These Quantitative Assessment Terms of Service (the “Terms of Service”) form an agreement between Kira Talent Inc. (“Kira”) and the person visiting, browsing, accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Quantitative Assessment Services (such person, the “Candidate”, “you” or “your”, as applicable, and together with Kira, the “Parties”). These Terms of Service govern your use of certain services related to scheduling and administering proctored diagnostic assessments, and delivering the scores obtained on such assessments, to support your applications to educational institutions (each, an “Institution”), which services are made available through Kira’s platform (the “Platform”, and collectively with the foregoing services, the “Quantitative Assessment Services”). To the extent permitted by applicable laws, Kira may update or change these Terms of Service from time to time in its sole discretion. Such amendments will become effective as of the date posted on the Website (as defined below). Your continued use of the Quantitative Assessment Services after a change to these Terms of Service will be deemed to constitute your acceptance of the revised Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE QUANTITATIVE ASSESSMENT SERVICES.
BY INDICATING AGREEMENT OR OTHERWISE USING THE QUANTITATIVE ASSESSMENT SERVICES, YOU REPRESENT AND WARRANT TO KIRA THAT YOU ARE 16 YEARS OF AGE OR OLDER, HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THESE TERMS OF SERVICE, OR YOU ARE OF THE LEGAL AGE REQUIRED TO FORM A BINDING CONTRACT IN YOUR JURISDICTION IF THAT AGE IS GREATER THAN 16 AND YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU ARE NOT OF THE LEGAL AGE REQUIRED TO FORM A BINDING CONTRACT IN YOUR JURISDICTION, YOU REPRESENT AND WARRANT TO KIRA THAT YOU HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT TO ENTER INTO THESE TERMS OF SERVICE. IF YOU ARE AGREEING TO THESE TERMS OF SERVICE ON BEHALF OF ANOTHER PERSON, THEN YOU REPRESENT AND WARRANT TO KIRA THAT YOU HAVE THE AUTHORITY TO BIND THAT PERSON TO THESE TERMS OF SERVICE.
IF YOU DO NOT AGREE TO BE BOUND BY ANY PART OF THESE TERMS OF SERVICE, YOU ARE NOT PERMITTED TO USE THE QUANTITATIVE ASSESSMENT SERVICES AND MUST CEASE ANY USE OF THE QUANTITATIVE ASSESSMENT SERVICES IMMEDIATELY.
2. QUANTITATIVE ASSESSMENT SERVICES
The Quantitative Assessment Services enable candidates to register for and take a proctored diagnostic assessment that produces diagnostic scores that can be shared with one or more Institutions through the Platform. Subject to your compliance with these Terms of Service, including payment of the Fees (as defined below), Kira will make the Quantitative Assessment Services available to you on the terms and conditions set out herein. By using the Quantitative Assessment Services, you acknowledge and agree that Kira may, in its discretion, verify your identity and monitor you while you are taking proctored diagnostic assessments (e.g., through access to your computer camera, microphone, or through your keystrokes).
3. ACCESS TO CANDIDATE DATA
4. CANDIDATE WARRANTY
You are solely responsible for the Candidate Data. You represent and warrant to Kira that: (a) the Candidate Data does not contain content that impersonates a third party or is unlawful, obscene, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, or invasive of a third party’s privacy; (b) the Candidate Data does not infringe, violate, or misappropriate any third party rights, including intellectual property rights; and (c) you have all necessary rights and consents required for you to use the Candidate Data and to grant the rights to the Candidate Data contemplated in these Terms of Service.
5. ACCEPTABLE USE
You agree, represent, and warrant that you will not: (a) engage in any activity that degrades the Quantitative Assessment Services (including for other users); (b) compromise, test, or attempt to compromise the security or integrity of the Quantitative Assessment Services, or attempt to reverse engineer, modify, adapt, translate, or copy the Quantitative Assessment Services or any part thereof; (c) breach any applicable laws, rules or regulations, or infringe upon any third party’s intellectual property rights or other rights (including rights of privacy and publicity); (d) except as otherwise permitted herein, copy, reproduce, publish, display, disclose, sell, rent, lease, modify, store, loan, distribute, or create derivative works of the Quantitative Assessment Services or any part thereof; (e) remove or obscure any proprietary notices or labels on the Quantitative Assessment Services, including brand, copyright, trademark and patent or patent pending notices; (f) use the Quantitative Assessment Services to permit timesharing, service bureau use or commercially exploit the Quantitative Assessment Services; (g) use the Quantitative Assessment Services, or any part thereof: (i) on behalf of, or for the benefit of, any other person; (ii) to create any software, components, designs or tools, including for the purpose of emulating the Quantitative Assessment Services or enabling the replacement of the Quantitative Assessment Services; or (iii) in competition with Kira in any way; or (h) engage in any prohibited behaviour when taking a proctored diagnostic assessment, including allowing anyone else to take a proctored diagnostic assessment on your behalf. You will not cause, assist or permit any third party to do any of the foregoing. If you breach any of the foregoing, or any other provision of these Terms of Service, Kira may take whatever steps it deems necessary to protect the Quantitative Assessment Services or Kira’s business and other clients, including suspending your access to the Quantitative Assessment Services (or any part thereof) and terminating these Terms of Service.
