Effective Date: September 30, 2019
Please read theseQualified.com, Inc. Terms of Service for SFDC AppExchange Pilot Program (the “Agreement”) carefully before using the [http://www.qualified.com] website (the “Website”) or [http://app.qualified.com] (the “App”) (together, or individually, the “Services”) operated by Qualified.com, Inc. (“Qualified”, “us”, “we”, or “our”). Your access to and use of the Services is conditioned upon your acceptance of and compliance with this Agreement. This Agreement applies to all visitors, users, and others (each a “Customer,” “you”, or “your”) who wish to access or use the Services. If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept thisAgreement on behalf of your company, and all references to "you" or "Customer" reference your company.
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION (WHICH REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS) AND A WAIVER OF CLASS ACTION RIGHTS, AS DETAILED IN SECTION10.
BY ACCESSING OR USING THE SERVICES YOU AGREE TO BE BOUND BY THIS AGREEMENT, AND IT IS IMPORTANT THAT YOU REVIEW THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. IF YOU DISAGREE WITH ANY PART OF THIS AGREEMENT THEN YOU DO NOT HAVE PERMISSION TO ACCESS THE SERVICES. FOR THE AVOIDANCE OF DOUBT, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
USE RESTRICTION. PLEASE NOTE: YOUR LICENSE AND RIGHT TO USE THE SERVICES UNDER THIS AGREEMENT IS LIMITED TO USE OF THE SERVICES SOLELY ON THE SALESFORCE APPEXCHANGE. IF YOU WOULD LIKE TO UPGRADE TO A FULL USE SUBSCRIPTION TO OUR COMPLETE SERVICES OFFERING, YOU CAN DO SO BY CONTACTING QUALIFIED AT SALES@QUALIFIED.COM. YOU HEREBY GRANT QUALIFIED AN UNCONDITIONAL, IRREVOCABLE AND PERPETUAL RIGHT TO SHARE WITH SALESFORCE.COM CUSTOMER CONTENT THAT IS NON-PERSONAL DATA TO THE EXTENT PROVIDED BY YOU IN CONNECTION WITH YOUR USE OF THE SERVICES ON THE SALESFORCE APPEXCHANGE.
The “Effective Date”of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Services through any online provisioning, registration, or order process; or (b) the effective date of the first Order Form referencing this Agreement.
“Customer Content” means content, data, and information, including text, graphics, videos, or other material, submitted, uploaded, imported, or otherwise provided to or through the Services byCustomer or by a third party on behalf of or for the benefit of Customer, including Customer’s customers and prospective customers and users of Customer Properties.
“Customer Properties” means Customer’s websites, applications, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the App.
“Documentation” means Qualified’s then-current generally available documentation, specifications, user manuals, for the Services, which can be located at www.qualified.com or such other URL as Qualified may provide from time to time, as well as any documentation included in or attached to any Order Form or such other Services-related documents provided by Qualified to Customer.
“Invite Link” means the link through which Customer may sign up and make payment in order to receive Services.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Order Form” the document describing theServices and fees to be paid by Customer and which incorporates this Agreement.
“Personal Data” means any information relating to an identified or identifiable individual.
“Sensitive Data” means (a) Personal Data subject to specialized privacy or security regimes, including without limitation the Health Insurance Portability and Accountability Act (“HIPAA”)and the standards promulgated by the Payment Card Industry (“PCI”) SecurityStandards Council (“PCI SSC”); (b) Personal Data considered to be a “special category of personal data” under the EU General Data Protection Regulation (“GDPR”); (c) Personal Data that, if breached, could trigger breach notification requirements or increase liability for Customer or Qualified, including without limitationSocial Security numbers, governmental identification information, health or medical information, biometric information, and information about criminal history; and (d) any other information that you consider to be confidential, proprietary, a trade secret, material non-public information, or that you would not want disclosed to a third party.
“Subscription Term” means the term for theServices set forth in the applicable Order Form or Invite Link.
“User” means an individual employee, consultant, contractor, or agent of Customer who has been authorized by Customer to use the Services on behalf of Customer and/or its affiliates.
2.1 Access. Subject to the terms and conditions of this Agreement, we will provide you with access to the App for the duration of the Subscription Term. Customer may access and use the App solely for its own benefit and in accordance with this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Order Form. Only Users may use and access the App, and Customer agrees that it is responsible for its User(s)’s compliance with this Agreement. Users of the Services must be under Customer’s direction and control and use and access the Services only for Customer’s internal benefit and subject to all terms and conditions of this Agreement (including but not limited to the restrictions set forth in Section 3.4 below (“Restrictions”)). Customer shall be responsible for all actions of all Users under this Agreement.
