These terms of service constitute a legally binding agreement (the “Agreement”) between you and Kwal, Inc. (“Kwal,” “we,” “us,” or “our”) governing your use of the Kwal application, websites, technology platform, and related services, applications, or platforms (collectively, the “Platform”).

 

By entering into this Agreement, you expressly acknowledge that you have read and understand this Agreement and accept all of its terms and conditions without limitation or qualification. If you do not agree to be bound by the terms and conditions of this Agreement, you may not use or access the Platform.

 

Please be advised: This Agreement contains provisions that govern how claims you and Kwal have against each other can be brought. These provisions will, with limited exception, require you to submit claims you have against Kwal to binding and final arbitration on an individual basis, not as a plaintiff or class member in any class, group or representative action, or proceeding.

 

No Emergency Calling: Do not use the Platform or any Services, including any telephone numbers to which you have access through the Platform, to call emergency services. You must make alternative communications arrangements to make emergency calls. You acknowledge and agree that the Services are not a substitute for a traditional telephone and that you will not use the Platform or Services to make emergency calls using 911 or through other telephone numbers. You further agree that you will advise any users of the Services that the Services do not provide emergency calling functionality.

 

 

The Kwal Platform

 

The Platform enables users to use a voice-first agent (“Agent”) to connect with candidates regarding career opportunities for their company and their company’s clients. Kwal is only a Platform to facilitate messaging and communications using an agent. Users have sole responsibility and liability for the content and transmission of the messages and communications.

 

All individuals who access the Platform, are collectively referred to herein as Users (“Users”).  Users are required to create an account to access the Kwal application and certain other aspects of the Kwal Platform. For purposes of this Agreement, the usage of the agent and any communication tools used by the agent provided by Kwal such as text, voicemail or email is referred to as the Services (“Services”). The decision by a User to use or accept these Services is a decision made in each User’s sole discretion. 

 

 

The Platform offers Users a portal through which they can configure the frequency of the agent’s communications, review transcripts, comment on the transcript, receive a call summary and score, and listen to the call.

 

The  Platform utilizes a pool of VOIP phone numbers that may be shared between all customers when sending outgoing communications or other messages. We may modify, add, or remove numbers from this pool at our discretion. We cannot assure you that any number that was previously used from the pool will be available via the Platform for future use.

 

Compliant Use of the Kwal Platform
 

The Services offered through the Platform are subject to a number of local, state, federal, and foreign laws, regulations, rules, ordinances, directives and orders or various governments and agencies (“Laws”). WE DO NOT PROVIDE LEGAL ADVICE AND WE MAKE NO REPRESENTATIONS ABOUT THE PLATFORM OR ITS ABILITY TO COMPLY WITH THESE LAWS. YOUR USE OF THE PLATFORM DOES NOT ENSURE YOUR COMPLIANCE WITH THESE LAWS.

 

It is your responsibility alone to access and use our Platform and the Services available in accordance with applicable laws, including without limitation, the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED ACT), the Telemarketing Sales Rule (TSR), the Telephone Consumer Protection Act (TCPA) and the Controlling The Assault of Non-Solicited Pornography and Marketing (CAN-SPAM ACT OF 2003). As features and functions of the Platform, and Services available through the Platform change, you must evaluate whether and how you can use such features and functions, including any settings and account preferences, to ensure compliance with laws. 

 

Kwal makes no representation about whether the Platform is or may be considered an “automated dialing system” or whether using the Platform is or may be considered initiating or making a call as contemplated by the TCPA or similar laws. You should consult your legal counsel for such a determination. You acknowledge that you are solely responsible for all acts and omissions taken by or under your account and any violation of applicable laws that may occur in connection with your account or use of the Platform by you, your employees or contractors. You represent and warrant that you will comply at your expense with all the laws that apply to you or your business or use of the Platform, including without limitation, TRACED ACT, TSR, TCPA, and CAN-SPAM.

Kwal makes no representation about whether the Platform is or may be considered an Automated Employment Decision Tool (“AEDT”), as contemplated by NYC Local Law 144 or any other similar laws, statutes or regulations. You should consult your legal counsel for such a determination. You represent and warrant that you will comply at your expense with all the laws relating to AEDT as it relates to you or your business or use of the Platform.

Kwal maintains a zero-tolerance policy towards spam and your use of the Platform to send spam may result in termination of your account and access to the Platform. You acknowledge and agree that you have sole responsibility for obtaining any consents for all phone numbers, that you sync or upload to the Platform, and for complying with any terms and/or conditions that may govern the consent you received to contact these phone numbers.