6. LINKS TO THIRD PARTY SITES
Your use of the Quantitative Assessment Services will be accessed through an account requiring a username or email and password that you will create (the “Credentials”). Your Credentials are solely for your use. You are responsible for maintaining the confidentiality of the Credentials and you are responsible for all activities that occur under the Credentials. Accordingly, please take adequate precautions with the Credentials and immediately notify Kira of any unauthorized use of the Credentials.
You agree to pay to Kira the applicable fees presented to you at checkout for each diagnostic assessment (the “Fees”) in accordance with the payment terms set out therein. All Fees are payable in advance. All references to currency are in the local currency in your jurisdiction, unless otherwise indicated. The Fees do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. You will be responsible for and pay all applicable taxes, duties, tariffs, assessments, or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with these Terms of Service, other than taxes based on the net income or profits of Kira.
The term of these Terms of Service will commence on the earliest date that you first use or otherwise register for the Quantitative Assessment Services (which includes the first time you visit the website located at www.kiratalent.com/checkpoint (the “Website”)), and will continue in full effect until termination of these Terms of Service in accordance with their terms.
11. TERMINATION AND SUSPENSION
These Terms of Service will automatically terminate without notice and without further obligation to you if you fail to comply with any terms herein. Additionally, Kira may terminate these Terms of Service or suspend your access to or use of the Quantitative Assessment Services at Kira’s convenience and without any notice or obligation to you. Upon any such termination, you are required to immediately stop using the Quantitative Assessment Services.
You agree to defend, indemnify and hold Kira harmless from and against any damages, losses, penalties, liabilities, costs, claims, allegations, actions, or demands in connection with: (a) your use of the Quantitative Assessment Services; (b) your breach of these Terms of Service or any applicable laws; (c) your fraud, negligence, or willful misconduct; (d) any Candidate Data; or (e) any disputes between you and any Institution.
13. EXCLUSION OF WARRANTIES
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES. A PORTION OR ALL OF THE FOLLOWING EXCLUSIONS OR LIMITATIONS MAY THEREFORE NOT APPLY TO YOU. To the fullest extent permitted by applicable law, the Quantitative Assessment Services are provided “as-is”, “with all faults” and “as available”, in each case, without any representations, warranties, conditions, or guarantees of any kind. Kira hereby disclaims all representations, warranties, conditions, and guarantees with respect to the Quantitative Assessment Services, whether express or implied, oral or written, legal or statutory, or arising from course of dealing or usage of trade, including with respect to merchantability, merchantable quality, quality or fitness for a particular purpose, non-infringement, availability, accuracy, completeness, usefulness or reliability. Kira provides no warranty that the Quantitative Assessment Services will meet your requirements or that their operation or provision will be uninterrupted or free of errors, vulnerabilities, viruses/malware or other harmful conditions or components. Kira provides no warranty that any defects in the Quantitative Assessment Services can or will be corrected.