2.2 Fees and Payment. You agree to pay all fees or the Services as set forth on the applicable Order Form, unless you provide written notice of a dispute regarding such fees no later than thirty (30) days after the invoice date. The fees set forth in an Order Form are valid for theSubscription Term and thereafter may be subject to an automatic adjustment increase of up to ten percent (10%) per year. Customer is responsible for paying all taxes, and all taxes are excluded from any fees set forth in the applicable Order Form. If Customer is required by Laws to withhold any taxes from Customer’s payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, Qualified receives and retains (free from any liability for payment of taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
2.3 Any and all payments you make to us for the Services are final and non-refundable. If we agree to accept your payment via invoice, full payment must be received within thirty (30) days from the invoice date. We will provide you with notice of non-payment of any undisputed amount due. Unless the full amount not in dispute has been paid, we may suspend your access to the Services thirty (30) days after such notice. We will not suspend the access to the Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If your Services are suspended for non-payment, we may charge a re-activation fee to reinstate your access to the Services.
2.4 Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Qualified will invoice Customer for any outstanding fees for Customer’s use of the Services during the SubscriptionTerm and Customer shall promptly pay such fees.
3.1 Acceptable Use. You agree to comply with our Acceptable Use Policy
3.2 Security. You are responsible for maintaining the confidentiality of any password and username you are given or select in connection with the Services, and you are fully responsible for all activities that occur under your password or account. You agree to notify Qualified as soon as possible if you become aware of any unauthorized use of your password or username or any other breach of security.
3.3 Age. You must be eighteen (18) years or older to register for or use any parts of the Services.
3.4 Restrictions. Customer acknowledge that the Services constitute valuable property and trade secrets of Qualified and its service providers and Customer agrees not to do nor allow any of the following, and that no User shall do nor allow any of the following, without the express written authorization of Qualified: (1) make the Services available to, or use the Services for the benefit of, anyone other than yourself or the Users using the Services on your behalf; (2) sell, resell, license, sublicense, distribute, rent, lease the Services, or include any Services in a service bureau or outsourcing offering; (3) use the Services to send SPAM or store or transmit infringing, libelous, or otherwise unlawful, or tortious content, material, or data; (4) use the Services to store or transmit material or data on or through the Services in violation of law, including intellectual property laws and applicable privacy laws, or third-party rights including privacy rights, or any contract to which you are a party; (5) use the Services to store or transmit malicious or disruptive code; (6) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein;(7) attempt to gain unauthorized access to the Services or its related systems or networks; (8) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit; (9) copy the Services or any part, feature, function, graphics or user interface thereof; (10) frame or mirror any part of any Services, other than framing on your own internal intranets; (11) access or use the Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service; (12) modify, translate, or create derivative works based on the Services or any underlying software or results provided through the Services; (13) decompile, disassemble, decipher, or reverse-engineer or reverse assemble any portion of the Services, or otherwise attempt to derive any source code or underlying ideas or algorithms of the software of any other part of theServices (except to the extent such restriction is expressly prohibited by applicable statutory law); (14) develop its own database or permit any third party to develop its own database using the results or output delivered through the Services or any portion or derivatives thereof; (15) remove or alter any trademark, logo, copyright or other proprietary notices associated with theServices; or (16) breach Qualified’s Acceptable Use Policy. Qualified reserves the right, without limiting any other right or remedy, to suspend Customer’s access (and therefore, all Users access) to and use of the Services if Qualified or its service providers determine thatCustomer is engaging (or has engaged) in any of the prohibited activities set forth in this Section 3.4.
3.5 No Sensitive Data. YOU AGREE NOT TO USE THE SERVICES TO COLLECT, MANAGE, OR PROCESS SENSITIVE DATA. QUALIFIED WILL NOT BE RESPONSIBLE FOR ANY LIABILITY RESULTING FROM YOUR USE OF THE SERVICES TO COLLECT OR PROCESS SENSITIVE DATA.
3.6 Compliance with Laws. Customer agrees to comply with all Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003, or any other anti-spam laws and regulations.
3.7 Deployment of Code. Subject to all of the terms and conditions of this Agreement, Qualified grants to Customer a limited, non-transferable (except as provided in Section 12 (Assignment)), non-sublicensable, non-exclusive license during any applicable SubscriptionTerm to copy JavaScript code provided to Customer by Qualified (“Qualified Code”) in the form provided by Qualified on Customer Properties solely to support Customer’s use of the App and otherwise in accordance with theDocumentation and this Agreement. Customer must implement Qualified Code on theCustomer Properties in order to enable features of the App. Customer will implement all Qualified Code in strict accordance with the Documentation and other instructions provided by Qualified. Customer acknowledges that any changes made to the Customer Properties after initial implementation of Qualified Code may cause the App to cease working or function improperly and that Qualified will have no responsibility for the impact of any such Customer changes.