 

User Warranties and Representations

 

You represent and warrant that you are responsible for all third party contact information such as phone numbers, messages, data, text, video, photos, audio and all other materials and information (including personal information of your candidates) that you upload or sync to the Platform.

You represent and warrant that these phone numbers which you contact through the Platform (1) are not listed on any applicable Do Not Call Registry(s) and (2) have expressly consented or otherwise opted-in to the receipt of such calls and messages as required by applicable laws. You must maintain such records and other proof of such consents and opt-ins from each contact for four years from the date of each message or call you send through the Platform and provide us with proof of such consents and opt-ins as we may request.

You represent and covenant that you will not access or otherwise use any third- party list of phone numbers or otherwise engage in unsolicited messaging using the Platform in violation of applicable Laws. Additionally, you agree not to send messages or calls to your contacts beyond the frequency represented in any disclosures or terms you have with such contacts.

You represent, warrant, and covenant that any individuals requesting “Do-Not- Call” (“DNC”) status or otherwise requesting that you cease further communications with them will immediately be placed on your DNC list and you will not initiate any subsequent messages or calls to any individuals after they make a DNC or other opt-out or stop request. Kwal has no responsibility to process or notify you of any DNC or opt-out requests even if such requests are conveyed to you from your contacts via the Platform or numbers made available to you via the Platform. It is solely your obligation to monitor your account to implement such DNC and opt-out requests.
 

You represent and warrant that you will (i) cooperate with any inquiry from the Industry Traceback Group (“ITG”) overseen by US Telecom; (ii) respond promptly to requests for Traceback Information received from the ITG administrator; (iii) conform to ITG policies and procedures; and (iv) respond to “Do Not Originate” or “Trace Forward” requests made by the ITG administrator. “Traceback Information” means information relevant to determining the origin of suspected illegal robocalls or other malicious traffic, including the identities of immediately preceding service providers in the call path of such traffic, as well as call volumes originating from suspicious telephone numbers or transiting a service provider’s network.

 

Accounts & Eligibility

 

The Platform is designed to enable Users to use the Agent to make their lives easier, and we expect all Users to engage in a manner that is truthful and does not violate any applicable laws or regulations, agreements with third-parties, third party rights, this Agreement, or Kwal’s policies.  You expressly agree not to use a false identity or provide any false or misleading information when creating an account or otherwise engaging with the Kwal Platform.  Absent a legitimate purpose for doing so, Users should only create one Kwal account, and creating multiple accounts to engage in behavior that violates this Agreement or to circumvent enforcement or other processes is strictly forbidden.

 

The Platform may only be used by or with the express permission and supervision of individuals who can enter into legally binding contracts. The Platform is not available to Users under the age of eighteen (18) years old. By becoming a User, you represent and warrant that you are at least eighteen (18) years old and that you will use the  Platform and Services only for lawful purposes and in accordance with this Agreement. If you are under eighteen (18) years old or have not reached the age of majority in your jurisdiction of residence, you represent and warrant that you have your parent or legal guardian’s permission to use the Kwal’s Platform and Services.  

 

Users who have had their User account suspended or terminated are not eligible to use the Platform unless otherwise expressly permitted by Kwal.  
 

Disclaimers

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The following disclaimers are made on behalf of Kwal, our affiliates, subsidiaries, parents, successors, and assigns, and each of our and their respective officers, directors, employees, agents, and shareholders.

 

THE  PLATFORM IS PROVIDED ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED, OR STATUTORY. WE DO NOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE PLATFORM AND/OR THE SERVICES, INCLUDING THE ABILITY TO PROVIDE OR RECEIVE SERVICES AT ANY GIVEN LOCATION OR TIME.  WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.

We do not warrant that your use of the Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, error-free, or will meet your requirements, that any defects in the  Platform will be corrected, or that the  Platform is free of viruses or other harmful components.  We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Platform or Services.

 

Kwal expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account, or you suspect any other breach of security, you agree to notify us immediately.

 

Kwal is not responsible for the conduct, whether online or offline, of any User of the Platform or Services. You are solely responsible for your interactions with other Users.

 

It is possible for others to obtain information about you that you provide, publish, or post to or through the Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the Platform or through the Services. 

We reserve the right, but we have no obligation, to monitor the Platform and remove anything that in our sole opinion violates, or is alleged to violate, the law or this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
 

Communications

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By becoming a User, you agree to receive communications from us and our representatives, and you are representing and warranting that you are permitted to receive calls, text, and others messages at each of those phone numbers.including via e-mail, video call, chat, text message, phone or voice call, and push notification, which may be prerecorded and/or generated by automatic telephone dialing systems or other automatic communication systems. 

