Hello and welcome to this website (“Site”) and the family of services and websites presented by Fit First Technologies International Inc. (“Fit First”), including TalentSorter, TalentSeeker, and others. These terms apply to everyone who visits this Site, and explain what you can do, what we can do, and what happens if one of us doesn’t follow the terms. Be aware that there may be terms contained herein from time to time that are not applicable to you based on your specific use or the specific product you are using. We encourage you to read our terms and be sure that you are using our Site appropriately. This is important because these terms and conditions are a legally enforceable contract between you and Fit First.
This Site is primarily a matching system, facilitating the intelligent matching of people with job opportunities using a selection of proprietary tools and cutting-edge science. There are three types of users who will access the Site:
Visitors – Visitors to the Site may visit various pages to learn more about the services we offer and explore other information we publish on our Site (“Visitors”).
Representative of an Organization (“Employer”) – Primarily recruiters and hiring managers who are looking for help finding the right people to employ for their organization.
Individual Users – People who are interested in finding their ‘Right Next Thing’ (the “Job Seeker”) and people who have applied to an Employer’s job posting (the “Candidate”).
As an Employer you have the ability to do a variety of things – including posting a single job opening, building your own recruitment center, building a custom assessment product specific to each position, and creating (with the help of our powerful platform) the online first interview process through which candidates advance. Heck, the system will even handle advertising and reference checks for you.
As a Job Seeker you have the ability to use our tools to introduce yourself to organizations you are interested in, and apply for specific roles. You will also be offered the opportunity to create a personal profile and set your preferences; describing the kinds of opportunities you’d be interested in hearing about. All users who are applying for a job will also need to complete our TalentSorter Assessment which is a psychometric assessment and job benchmarking process that is used to rank candidates on the basis of their likely fit in a specific position and involves responding to between 50 and 250 questions (the “TalentSorter Assessment”).
Job Seekers’ profile information and preferences remain the property of the Job Seeker, to be shared at their choice with specific organizations, in relation to specific roles, at which point that instance of the individual’s information becomes the property of the organization. We believe Job Seekers should always be in control of who receives their information.
Job Seekers’ assessment data remain the exclusive property of Fit First, and will only be shared with employers at a Job Seeker’s direction, when the Job Seeker decides to introduce themselves for a job opening.
We each have responsibilities in maintaining a community that works for everyone; they are spelled out in detail below. At a very high level, here’s a snapshot:
We are responsible for
Protecting everyone’s privacy. Suffice it to say we take your privacy seriously. One of our most closely held beliefs is that the Job Seeker should always be in control of who sees their information, and who they choose to introduce themselves to.
Keeping the community safe. That means being on the lookout for people abusing the tools we make available, or otherwise violating our standards of business practice, and removing them from the community.
Continuously improving our tools and our algorithms. We have a lofty mission – to make life easier, better and more profitable for our clients, their candidates, and our community at large. To achieve that on a large scale, we need to be always tinkering, creating and testing, investing in new approaches that give people and organizations the tools to make better, more informed choices.
You are responsible for
All activity occurring under your accounts and are solely responsible for compliance with all applicable local, state, national and foreign laws, treaties and regulations relating to your use of the Site, including those related to the protection of intellectual property, data privacy, international communications and the transmission of technical or personal data.
Notifying Fit First immediately of any unauthorized use of any password or account or any other known or suspected breach of security or abuse of the system.
Telling the truth and not misrepresenting yourself. Ever. Whether you are an Employer or a Job Seeker, everyone loses when someone is hired (or accepts a position) on the basis of claims that simply aren’t so. Trust that the right fit is out there and let us help you find out what it is.
Intellectual Property Notice
©2015 Fit First Technologies International, Inc. All rights reserved, worldwide.
The features of our Site, and its arrangement and architecture, as well as the content, such as text, graphics, images, logos, button icons, software and other material including without limitation compilations, surveys, comparison reports or other data aggregation conducted on the Site (collectively, the “Content”), are protected under Canadian, United States, and international copyright, trademark and other laws. All Content is the property of Fit First, its content suppliers or clients. Unauthorized use of the Content may violate copyright, trademark, and other laws. You are prohibited from copying or adapting the HTML code that Fit First creates to generate the pages comprising the Site. This HTML code is also protected by copyright.
We claim no intellectual property rights over the material you provide to the Site. Your profile and materials uploaded remain yours.
Fit First does not pre-screen Content, but Fit First and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Site.
