qwalify Services (the “Trial Subscription”), then You will not be charged a subscription fee during the trial period, which shall be a period of 30 days (the “Trial Period”). During the Trial Period, you may still be subject to additional fees as provided under Subsection 4.2. Immediately following the Trial Period, You authorize Qwalify to automatically charge You the subscription fee that allows you to continue using the Qwalify Services at the same activity levels You used during the Trial Period, unless you specify otherwise. Your use of or access to the Qwalify Sites and the Qwalify Services during a Trial Period is governed by this Agreement, to the extent that the Agreement does not conflict with the terms and conditions provided under this Subsection 4.3.
- RECURING PAYMENTS. When You purchase a subscription on the Qwalify Sites, You acknowledge and agree that this is a recurring payment and that payments shall automatically be made to Qwalify by the method You have chosen at recurring intervals chosen by You, until the subscription is terminated by You or Qwalify.
- TAX. Unless otherwise stated, Our fees do not include any taxes, levies, duties or other governmental assessments of any nature (“Taxes”). You shall pay all Taxes applicable to Your purchases on the Qwalify Sites,
- REFUND POLICY. All fees are non-refundable. No refunds will be given for partial-months or for a downgrade of subscription level.
- CURRENCY. All monetary values provided on the Qwalify Sites are stated in U.S. Dollars, unless expressly stated otherwise.
- QWALIFY CONTENT. The content of the Qwalify Sites and the Qwalify Services, including, without limitation, the designs, software including source code and object code, text, graphics, images, video, audio, logos, trade dress, trade marks, icons and data of any kind, (collectively, the “Qwalify Content”), are owned by Qwalify, or Qwalify’s licensors, and is protected by applicable intellectual property laws, including copyright, trade-mark, patent, confidential information and trade secret.
- GRANT OF LICENSE. We hereby grant You a limited, non-exclusive, revocable, non-sublicensable license to use the Qwalify Services, including those products and services provided on the Demo Sites and the Beta Sites (as are defined in Section 9 of this Agreement), for the purposes with which they are provided via the Qwalify Sites, subject to the terms and conditions of these Agreement.
- RESTRICTION ON USE. Nothing contained in the Qwalify Content should be construed as a grant, by implication, estoppel, or otherwise, of any license or right to use the Qwalify Sites or the Qwalify Content in any way except: (a) as expressly permitted by this Agreement; or (b) with Our prior written permission.
- ENFORCEMENT. As it relates to the license granted in this Section 5, We reserve the right to take such steps as We deem necessary to restrain any unauthorized activity, including, without limitation, account suspension, account termination, and legal action.
In using the Qwalify Sites, You shall not to do any of the following:
- send unsolicited mail or email, make unsolicited phone calls or send unsolicited faxes promoting or advertising products or services to any other User of the Qwalify Sites, or contact any Users that have specifically requested not to be contacted by You;
- do anything unlawful, misleading, malicious, or discriminatory;
- post content that infringes on a third party’s rights, such as intellectual property rights;
- post content that: is hate speech, threatening, or pornographic; incites violence; or, contains nudity or graphic or gratuitous violence;
- bully, intimidate, or harass;
- solicit login information or access an account belonging to someone else;
- impersonate another person;
- misrepresent yourself, or your authority within an organization, to other Users
- create an account, without written permission or authorization, for anyone other than Yourself;
- knowingly provide any false information;
- attempt to interfere with service to any User, host, or network, including for example the submission of a virus, overloading, “flooding”, “spamming”, “mailbombing” or “crashing” the Qwalify Sites, or any part therein;
- cover or obscure any Qwalify webpages using HTML/CSS, scripting, or any other means;
- attempt to reverse engineer or jeopardize the correct functioning of the Qwalify Sites, or otherwise attempt to derive the source code of the Qwalify Sites (including the tools, methods, processes, and infrastructure) that enables or underlies the Qwalify Sites;
- use any data mining, robots or similar data gathering or extraction methods;
- violate or attempt to violate the security of any Qwalify Sites including attempting to probe, scan or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization; or
- facilitate or encourage any violations of this Agreement.
- LINKS TO THE SITES. While We encourage links to the Qwalify Sites, We reserve the right to prohibit or refuse to accept any link to the Qwalify Sites at any time. You agree to remove any link You may have to the Qwalify Sites upon Our request.