3.8 Customer Content. You are responsible for the Customer Content that you post on or through the Services, including its legality, reliability, and appropriateness. By posting Customer Content on or through the Services, you represent and warrant that: (a) the Customer Content you post on or through the Services is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in this Agreement; (b) the posting of your Customer Content on or through theServices does not violate the privacy rights, publicity rights, copyrights, contract rights, or any other rights of any person or entity; (c) the Customer Content will comply with any and all Customer terms of service, privacy policies and other agreement(s) governing the Customer related to Customer Content; and (d) the Customer Content does not violate any Laws, including without limitation those related to data privacy or security. With respect to attribute data (such as visitor IP address, cookie data, device/advertising IDs, page attribute data) collected or otherwise provided by Customer in connection with this Services, Customer agrees that each of Qualified’s third party service providers powering the Services may use such attribute data to improve and enrich its scoring models and databases and the results it provides to its customers through its services, including correlating and aggregating descriptive attribute data. Customer is responsible for and shall obtain all licenses, rights and permissions necessary for the provision to and use of Customer's data by Qualified and its third party service providers, in accordance with the terms of this Agreement.
3.9 Monitoring Customer Content. Qualified has the right but not the obligation to monitor Customer Content and Customer’s use of the Services to determine compliance with the terms of this Agreement.Nevertheless, Qualified may monitor or review Customer Content as it chooses. Qualified reserves the right to remove, terminate access to, reject, restrict, or revise content that it deems inappropriate or otherwise objectionable for any reason whatsoever at any time, without prior notice and in Qualified’s sole discretion, in the event a User is found or reasonably believed by Qualified to be infringing on a copyright or otherwise in violation of this Agreement. We take no responsibility and assume no liability for Customer Content you or any third-party posts on or through the Services.
3.10 Disclosures on Customer Properties. Customer acknowledges that its use of the App requires that a unique cookie ID be placed on CustomerProperties associated with each individual who accesses the Customer Properties. This cookie ID enables Qualified to provide the App. Customer will include on each Customer Property a link to a privacy policy that discloses Customer’s use of third-party tracking technology. Customer’s privacy policy must (a) disclose how, and for what purposes, the data collected through third-party tracking technologies will be used and shared; and (b) provide clear and comprehensive information about the storing and accessing of cookies or other information on the individuals’ devices. For clarity, as between Customer and Qualified, with respect to the Customer Properties and Customer Content, Customer will be solely responsible for providing the necessary notices to, and obtaining the necessary clearances, consents and approvals from, individuals under all applicable laws.
3.11 Child-Targeted Customer Properties. Customer agrees that its Customer Properties are not targeted to, nor does Customer knowingly collect Personal Data from, children under the age of sixteen (16), unlessCustomer first obtains consent, as required by applicable law.
3.12 Customer Proprietary Rights. You own and retain all the rights to your Customer Content and you are responsible for protecting those rights. This Agreement does not grant us any ownership rights to Customer Content. You grant us a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Content as necessary to provide the Services and as permitted by this Agreement. If you are using our Services on behalf of another party, then you represent and warrant that you have the sufficient and necessary rights and permissions to do so.
3.13 Feedback. Customer hereby grants toQualified a royalty-free, worldwide, transferable, sublicensable, fully paid up, royalty free, irrevocable, and perpetual license to use and/or incorporate into Qualified’s products and services and exploit in any manner or media any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to Qualified’s products and services. Qualified shall not identify Customer as the source of any such feedback without Customer’s prior written consent.
4.1 Term and Renewal. Your initial Subscription Term will be set forth in the Order Form or Invite Link. At the expiration of the initial Subscription Term, the Subscription Term will automatically renew for additional terms of the same duration unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
4.2 Termination. Your initial Subscription Term will be set forth in the Order Form or Invite Link. At the expiration of the initial Subscription Term, the Subscription Term will automatically renew for additional terms of the same duration unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
4.3 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services. Provided this Agreement was not terminated for Customer’s breach, Customer may retain and use internally copies of all reports exported from the Services prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Data input into any Service, and that Qualified may delete any such data as may have been stored by Qualified at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
4.4 Survival. All provisions of this Agreement, which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
5.1 Qualified Proprietary Rights. You acknowledge that we retain all right, title, and interest in and to the Services, our name, logo, or other marks (the “Qualified Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. You agree that you will not use or register any mark, business name, domain name, or social media account name or handle which incorporates in whole or in part the Qualified Marks. In addition, information provided by Qualified as part of provision of the Services is the property of Qualified or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use such information, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.