Fit First owns all data obtained through the TalentSorter Assessment. This includes the answers to the assessment given by candidates and users, as well as the calculated scores based on these answers.
Job Seekers can withdraw their candidacy from an employer at any time, but they can not remove their application once it is submitted. This is to allow us and our users to follow local, state and federal laws pertaining to the retention of hiring data.
We grant you a limited license to display on your computer, print, download and use the Content and materials that is made available to you on the Site, for your own non-commercial, personal, or education uses only, provided that you do not modify any content.
No other use is permitted. Without limiting the generality of the foregoing, you may not:
a. Make any commercial use of such Content;
b. Include such Content in or with any product that you create or distribute; or
c. Copy such Content onto your or any other website.
Notwithstanding the foregoing, to the extent that you are visiting the Site after becoming a Job Seeker or Employer member of our community, you may use them for your own business purposes, including the modification thereof, provided that you not resell them in any form and subject specifically to applicable provisions of the Terms and Conditions.
“TALENTSEEKER”, “TALENTSORTER”, and our logo on the website are the trademarks of FIT FIRST (the “Fit First Marks”). The names of all other companies, products and services mentioned on our website are the trademarks of their respective owners. The display of trademarks or trade names on this website does not convey or create any licence or other rights in these marks or names. Any unauthorized use of them is strictly prohibited.
While Fit First has made reasonable efforts to ensure that the materials contained on this Site are accurate, Fit First does not guarantee the Site will be available without interruption, errors or omission or that the Site and the servers(s) that make it available are free from viruses or other harmful components.
THE SITE AND THE CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. Fit First, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. Fit First MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE CONTENT, SERVICES, SOFTWARE, TEXT, GRAPHICS, AND LINKS.
IN NO EVENT SHALL Fit First, ITS DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, ITS SUPPLIERS, OR ANY THIRD PARTIES MENTIONED ON THE SITE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SITE AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Fit First IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF FIT FIRST HAS BEEN NEGLIGENT OR BOTH.
Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY LAW, FIT FIRST, ITS DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES ARISING OUT OF (A) THE USE OF OR INABILITY TO USE THE SITE OR THE SERVICES, (B) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SITE (C) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SITE OR THE SERVICES, (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR (E) ANY OTHER MATTER RELATING TO THE SITE OR THE SERVICES OFFERED ON THE SITE, EVEN IF Fit First Technologies HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF FIT FIRST HAS BEEN NEGLIGENT OR BOTH. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, FIT FIRST’S LIABILITY IS LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW, BUT SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO Fit First FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST Fit First SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
The Site may contain links to third party web sites. These links are provided solely as a convenience to you and not as an endorsement by Fit First of the contents on such third-party sites. Fit First is not responsible for the content of any linked third-party sites and does not make any representations or warranties, either express or implied regarding the content or accuracy of materials on such third party sites. If you decide to access linked third party sites, you do so at your own risk. It is your responsibility to check the Uniform Resource Locator (URL) address provided in your world wide web browser to see if you are still in a Fit First operated website or have moved to a third party website.
Certain areas of the Site may be subject to additional terms of service which you will be required to accept before accessing those areas, once you become a Job Seeker or Employer as those terms are defined in the additional terms of service.
Fit First makes no claim that the Site or the Content may be lawfully viewed or downloaded outside of the United States or Canada. Access to the Site or the Content may not be legal by certain persons or in certain countries. If you access the Site from outside of the United States or Canada, you do so at your own risk and are responsible for compliance with the laws of your applicable jurisdiction.
TERMS OF SERVICE
IMPORTANT – READ THESE Fit First TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH THE REGISTRATION PROCESS, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICES.
A. Agreement Definitions
B. Rights Granted
Upon Fit First’s acceptance of Your registration and for the duration of the Services term defined in the Registration Process, You have the non-exclusive, non-assignable, royalty-free, worldwide limited right to use the Services solely for Your internal business operations and subject to the terms of the Agreement. You may allow Your Users to use the Services for this purpose and You are responsible for Your Users’ compliance with the Agreement. The Services are provided as described in, and subject to, the Services policies referenced herein.
You acknowledge that Fit First has no delivery obligation and will not ship copies of the Programs to You as part of the Services. You agree that You do not acquire under the Agreement any license to use the Fit First programs specified in the Registration Process in excess of the scope and/or duration of the Services. Upon the end of the Agreement or the Services term thereunder, Your right to access or use the Fit First programs specified in the Registration Process and the Services shall terminate.