SPECIAL PROVISIONS APPLICABLE TO TALENTDOJOTM ENGAGEMENT
- ENGAGEMENT DOJOS. TalentDojoTM is one of the Qwalify Services that provides talent engagement and dojoing services to Users seeking to obtain employment or other professional engagement opportunities (“Talent Prospects”) and Users seeking to source Talent Prospects (“Talent Sourcers”). In order to provide these services, TalentDojoTM uses User-created virtual communities and groups (“Engagement Dojos”) where Talent Sourcers and Talent Prospects can proactively engage with, each other. Engagement Dojos, by definition, include any sub-Engagement Dojos that may exist within that Engagement Dojo at any given time.
- MODERATION. Qwalify may not monitor or moderate any of the Engagement Dojos for Engagement Content or activity that violates this Agreement. As such, Qwalify makes no representations, warranties, guarantees, or endorsements as to the Engagement Content. Each Engagement Dojo is monitored and moderated by the Administrators of such Engagement Dojo (as they are defined in Section 8 below).
SPECIAL PROVISONS APPLICABLE TO TALENTDOJOTM SOURCERS
- ADMINISTRATORS AND DELEGATES. Each Engagement Dojo has an administrator that is responsible for the management, moderation and monitoring of the Engagement Dojo and its Engagement Content and activity (the “Administrator”). If You create an Engagement Dojo, You are assigned the role of Administrator by default. As the Administrator, You may provide other Users that have joined Your Engagement Group with varying levels of permissions. This allows You to delegate different aspects of engagement and management to different people, business units, divisions, subsidiaries, or affiliates, within Your organizational network (“Delegates”).
- ADMINISTRATOR AND DELEGATE AUTHORITY. As an Administrator or Delegate, You represent and warrant that You are an authorized representative of the brand, entity (place or organization), or public figure that the Engagement Dojo represents.
RESPONSIBILITIES. As an Administrator or Delegate, You shall:
- monitor and remove, from the Engagement Dojos in Your charge, any Engagement Content that violates this Agreement, and give notice of any violations to Qwalify via email at firstname.lastname@example.org;
- represent yourself, and your authority within any organization, network or Engagement Dojos, to other Users in good faith;
- be solely responsible and liable for any Engagement Content You post in Your Engagement Dojos, and for any direct e-mails or messages You send (including the links and content provided therein) to other Users of the Qwalify Site;
- upon request by the organization which Your Engagement Dojo represents, immediately relinquish all permissions, access, and control of and in such Engagement Dojo, and assign such Administrator permissions, access and control to another individual, as appointed by the organization.
SPECIAL PROVISIONS APPLICABLE TO DEMONSTRATION SITES, BETA SITES AND FREE TRIALS
- DEMO SITES. You may have limited, private access to some parts of the Qwalify Sites and Services that were designed for demonstration use only (the “Demo Sites”). The Demo Sites are available to Users on an invitation-only basis, by the sole discretion of the Company. The Demo Sites are not designed for commercial, recruiting, or public engagement activities. You shall only access and use the Demo Sites in accordance with the purposes provided herein.
- BETA SITES. You may have limited, private access to some parts of the Qwalify Sites and Services that are in a beta testing phase – meaning, the sites, services and products therein are not in their final state, but require User testing and feedback in order to be improved for public release (the “Beta Sites”). You acknowledge and understand that the Beta Sites may contain bugs, technical glitches, disruptions, errors, or other malfunctions, and that the Company makes no representations or warranties regarding the fitness of such sites, services or products for use.
- CERTAINTY. The Demo Sites and the Beta Sites are included as Qwalify Content, and therefore, your access and use of the Demo Sites and the Beta Sites is subject to all of the terms and conditions contained in this Agreement, provided such terms are not in conflict with this Section 9.
NON-CONFIDENTIALITY AND PRIVACY
- FEEDBACK. Any communications between You and Qwalify, such as email or other correspondence, in which You offer suggestions or comments for improving or modifying the Qwalify Sites or any part thereof (“Feedback”) will be deemed by Us to be non-confidential and non-proprietary, and You agree that (a) We are therefore not subject to any confidentiality obligations with respect to the Feedback, (b) the Feedback is not confidential or proprietary information of any third party and You have all of the necessary rights to disclose the Feedback to us, (c) We may irrevocably freely use, reproduce and publicize the Feedback on the Qwalify Sites, and (d) You are not entitled to receive any compensation or re-imbursement of any kind from Us or any Users of the Qwalify Sites.
TERMINATION BY US.