 

Communications from Kwal, its affiliated companies, and/or other Users may include, but are not limited to: operational communications concerning your User account or use of the Platform or Services, updates concerning new and existing features on the Platform, communications concerning Kwal, and other communications.  Standard text messaging, data, and voice charges applied by your cell phone carrier will apply. 

You understand that you may opt out of receiving text messages by texting the word “STOP” in response to any message from Kwal or by emailing info@kwal.com.  You may opt out of marketing-related emails by following the opt-out or unsubscribe instructions at the bottom of the email, or by contacting us at info@kwal.com.  If you do not choose to opt out, then Kwal may contact you as outlined in our Privacy Policy.

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Notice

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Kwal may give notice by means of a general notice on the Platform, electronic mail to the email address associated with your account, or text message to any phone number provided in connection with your account.  For notices made by email or text message, the date of receipt will be deemed the date on which such notice is transmitted.
 

Modifications to Terms of Service & Policies Incorporated by Reference

 

Kwal reserves the right to make changes to this Agreement (including the other policies incorporated by reference), or any portion thereof, at any time in our sole discretion. Any changes will be posted on the Platform, indicating the date on which the terms were last updated, and/or otherwise communicated to you in writing.  Any changes will be effective upon the date of posting, unless explicitly stated otherwise. As long as you use the  Platform, you are agreeing to this Agreement and any updates we make to it. If you disagree with the updated Agreement, you may terminate this Agreement with immediate effect by discontinuing your use of the Platform. Your continued use of the Platform following the effective date of any modified terms indicates your acceptance of such modified Agreement.

 

Privacy Policy

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Our collection and use of personal information relating to your access to and use of the Platform is described in our Privacy Policy, which shall form part of this Agreement between you and Kwal.

 

Prohibited Activities

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With respect to your use of the Platform and your participation in the Services, you agree to NOT:

 

1. Violate, breach, or circumvent any applicable laws or regulations, agreements with third-parties, third party rights, this Agreement, or Kwal’s policies;

2. Discriminate against or harass anyone, including on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or other protected class;

3. Communicate with others on the Platform, or otherwise use the Platform, in a manner that is abusive, offensive, disruptive, deceptive, fraudulent, obscene, vulgar, pornographic, indecent, sexually explicit, violent, incendiary, or threatening;

4. Use the Platform (a) for any commercial, advertising, solicitation, or other purpose not expressly permitted by this Agreement, or (c) in a manner that falsely implies Kwal’s endorsement or partnership or otherwise misleads others as to your affiliation with Kwal;

5. Interacting with others using the Platform in a manner which is false, inaccurate, or misleading (directly or by omission);

6. Solicit login information or access an account belonging to someone else, or use a discount, access, referral, or other access code that you are not eligible to use (as determined by Kwal in its sole discretion);

7. Modify, adapt, translate, reverse engineer, decipher, decompile, or otherwise disassemble any portion of the Platform;

8. Attempt to intercept or expropriate any system, data, or personal information;

9. Avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological, security, or enforcement measure implemented by Kwal; 

10. Transmit any malicious code, files, or programs designed to interrupt, damage, destroy, or limit the functionality of the Platform;

11. Engage in patterns of behavior that indicate a reckless disregard for people’s time; or

12. Share a user or candidate’s personal or confidential information with a third party without their explicit consent. 

13. Promote products, services, or content commonly associated with unsolicited commercial messages (“SPAM”); and

14. Disseminate other content, products, or services that Kwal finds reasonably objectionable.

 

If we suspect that you are engaging in prohibited activity, we may take action, in our discretion, to investigate and address the behavior, including, but not limited to, issuing a warning, suspending or terminating your account, contacting law enforcement, or taking other action in our sole discretion. You agree to cooperate with any investigations conducted by Kwal and promptly provide any information requested by Kwal.

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Export Controls

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You may not use the Platform to conduct an export or re-export that would constitute a violation of any applicable export laws or regulations.

You represent that you are not (1) located in a country that is subject to a U.S. government embargo, and/or (2) listed on any U.S. government list of prohibited or restricted parties.

 

Law Enforcement Requests

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Kwal may share information regarding you and your use of the Platform if a government authority requests information or we think disclosure is required or appropriate in order to comply with any laws, regulations, or a legal process. Kwal may also share information with law enforcement, government officials, or other third parties if Kwal thinks doing so is necessary to protect the rights, property, or safety of Kwal, Kwal’s employees, Kwal’s Users, or the public (wherever located).