C. Ownership and Restrictions
You retain all ownership and intellectual property rights in and to Your Data. Fit First or its licensors retain all ownership and intellectual property rights to the Services and Fit First Programs. Fit First retains all ownership and intellectual property rights to anything developed and delivered under the Agreement.
Third party technology that may be appropriate or necessary for use with some Fit First Programs, if any, will be specified in the Program Documentation or Registration Process as applicable. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by Fit First and not under the Agreement.
You may not:
• Remove or modify any program markings or any notice of Fit First or its licensors’ proprietary rights;
• Make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the Services You have acquired);
• Modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to Fit First Technologies;
• Disclose results of any Services or program benchmark tests without Fit Firsts’ prior written consent; and
• License, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Fit First Programs or materials available, to any third party other than as expressly permitted under the terms of the Agreement.
As a Job Seeker, you are not permitted to allow others to complete the TalentSorter Assessment or components of your profile on your behalf. You warrant that it’s really you.
Employers, Job Seekers and Users alike are prohibited from providing false or inaccurate information; You warrant that all information provided is accurate and truthful to the best of Your knowledge.
The rights granted to You under the Agreement are also conditioned on the following:
• The rights of any User licensed to use the Services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized User, in which case the prior authorized User shall no longer have any right to access or use the license);
• Except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
• You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
D. Impermissible Acts
Fit First expects that all Users will access and use the Site and the Services in a respectful and responsible manner in accordance with applicable laws. Employers may use the Services to post jobs and attract candidates. Job Seekers may use the Services to communicate with Employers. Fit First welcomes your content, job postings, messages, remarks, ideas, commentary, reviews and other information communicated to Fit First and other Users through this Site and the Services (collectively, a “Submission”). Of course, you are prohibited from using a false e-mail address, from impersonating another person or entity, or otherwise misleading Fit First or others as to your identity when you are on the Site, using the Services or otherwise communicating with Fit First. Fit First may also refuse to grant you an ID or user name if such ID/user name is protected by trademark or other intellectual property laws or is unlawful or offensive, as determined by Fit First in our sole discretion.
As a condition to your use of this Site, you agree not to:
Upload, post, email, transmit or otherwise make available any information, materials or other content that is illegal, harmful, threatening, abusive, harassing, tortuous, homophobic, sexist, vulgar, libellous, defamatory, obscene, pornographic, offensive, invades another’s privacy, or promotes bigotry, racism, hatred for harm against any individual or group, including but not limited to any Submission which encourages conduct that would constitute a criminal offence, violate the laws of others or otherwise violates any applicable local, provincial, national or international laws, including harms minors in any way;
Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
Phish, collect, upload, post, email, transmit or otherwise make available any login data and/or passwords for other web sites, software or services;
Phish, collect, upload, post, email, transmit or otherwise make available credit card information or other forms of financial data used for collecting payments;
Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Site;
Upload, post, email, transmit or otherwise make available any information, materials or other content that infringes another’s rights, including any intellectual property rights, copyright, patent, trade-mark or other proprietary right of publicity or privacy; or that you do not have a right to transmit under any law or under contractual or fiduciary obligations;
Upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
Upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
Use any manual or automated software, devices, or other processes to “crawl,” “spider” or “screen scrape” any web pages contained in the Site;
Reverse engineer, decompile or disassemble any of the software used to provide the Site;
Reproduce, duplicate or copy or exploit any other portion of the Site, without the express written permission of Fit First;
Interfere with or disrupt the Site, or any servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site;
Obtain, collect, store or modify the personal information about other users;
Interfere with or disrupt the Site, the Services or servers or networks connected to the Site, including attempting to interfere with the access of any other user, host or network, including without limitation, overloading, initiating, propagating, participating, directing or attempting any “denial of service” attacks, “spamming”, “crashing”, or “mail-bombing” the Site or the Services or disobeying any requirements, procedures, policies or regulations of networks connected to the Site;
Access, via automated or manual means or processes, the Site or the Services for purposes of monitoring the Site’s or Services’ availability, performance or functionality for any competitive purpose;
Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Site or the Services;
Attempt to or actually override any security component included in or underlying the site;
Post or submit any inaccurate, false, misleading or incomplete information in any manner whatsoever, including résumés, biographical information or employment information;
Impersonate any person or entity or misrepresent yourself, your affiliation with any third party, or your entity/organization;
Modify, adapt or hack the Site or falsely imply that some other site is associated with the Site or Fit First; or
Use the Site for any illegal or unauthorized purpose. You must not, in the use of the Site, violate any laws in your jurisdiction (including but not limited to copyright laws).