- WITH CAUSE. We may terminate Your account, and Your ability to access the Qwalify Sites or portions thereof, at any time if You breach any one of Your responsibilities, representations, warrants, or obligations provided under this Agreement.
- WITHOUT CAUSE. We may terminate Your account, and Your ability to access the Qwalify Sites or portions thereof, at any time and for any or no reason, at our sole discretion, with 14 days notice sent to You via the e-mail address associated with your account. Such notice shall be deemed effective upon Our sending. Notwithstanding Subsection 4.7, in the case of such discretionary termination provided in this Subsection 11.1.2, You shall receive a prorated refund on Your subscription fees paid, as such fees are applicable to the Qwalify Services you would have received if not for the termination.
- TERMINATION BY YOU. You may delete Your account at any time, for any or no reason, by sending an e-mail request to email@example.com. Please note that even if You delete Your account, Your continued use of the Qwalify Sites or any part thereof will continue to be governed by this Agreement. Account termination is not effective until you receive confirmation from Qwalify.
- NO LIABILITY. In no event shall Qwalify or its licensors be liable to You or any third party for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with the termination of Your account. The foregoing limitations shall apply to the fullest extent permitted by law.
- SURVIVAL. Any provision of this Agreement which imposes an obligation after termination of this Agreement shall survive the termination of this Agreement.
- DMCA. It is Qwalify’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). Qwalify may promptly terminate, without notice, any User’s access to the Qwallify Sites if that User is determined by Qwalify to have infringed the rights of copyright holders.
DESIGNATED AGENT. If You believe that any material on the Qwalify Sites violates any copyright or similar right which You own or control, You may send a written notification of such infringement to Our Designated Agent as set forth below:
ATTN: COPYRIGHT AGENT
147 Liberty Street
M6K 3G3 Canada
NOTICE REQUIREMENTS. To meet the notice requirements under the DMCA, the notification must consist of a written communication that includes the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Us to locate the material (URLs are best way to help Us locate content quickly);
- information reasonably sufficient to permit Us to contact the complaining party, such as an address, telephone number and, if available, an e-mail address at which the complaining party may be contacted;
- a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
- ACCURACY OF INFORMATION. We work hard to make sure the Qwalify Content is accurate, up-to-date and complete. However, the Qwalify Content may contain errors or inaccuracies, including both typographical and substantive errors. We reserve the right, in Our sole discretion, without any obligation and without any notice requirement, to discontinue, change, improve or correct the information, materials and descriptions on the Qwalify Sites and to suspend or deny access to the Qwalify Sites for scheduled or unscheduled maintenance, upgrades, improvements or corrections. Any dated information is published as of its date only, and We have no responsibility to update or amend any such information.
- AVAILABILITY. We cannot guarantee that the Qwalify Sites, or any part thereof, will be available 100% of the time. Although We strive to provide reliable websites and services, interruptions and delays in accessing the Qwalify Sites are unavoidable and We disclaim any liability for damages resulting from such problems, including, but not limited to, lost profit, loss of opportunity, or loss of use or enjoyment.
- THIRD-PARTY WEBSITES. We do not warrant, endorse, guarantee, provide any conditions or representations, or assume any responsibility for any product or service advertised or offered by any third party through any website that can be reached from a link on the Qwalify Sites or featured in any banner or other advertising on the Qwallify Sites, or provided as Engagement Content, and We shall not be a party to any transaction that You may enter into with any such third party.
- SECURITY. Information sent or received over the Internet is generally unsecure and We cannot and do not make any representation or warranty concerning security of any communication to or from the Qwalify Sites or any representation or warranty regarding the interception by third parties of personal or other information. Although Qwalify makes good faith efforts to store information in a secure operating environment not available to the public, Qwalify cannot guarantee complete security. Qwalify disclaims liability for security breaches.
- NO WARRANTY. To the maximum extent permitted by law: the Qwalify Sites, including the Demo Sites and Beta Sites, are provided “as is” and used at Your sole risk with no warranties whatsoever; Qwalify does not make any warranties, claims or representations and expressly disclaims all such warranties of any kind, whether express, implied or statutory, with respect to the Qwalify Sites including warranties or conditions of quality, performance, non-infringement, merchantability, or fitness for use for a particular purpose.
- DISCLOSURE. Qwalify may disclose information about its Users if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to respond to subpoenas, court orders, or other legal process. Qwalify may also disclose information about its Users to law enforcement officers or others in the good faith belief that such disclosure is reasonably necessary to enforce this Agreement, respond to claims that any contributions or other User content violates the rights of third-parties, or to protect the rights, property, or personal safety of Qwalify, its owners, officers, directors, agents, subsidiaries, joint venturers, or employees, the Qwalify Sites, its Users, or the general public.