 

Suspension and Termination

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Kwal may suspend or terminate your account at any time and for any reason without notice to you.

In the event of any termination or expiration of this Agreement, the following sections of this Agreement will survive and still apply: Kwal Terms of Service, The Kwal Platform, Dispute Resolution and Arbitration Agreement, Limitation of Liability, Disclaimers, Indemnification, Confidentiality, User Representations and Warranties, Copyright Policy, Intellectual Property, User Submissions Media Agreement, Waiver, Severability and Survival, Privacy Policy, Suspension and Termination, and Entire Agreement.

 

Confidentiality

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You agree not to use any technical, financial, strategic, or other proprietary and confidential information relating to Kwal’s business, operations, and User information (“Confidential Information”) disclosed to you by Kwal or any User for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Kwal with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Kwal or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Kwal; becomes known to you, without restriction, from a source other than Kwal without breach of this Agreement by you and otherwise not in violation of Kwal’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that you shall provide prompt notice of such court order or requirement to Kwal to enable Kwal to seek a protective order or otherwise prevent or restrict such disclosure.

 

Intellectual Property

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All intellectual property rights in the Platform shall be owned by Kwal absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered), and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company, or product names set forth in the  Platform are the property of their respective owners, and the use thereof inures to the benefit of each owner. Any use of such other trademarks, logos, service marks, company, or product names is intended to denote interoperability or provide information and does not constitute an affiliation by Kwal with any third party or an endorsement or approval by any third party of Kwal or its respective products or services.

 

User Submissions Media Agreement

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By using the  Platform and participating in the Services, you agree to the User Submissions Media Agreement, which shall form part of this Agreement between you and Kwal. This agreement contains specific terms relating to how Kwal may use content created and submitted by you to Kwal, including with respect to intellectual property rights, licenses, and publicity rights.  It further allows Kwal to publicize and commercially use your name, likeness, image, appearance, voice, professional and personal biographical information, and personal characteristics that you have provided to us.

 

License

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Subject to your compliance with this Agreement, Kwal grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (1) access and use the Kwal on your corporate devices (or personal devices if approved for usage by your company) solely in connection with your use of the Platform; and (2) access and use any Kwal content, information, and related materials that may be made available through the Platform, in each case solely for your non-commercial use. Any rights not expressly granted herein are reserved by Kwal and Kwal’s licensors.

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Feedback

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At Kwal, we encourage feedback so we can constantly improve our Services and provide a great User experience. When providing feedback, you agree that we are free to use the information provided without restriction and without compensation or other legal or equitable obligation to you.

 

Claims of Copyright Infringement

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Kwal respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any item on the Platform infringes upon your copyrights, please review our Copyright Policy, for information on how to submit a copyright complaint.

 

Dispute Resolution and Arbitration Agreement

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Overview of the Dispute Resolution Process: Kwal is committed to participating in a consumer-friendly dispute resolution process. To that end, this Agreement provides for a two-part process for disputes: (1) an informal negotiation directly with Kwal, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by the Arbitration Agreement below).

 

Pre-Arbitration Dispute Resolution and Notification: Prior to initiating an arbitration, you and Kwal each agree to notify the other party of the dispute and first attempt to negotiate an informal resolution of the dispute. We will contact you at the email address you have provided to us; you can contact Kwal by emailing us. If, after a good faith effort to negotiate, you or we feel the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration.

 

Arbitration Agreement

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By agreeing to this Agreement, you agree that you are required to resolve any claim that you may have against Kwal, our affiliates, subsidiaries, parent companies, successors, and assigns, or any of our or their respective officers, directors, employees, agents, representatives, or shareholders (collectively, the “Kwal Parties”), on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against the Kwal Parties, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Kwal Parties by someone else.

Agreement to Binding Arbitration Between You and the Kwal Parties: You and the Kwal Parties agree that any dispute, claim or controversy arising out of or relating to (1) this Agreement or the existence, breach, termination, enforcement, interpretation, or validity thereof, (2) your access to or use of the Platform or Services at any time, whether before or after the date you agreed to this Agreement, (3) your receipt of any communications, including without limitation, calls or text messages, from any Kwal Party, or (4) any advertising for the Platform or Services, will be settled by binding arbitration, and not in a court of law, provided however, that you and the Kwal Parties retain the right to bring an individual action in small claims court (if the action qualifies, remains in such court, and advances only on an individual basis) and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This Arbitration Agreement also does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against the Kwal Parties on your behalf.