Any breach of the above representations, covenants and warranties may result in termination of your use of the Site and the Services, and, if appropriate, referral to relevant law enforcement authorities. Fit First reserves the right, but has no obligation, to monitor Submissions. However, Fit First does reserve the right to delete, remove, refuse to display, or block any Submissions or material that in its sole opinion violates or is alleged to violate, any applicable laws or Fit First policies or otherwise considers being unacceptable.
Additionally, by submitting or entering any Submission to the Site, you hereby grant to Fit First a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, copy, bundle, market, adapt, transmit, arrange, sublicense, export, merge, transfer, loan, rent, lease, assign, share, outsource, host, make available to any person, display or otherwise use any Submission communicated to Fit First by you through this Site or the Services (including, without limitation, any ideas, concepts, inventions, know-how, techniques or any intellectual property contained therein) and to incorporate any Submission in other works in any form, media, or technology now known or later developed, including for advertising and promotion purposes, for any purpose, whatsoever, without any duty to account to you. In addition, you irrevocably waive all of your moral rights as author in respect of such Submission, however arising. Fit First will not be required to treat any Submission as confidential, and may use any Submission in its business without incurring any liability for royalties or any other consideration of any kind.
You further agree that Fit First may disclose your Submissions to a third party if Fit First believes that it is necessary to (A) protect the integrity of the Site; (B) protect the rights of Fit First; (C) comply with any court order or legal proceeding; (D) assert Fit First rights under these Terms; or (E) satisfy any claims regarding violations of third party rights.
E. Submissions by Employers
Employers and their Users will use this Site and the Services for lawful purposes only and represent and warrant that they will not use the Site or Services to post a job for any of the following:
Jobs that involve any illegal or quasi illegal activities; or
Any position which Fit First, at its sole discretion, determines to be inappropriate for the Site or the community.
F. Fair Use
Fit First reserves the right, at their sole discretion, to audit/limit the usage of the Site by the User when usage exceeds reasonable parameters as determined by Fit First. If/When usage does exceed reasonable parameters Fit First reserves the unilateral right to suspend and/or cancel subscriptions to limit usage of Users who abuse the use of the Service as determined by Fit First.
In the course of using the Site, you may provide Fit First with feedback, including but not limited to suggestions, observations, errors, problems, and defects regarding the Site (collectively “Feedback”). You hereby grant Fit First a worldwide, irrevocable, perpetual, royalty-free, transferable and sub-licensable, non-exclusive right to use, copy, modify, distribute, display, perform, create derivative works from and otherwise exploit all such Feedback. In doing so, Fit First will ensure that the confidentiality of the author of such Feedback remain intact and will not be disclosed without the author’s written consent.
H. No Warranties; Disclaimers
Fit First DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT Fit First WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT Fit First DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. Fit First IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. SERVICES ARE PROVIDED “AS IS”.
You understand and agree that we may amend, alter, suspend or discontinue any aspect of the Site or the Services at any time, including the availability of any Site or Services features, content, functionality or aspect in our sole discretion without notice to you.
TO THE EXTENT NOT PROHIBITED BY LAW, THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
I. Trial Use of the Services
If specified in the Registration Process, You may order certain Services for trial purposes subject to the terms and conditions of the Agreement. If you choose not to convert Your trial into a paid subscription at the end of Your trial period, Fit First will end Your access to the Service. Fit First may, at its sole discretion, extend Your access to the Services beyond Your cancellation of the Service on a case-by-case basis.
If a third party makes a claim against either You or Fit First (the “Recipient” which may refer to You or Fit First depending upon which party the claim was made against), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either You or Fit First (“Provider” which may refer to You or Fit First depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
• Notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
• Gives the Provider sole control of the defense and any settlement negotiations; and
• Gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects Fit Firsts’ ability to meet its obligations under the relevant subscription, then Fit First may, at its option and upon 30 days prior written notice, terminate the applicable subscription. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to You within or from the Services (e.g., a third party Web page accessed via a hyperlink). Notwithstanding the foregoing, Fit First will not indemnify You to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Fit First. Fit First will not indemnify You for infringement caused by Your actions against any third party if the Services as delivered to You and used in accordance with the terms of the Agreement would not otherwise infringe any third party intellectual property rights. Fit First will not indemnify You for any infringement claim that is based on: (1) a patent that You were made aware of prior to the effective date of the Agreement (pursuant to a claim, demand, or notice); or (2) Your actions prior to the effective date of the Agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
K. Support Services
Support services provided under the Agreement are specified in the Registration Process. Please see our Support page.