5.2 Aggregated Data. Notwithstanding anything to the contrary herein, Customer agrees that Qualified may aggregate, collect, use, or disclose technical and other data about Customer’s use of the Services that is non-personally identifiable with respect to Customer, and that Qualified may use such data to analyze, improve, support, and operate theServices, optimize Qualified operations, and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate best practice guidance, recommendations, or similar reports for distribution to and consumption by Customer and others. For clarity, this Section does not give Qualified the right to identify Customer as the source of any data described in this Section.
Qualified will indemnify, defend, and hold you harmless against any claim made or brought by a third party against you (and your officers, directors, employees, agents, and Users), and any resulting damages or costs (including reasonable attorneys’ fees) awarded by a court or included as part of a final settlement (each a “Claim”), against you alleging that your use of the Services in accordance with this Agreement or any Order Form infringes or misappropriates such third party’s intellectual property rights. The foregoing obligations do not apply with respect to any Claim based on or arising from (a) your unauthorized or illegal use of the Services, (b) your breach of this Agreement or any applicable Order Form or other contract between you and Qualified, (c) your use of the Services combined with products, services, processes, content, or materials not supplied by Qualified, or (d) the unauthorized use of the Services by a third party using your User information.
You will indemnify, defend, and hold us harmless, at your expense, against any Claim brought against us (and our officers, directors, employees, agents, service providers, and licensor) by a third party based upon or arising out of Customer Content, Customer Properties, or any of the foregoing clauses (a) – (d). The indemnified party will promptly: notify the indemnifying party in writing of any such Claim; give the indemnifying party sole control of the defense or settlement of such a Claim; and provide the indemnifying party with any and all information and assistance reasonably requested by it in connection with the defense or settlement of the Claim. The indemnifying party shall not accept any settlement that (i) requires the indemnified party to make an admission of fault or wrongdoing; or (ii) imposes liability not covered by these indemnification provisions without the indemnified party’s consent.
7.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the“Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). For the avoidance of doubt, all non-public information regarding the Services, and the corresponding software and documentation, and all enhancements and improvements thereto will be deemed the Confidential Information of Qualified.
7.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees or independent contractors of such party who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement.
7.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
7.4 Publicity. You grant us the right to add your name and company logo to our marketing materials, including our customer list and Website.
8.1 Limited Warranties. Qualified represents and warrants, for Customer's benefit only, that the Services will be provided in a professional and workmanlike manner in accordance with industry standards and the applicable Documentation. Qualified’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this limited warranty will be, at no charge to Customer, for Qualified to use commercially reasonable efforts to correct the reported non-conformity, or if Qualified determines such remedy to be impracticable, either party may terminate the applicable Subscription Term, and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid that are applicable to the period after such termination. The limited warranty set forth in this Section will not apply: (a) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity; or (b) if the error was caused by Customer’s misuse or modifications to the Services or use of the Services in conjunction with third-party hardware, software, or services.
8.2 Warranty Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS”. FURTHER, EXCEPT AS PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. QUALIFIED MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING (A) THE SUITABILITY OR COMPLETENESS OF THE SERVICES, INCLUDING WHETHER THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES; (C) THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; OR (D) THE PRESERVATION OR MAINTENANCE OF THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION.
9.1 CAP. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S TOTAL AGGREGATE LIABILITY WILL BE LIMITED TO THE SUM OF ALL FEES PAID AND PAYABLE BY CUSTOMER TO QUALIFIED IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.
9.2 DISCLAIMER. EXCEPT FOR EXCLUDED CLAIMS,IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITIES, FAILURE OF SECURITY MECHANISMS, OR INTERRUPTION OF BUSINESS.
9.3 EXCLUSIONS. “EXCLUDED CLAIMS” MEAN ANY CLAIMS ARISING FROM OR RELATING TO (A) INDEMNIFICATION OBLIGATIONS, (B) BREACHES OF CONFIDENTIALITY, OR (C) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9.4 Nature of Claims. The parties agree that the waivers and limitations specified in this Section apply regardless of the form of action, whether in contact, tort (including negligence), strict liability, or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
YOU SHOULD READ THIS SECTION CAREFULLY, AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
10.1 Dispute Resolution. You may contact us at optout@qualified.com to address any concerns you may have regarding the Services. Qualified is able to resolve most concerns quickly to our Users’ satisfaction. You and Qualified agree to use commercially reasonable best efforts through Qualified’s internal dispute resolution processes to settle any dispute, claim, question, or disagreement and engage in good faith negotiations, which shall be a condition to either party initiating a lawsuit or arbitration.