You acknowledge and agree that you and the Kwal Parties are waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and we otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. If applicable law precludes enforcement of any of this paragraph’s limitations as to a given claim for relief, then the applicable claim shall be severed from the arbitration and may be brought into the state or federal courts in San Francisco County, California. All other claims shall be arbitrated.

Rules and Governing Law: The arbitration will be administered by the AAA in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.

The parties agree that the Arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any other choice of law or other provision in the Agreement, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of California, exclusive of any conflicts of law provisions.

Process: A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules at https://www.adr.org/Forms or by calling the AAA at 1-800-778-7879). The Arbitrator will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

Location and Procedure: Unless you and Kwal otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $25,000, then the arbitration will be conducted solely on the basis of documents you and Kwal submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision: The Arbitrator will render a binding award within the time frame specified in the AAA Rules. If there is no appeal as stated below, the Arbitrator’s decision shall be final, binding, and conclusive on the parties and the judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will not be entitled to an award of attorneys’ fees and expenses, except to the extent required under applicable law or AAA rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, the Kwal Parties agree not to seek, and hereby waive all rights they may have under applicable law or the AAA rules, to recover attorneys’ fees and expenses if they prevail in arbitration.

Appeals: At either party’s election and within thirty (30) days of receipt of the arbitrator’s award, such award may be appealed to another arbitrator (“Appellate Arbitrator”) who shall be chosen in the same manner as described above. The Appellate Arbitrator shall apply the same standard of review as an appellate court in the same jurisdiction would apply to review the decisions of a trial court, and shall issue an opinion based on such review and law. The Appellate Arbitrator’s decision shall be final, binding, and conclusive on the parties and may be entered in any court of competent jurisdiction.

Fees: Your responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules.

Changes: If Kwal changes these Dispute Resolution Provisions and Arbitration Agreement after the date you first agreed to the Agreement (or to any subsequent changes to the Agreement), you may reject any such change by providing Kwal written notice of such rejection within thirty (30) days of the date such change became effective, as indicated in the “Effective” date of the updated Agreement as shown on the Kwal Platform.

 

This written notice must be provided by email (from the email address associated with your Account if you are a registered User) to: info@kwal.ai. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Kwal in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Agreement (or to any subsequent changes to the Agreement).

Severability: If applicable law precludes enforcement of any of the Arbitration Agreement’s limitations on class, collective, consolidated or representative proceedings as to a particular claim for relief, then the applicable claim, and only that claim, shall be severed from the arbitration, brought into the state or federal courts of competent jurisdiction in San Francisco County, California and stayed in litigation pending the outcome of any individual claims remaining in arbitration. If any other provision of this Agreement is found to be unenforceable or invalid for any reason, the parties shall remain bound by all other provisions hereof and the invalid or non-binding provision shall be replaced with provisions that are valid and binding and have, to the greatest extent possible, a similar effect as the invalid or non-binding provision.

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Indemnification

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You agree to release, defend (at Kwal’s option), indemnify, and hold the Kwal Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (1) your breach of this Agreement or Kwal’s policies, (2) your use (or misuse) of the Platform or any Services, including any user submissions, (3) your use of the agent to  interaction with any candidate or other person, including without limitation any injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, or (4) your breach of any laws, regulations, or third party rights, including without limitation, TRACED ACT, TSR, TCPA, CAN-SPAM, NY Local Law 144, and any law enforcement or regulatory investigation regarding the same

 

Limitation of Liability

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IN NO EVENT WILL ANY KWAL PARTIES BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE  PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PLATFORM MAY BE USED BY YOU TO REACH OUT TO CANDIDATES USING A AGENT, BUT YOU AGREE THAT KWAL HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO THE SERVICES PROVIDED TO BY OTHER THIRD PARTY PROVIDERS THAT KWAL RELIES UPON. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

 

Choice of Law

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This Agreement shall be governed by and construed in accordance with the laws of California, without giving effect to any conflict of law principles, except as may be otherwise described in the Arbitration Agreement section of this Agreement. This provision is specifically intended to specify the use of California law when interpreting this Agreement. This provision is not intended to create any other substantive right to non-Californians to assert claims under California law whether by statute, common law, or otherwise.

 

Waiver

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A waiver of any terms of this Agreement will not be deemed a further or continuing waiver of such term or any other term. Kwal’s failure to assert a right under this Agreement does not constitute a waiver of such right.

 

Severability and Survival

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If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non- binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.

 

Entire Agreement

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This Agreement sets forth the entire understanding and agreement between you and Kwal with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.

 

Contacting Kwal

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Feel free to contact us at info@kwal.ai any time with any questions or comments regarding this Agreement.