If You are not completely satisfied with the Services, You may cancel Your subscription at any time (“Termination Request”).
Monthly license fees are non-refundable. Your cancellation shall be effective as of the last day for which you have prepaid monthly license fees. Services provided under this Agreement shall be provided for the period defined in the Registration Process unless earlier terminated in accordance with the Agreement. The term of the Services and any renewal months are collectively defined as the “Services Term.” At the end of the Services Term, all rights to access or use the Services, including the Fit First Programs listed in the Registration Process, shall end.
If either party breaches a material term of the Agreement and fails to correct the breach within 30 days of written notice of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable Services under which the breach occurred. The non-breaching party may agree in its sole discretion to extend the 30-day period for so long as the breaching party continues reasonable efforts to cure the breach.
You agree that if You are in default under the Agreement, You may not use the Services ordered. In addition, Fit First may immediately suspend Your password, account, and access to or use of the Services (i) if You fail to pay Fit First as required under the Registration Process and do not cure within the first ten days of the 30 day cure period, or (ii) if You violate any provision within sections C, H, J, M or Q of the Agreement. Fit First may terminate the Services hereunder if any of the foregoing is not cured within 30 days after Fit First initial notice to You thereof. Any suspension by Fit First of the Services under this paragraph shall not excuse You from Your obligation to make payment(s) under the Agreement.
At Your request, and for a period of up to 60 days after the termination of Your subscription Fit First may permit You to access the Services solely to the extent necessary for You to retrieve a file of Your Data then in Your dashboard. You agree and acknowledge that Fit First has no obligation to retain Your Data and that Your Data may be irretrievably deleted within 6 months after the termination of Your Services.
Provisions that survive termination or expiration of the Agreement are those relating to limitation of liability, infringement indemnity, payment, and others, which by their nature are intended to survive.
M. Fees and Taxes
You agree to pay for all Services ordered as set forth in the Registration Process. All fees due under the Agreement are non-cancellable and the sums paid non-refundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Fit First must pay based on the Services You ordered, except for taxes based on Fit First income. You agree that You have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the Registration Process; however, the preceding does not relieve Fit First of its obligation to deliver Services that You have ordered per the terms of the Agreement.
N. Payment, Refunds, Upgrading and Downgrading
A valid credit card or other pre-paid method is required for paying accounts. Free accounts, which provide a limited access to the Service, are not required to provide a credit card number. The Fit First Site is billed in advance on a monthly basis in accordance with our pricing schedule and all payments are non-refundable. There will be no refunds or credits for partial months of Service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
You will be billed for your first month immediately upon signing up for a paying account. After signing up for a paying account and if you don’t cancel that account within 30 days, you will be billed monthly starting on the 30th day after your account was initially created. An upgrade from the free account to any paying account will end your free trial. You will be billed for your first month immediately upon upgrading. For any upgrade or downgrade in plan level, the credit card that you provided will automatically be charged the new rate each month.
O. Pay as you go plans are pre-paid and are non-refundable
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes. You agree to pay for any such taxes that might be applicable to your use of the Service and payments made by you herein.
You are solely responsible for properly cancelling your account. An email or phone request to cancel your account shall not result in cancellation. You can cancel your account at any time.
Cancellations will take effect at the end of a billing cycle. Upon the commencement of a new Service period the Service will terminate without additional notice, and you will not be charged for any subsequent Service periods. You will not be provided any refunds for unused time on your Service period.
By virtue of the Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under the Agreement. Confidential information shall be limited to the terms and pricing under the Agreement, Your Data residing in the Services environment, and all information clearly identified as confidential at the time of disclosure.
A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
Fit First will disclose confidential information only to those employees or agents as necessary, who are required to protect it against unauthorized disclosure in a manner no less protective than under the Agreement. Fit First will protect the confidentiality of Your Data residing in the Services environment in accordance with the Fit First security practices. Nothing shall prevent either party from disclosing the terms or pricing under the Agreement in any legal proceeding arising from or in connection with the Agreement or from disclosing the confidential information to a governmental entity as required by law.