LIMITATION OF LIABILITY AND INDEMNIFICATION
- GENERAL LIMITATION. In no event shall Qwalify’s aggregate liability exceed the amounts actually paid by or due from You to Qwalify for the relevant Qwalify Services in the three (3) months prior to the date the claim arose, subject to a maximum of five thousand U.S. dollars in all cases. In no event shall Qwalify or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this Agreement or the Qwalify Site. The foregoing limitations shall apply to the fullest extent permitted by law.
- INDEMNITY. You shall indemnify and hold Us and Our subsidiaries, affiliates, licensees, directors, officers, agents, advisors and employees, harmless from all claims, threats, actions, proceedings, demands, damages, losses, obligations, costs, and expenses, including reasonable attorneys' fees, made by any third party due to or arising out of: Your breach of this Agreement; Your use of the Qwalify Sites; or, any violation by You of any rights of another (including, without limitation, all intellectual property rights and rights of publicity, personality or privacy).
- RELIANCE. You expressly acknowledge that We are making the Qwalify Sites, the Demo Sites, and the Beta Sites available to You in reliance upon the limitations and exclusions of liability and the disclaimers set forth herein and that the same form an essential basis of the contract between You and us. You expressly agree that the limitations and exclusions of liability and the disclaimers set forth herein will survive, and continue to apply in the case of a fundamental breach or breaches of, the failure of essential purpose of contract, the failure of any exclusive remedy or the termination or suspension by Us of Your use of, or access to, the Qwalify Sites.
- CONFLICTS. Further to Subsection 15.1 of this Agreement, Your use of the Qwalify Sites and the Qwalify Services is subject to any other written and duly executed contracts You may have with Qwalify. In the case of any conflict between this Agreement and such contract You have with Qwalify, the terms of Your contract shall prevail.
- AMENDMENTS. We reserve the right to alter, add to, delete, modify or change this Agreement, or any part thereof, at any time. Your use of the Qwalify Sites after any amendments or updates to this Agreement shall signify Your acceptance of such revised terms. The most current version of this Agreement will govern Your use of the Qwalify Sites. We will post any changes to the Agreement on the Qwalify Sites and update the revision date at the beginning of this Agreement. Any changes to this Agreement or waiver of Our rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of one of Our officers. No purported waiver or modification of this Agreement by Us via telephone or email communications will be valid.
- FORCE MAJEUR. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by circumstances beyond reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, war, acts of terror, strikes or other labor problems (other than those involving Our employees), failures of common carriers (including Internet service providers), denial of service attacks, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
- ASSIGNMENT. We may assign this Agreement, in whole, or in part, at any time, with or without notice to You. You may not assign Your rights or delegate Your duties under this Agreement, either in whole or in part, without Our prior written consent.
- ENUREMENT. This Agreement will enure to the benefit of and be binding upon the parties to this Agreement and their respective successors, heirs and permitted assigns.
- NON-WAIVER. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision.
- SEVERABILITY. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
- HEADINGS. Headings and any commentary provided throughout this Agreement in lightbox form, or other format designed to summarize legal terms in plain language, are for Your convenience only and shall not affect the interpretation of this Agreement.
- LANGUAGE. This Agreement was written in the English language. If this Agreement is translated into another language, the English language text shall in any event prevail. Unless the context otherwise requires, words importing the singular include the plural and vice versa, and words importing gender include all genders. Where the word “including” or “includes” is used in this Agreement, it means “including (or includes) without limitation”.
- GOVERNING LAW. This Agreement is governed and interpreted pursuant to the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein, without regard to principles of conflicts of law that would impose the law of another jurisdiction, and You agree to submit to the exclusive jurisdiction of the courts located within the Province of Ontario, Canada. Any claim or dispute in connection with this Agreement shall be resolved in a cost effective manner through binding non-appearance-based arbitration. The arbitration shall be initiated through an established alternative dispute resolution provider mutually agreed upon by the parties. The alternative dispute resolution provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, We may seek injunctive or other equitable relief to protect Our intellectual property rights in any court of competent jurisdiction.
- TRIAL WAIVER. You agree to waive any right You may have to a trial by jury, or commence or participate in any class action against Us related to the Qwalify Sites, Demo Sites, Beta Sites, the Qwalify Services or this Agreement.