10.2 Arbitration. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution under the initial dispute resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Any claim that you might have against Qualified must be resolved through binding arbitration before the American Arbitration Association using its Commercial Arbitration Rules and must be brought within one (1) year of the claim arising.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable, or 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, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
YOU UNDERSTAND AND AGREE THAT YOU WILL ARBITRATE WITH QUALIFIED IN YOUR INDIVIDUAL OR CORPORATE CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. Your claim may not be joined with any claim of any other person, and there shall not be authority for any dispute to be arbitrated on a class-action basis. If any court or arbitrator determines that the class action waiver set forth in this Section is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions in this Section shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
You understand and agree that unless you can demonstrate to Qualified that arbitration in California would create an undue burden for you, any arbitration hearing will be held in San Francisco County, California. If your claim is successful in arbitration, Qualified agrees to reimburse your reasonable attorneys’ fees and costs.
You understand and agree that by entering into this Agreement, you and Qualified are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence this arbitration provision, you and Qualified might otherwise have had aright or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others(including class actions). Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (meaning patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights) or Confidential Information.
You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth in this Section by sending written notice of your decision to opt out to the following address: Qualified.com Inc., 450 Mission Street, Suite 204, San Francisco, CA 94105. The notice must be sent within thirty (30) days of the Effective Date; otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Qualified also will not be bound by them.
10.3 Venue. For any dispute not subject to arbitration, you and Qualified agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in SanFrancisco County, California. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
10.4 Injunctive Relief. Notwithstanding the above provisions, Qualified may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
Please review our Privacy Policy, which also governs your use of the Services, to understand our practices regarding the information we collect about you through the Services. By using the Services, you indicate that you have read, understand and agree to the terms and conditions of our Privacy Policy, including its disclosures regarding collection, use, and disclosure of your information in accordance with our Privacy Policy.
12.1 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility or sabotage; act of God; electrical, internet or telecommunication outage that is not caused by the obligated party; government restrictions; epidemic, pandemic or governmental order; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
12.1 Relationship of the Parties. The parties understand and agree that no joint venture, partnership, employment, or agency relationship exists between us.
12.3 Compliance with Laws. We will comply with all applicable laws in our provision of the Services and in our processing of Customer Content.
12.4 No Waiver. No delay in exercising any right or remedy or failure to object will be considered a waiver of such right or remedy, or of any other right or remedy. A waiver on one occasion shall not be a waiver of any right or remedy on any future occasion.
12.5 Severability. If any part of this Agreement or of an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
12.6 Notices. Notice to Qualified will be sent to the following email address: legal@qualified.com, and will be deemed delivered as of the date the notice is actually received. We will send you notices at the email address you have provided in your Qualified subscription account information. We may give electronic notices by general notice via the Services or may give electronic notices specific to you by email to your email address(es) on record in our account information for you. You must keep all of your account information current.
12.7 Entire Agreement. This Agreement (together with any Order Forms, Invite Links and Qualified’s Privacy Policy and Acceptable Use Policy) constitute the entire agreement between you and us regarding our Services and supersedes and replaces any prior agreements we might have had between you and us regarding the Services.
12.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld or delayed); provided, however, either party may transferor assign this Agreement (including all Order Forms and Invite Links), without the other party’s consent, to an affiliate or in connection with a merger, acquisition, divestiture, spin off, corporate reorganization, change in control or similar such transaction or sale of all or substantially all of its stock or assets related to this Agreement, provided such party provides the other party of notice of such assignment promptly after the applicable assignment and transaction have been completed.
12.9 No Third-Party Beneficiaries. No person or entity not a party to the Agreement will be a third-party beneficiary.
12.10 Authority. Each party represents and warrants that (a) it has full corporate power and authority, and has obtained all corporate approvals, permissions, and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (c) the entering into and performance of this Agreement do not and will not conflict with any agreement, instrument, judgment, or understanding, oral or written, to which it is a party or by which it may be bound.
12.11 Precedence. In the event of a conflict of terms between this Agreement and any Order Form, the Order Form will control.
12.12 Governing Law. This Agreement and your relationship with us shall be governed and construed in accordance with the laws of the State of California, United States, without regard to its conflict of law provisions.
12.13 Changes. We reserve the right, at our sole discretion, to modify or replace this Agreement at any time. If a revision is material, we will provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Services after any revisions become effective, you agree to be bound by the revised terms of the Agreement. If you do not agree to the new terms, you are no longer authorized to use the Services.