R. Limitation of Liability
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. Fit Firsts’ MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR YOUR SUBSCRIPTION, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO Fit First FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST Fit First SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export control laws govern Your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
Fit First may audit Your use of the Services by way of remote monitoring. You agree to cooperate with Fit First audits and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You agree to pay within 30 days of written notification any fees applicable to Your use of the Services in excess of Your rights. If You do not pay, Fit First can end Your Services and/or the Agreement. You agree that Fit First shall not be responsible for any of Your costs incurred in cooperating with the audit.
U. Your Data
You agree to provide any notices and obtain any consents related to Your use of the Services and Fit Firsts’ provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your Data.
V. Removing an Individual’s account in the event of their death
Verified immediate family members are invited to request the removal of a loved one’s account from Fit Firsts’ sites.
We will process certain special requests for verified immediate family members, including requests to remove their loved one’s account. This will completely remove their Profile and visible information about them, so no one can view it.
For all special requests, we require verification that you are an immediate family member or executor. Requests will not be processed if we are unable to verify your relationship to the deceased person.
Examples of documentation that we will accept include:
The deceased person’s death certificate;
Proof of authority under local law that you are the lawful representative of the deceased person, or his/her estate.
If you are an immediate family member and would like to request that we remove your loved one’s account from the site, please contact us.
W. Restrictions on Use of the Services
You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (A) menace or harass any person or cause damage or injury to any person or property, (B) involve the publication of any material that is false, defamatory, harassing or obscene, (C) violate privacy rights or promote bigotry, racism, hatred or harm, (D) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (E) constitute an infringement of intellectual property or other proprietary rights, or (F) otherwise violate applicable laws, ordinances or regulations.
In addition to any other rights afforded to Fit First under the Agreement, Fit First reserves the right to remove or disable access to any material that violates the foregoing restrictions. Fit First shall have no liability to You in the event that Fit First takes such action.
X. Release and Indemnity
You agree to release, indemnify and hold harmless Fit First, its directors, officers, agents and employees and such other additional persons to be released and/or indemnified (“Releasees”) from all liability in any way relating to or arising out of a violation of Your use of our Site including injuries, loss or damage of any kind. You acknowledge and agree that the Releasees have not made, and are not liable for, any representation, warranty or condition in respect of our Site.
Y. Statistical Information
Fit First may compile statistical information related to the performance of the Services, and may make such information publicly available in an anonymized, aggregated form, provided that such information does not incorporate Your Data and/or identify Your confidential information or include Your company’s name. Fit First retains all intellectual property rights in such statistical information.
Z. Third Party Web Sites, Content, Products and Services
The Services may enable You to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Fit First is not responsible for any third party Web sites or third party content provided on or through the Services and You bear all risks associated with the access and use of such Web sites and third party content, products and services. It is Your responsibility to check the Uniform Resource Locator (URL) address provided in you world wide web browser to see if you are still in a Fit First operated website or have moved to a third party website.
AA. Force Majeure
Neither of us shall 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 (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed Services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for the Services.
If You have a dispute with Fit First or if You wish to provide a notice under the Indemnification section of these Terms of Service or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to: Fit First Technologies Inc., 1200 Tower Road, Suite 102, Halifax, Nova Scotia, CANADA B3H 4K6, Attention: General Counsel, Legal Department; Phone: 1-800-513-7277, Fax: 1-902-423-3412. Fit First may give notice applicable to Fit First customer base by means of a general notice on the Site’s user dashboard for the Services, and notices specific to You by electronic mail to Your e-mail address on record in Fit Firsts’ account information or by written communication sent by first class mail or pre-paid post to Your address on record in Fit Firsts’ account information.
You may not assign the Agreement or give or transfer the Services or an interest in them to another individual or entity.
CC. Limitation of Action
Except for actions for non-payment or breach of Fit Firsts’ proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.
DD. Entire Agreement
You agree that the Agreement (including the information which is incorporated into the Agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the Services ordered by You, and that the Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services.
If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Agreement. It is expressly agreed that the terms of the Agreement, shall supersede the terms in any purchase order or other non- Fit First document and no terms included in any such purchase order or other non- Fit First document shall apply to the Services ordered.
The Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online by authorized representatives of You and of Fit First.
Fit First is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
You shall obtain at Your sole expense any rights and consents from third parties necessary for Fit First and its subcontractors to perform the Services under the Agreement.
Effective January 1, 2015