14. LIMITATION OF LIABILITY
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. A PORTION OR ALL OF THE FOLLOWING LIMITATIONS MAY THEREFORE NOT APPLY TO YOU. To the fullest extent permitted by applicable law, under no circumstances will Kira be liable to you for any direct or indirect losses or damages arising out of or in connection with loss of data (including Candidate Data), a third party’s or your use of or inability to use the Quantitative Assessment Services, including a third party’s or your reliance on the Quantitative Assessment Services or Candidate Data. This is a comprehensive limitation of liability that applies to all losses and damages of any kind (including direct, indirect, incidental, consequential, special, punitive, and exemplary damages, loss of revenue, loss of income, loss of profit, loss of data, and loss of opportunity), whether in contract, strict liability, negligence or other tortious action, even if Kira or its authorized representatives have been advised of, should have known of, or have express knowledge of the possibility of such damages. To the fullest extent permitted by applicable law, if you are dissatisfied with the Quantitative Assessment Services or with these Terms of Service, your sole and exclusive remedy is to discontinue use of the Quantitative Assessment Services immediately. If any part of the limitations or exclusions of liability in these Terms of Service is found to be invalid or unenforceable for any reason, then, to the fullest extent permitted by applicable law, Kira’s liability will not exceed the lesser of: (a) the Fees paid by you; and (ii) $100. You acknowledge that the forgoing limitations and exclusions of liability are reasonable in the commercial circumstances contemplated herein and that Kira has relied on such limitations and exclusions in entering into these Terms of Service.
Without limiting the restrictions on use in Section 5 above, the Quantitative Assessment Services, including the contents of any proctored diagnostic assessment, and any other information that is made available to you pursuant to your use of the Quantitative Assessment Services or otherwise in relation to these Terms of Service that is marked as confidential or would reasonably be considered to be confidential, may not be reproduced, provided or disclosed to others, or used for any purpose other than as expressly permitted herein without written authorization from Kira.
16. NO RESPONSIBILITY FOR INSTITUTIONS
Kira is not responsible for any actions taken by any Institution as a result of your use of the Quantitative Assessment Services.
All ownership of, and all right, title and interest (including intellectual property rights) in and to, the Quantitative Assessment Services, anything generated through the use of the Quantitative Assessment Services, anything else provided by or on behalf of Kira pursuant to these Terms of Service, and any modifications of and additions to any of the foregoing, will at all times remain exclusively with Kira or any third party from or to whom Kira has licensed or procured software, technology or other elements. You may provide Kira with suggestions, comments, or other feedback with respect to the Quantitative Assessment Services (“Feedback”). Even if Feedback is designated as confidential, it will not create any confidentiality obligation for Kira. Upon disclosing such Feedback, you grant to Kira a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose, including for the purpose of improving the Quantitative Assessment Services.
You may not assign these Terms of Service without Kira’s prior written consent. Kira may assign these Terms of Service at its discretion at any time and without notice to you.
Those provisions that expressly, or by their nature are intended to, survive termination, will survive any termination or expiration of these Terms of Service.
All notices to be given under these Terms of Service: (a) if to Kira, must be in writing and sent to Attn: Legal Department, Kira Talent Inc., 99 Yorkville Avenue, Toronto, Ontario, M5R 1C1; and (b) if to you, will be sent by email to the email address that you provided to Kira when you registered for the Quantitative Assessment Services (or any other email address should you have updated your account to reflect such other email address).
21. WAIVER AND LIMITATION
The waiver by either Party of any default or breach of any term of these Terms of Service will not constitute a waiver of any other or subsequent default or breach. No failure or delay by Kira in exercising any right, power or remedy under these Terms of Service will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise of any right, power or remedy by Kira under these Terms of Service. All waivers by Kira must be in writing and signed by an authorized representative. To the fullest extent permitted by applicable law, no action, regardless of form, arising out of these Terms of Service may be brought against Kira more than one year after the cause of action has accrued.
If any provision of these Terms of Service is determined to be unenforceable, invalid or in breach of any law by any tribunal, public body or court of competent jurisdiction for any reason whatsoever, the unenforceability or invalidity of such provision will not affect the enforceability or validity of the remaining provisions of these Terms of Service and such unenforceable or invalid provision will be severed from the remainder of these Terms of Service, and these Terms of Service will continue in full force and effect as so modified.
23. GOVERNING LAW & JURISDICTION
To the extent permitted by applicable law, these Terms of Service will be governed by and interpreted in accordance with the laws of the Province of Ontario, without reference to conflict of laws provisions or principles, and the federal laws of Canada applicable therein. To the fullest extent permitted by applicable law, each Party irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Ontario located in Toronto, Ontario.
The Parties hereto have expressly requested that these Terms of Service and all ancillary documents be drafted in English. Les parties aux présentes ont expressément requis que la présente entente et tous les documents y afférents soient rédigés en langue anglaise.
25. ENTIRE AGREEMENT
These Terms of Service constitute the complete agreement between the Parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of these Terms of Service.
Last Revised: July 8, 2022