MyQuest Ltd. ("MyQuest" or, "us", "our", "we") provides a platform for companies ("Client(s)") to train and coach their employees and customers. Our Clients can use the MyQuest website ("Site") and/or proprietary mobile application ("App") to create interactive "Quests" that can be accessed and used by their employees or customers ("Participants"). The Terms of Service ("Terms") govern your access to and use of the Site, App, Quests, services provided therein ("Services"), and any Content (defined below) as either an individual using the Services on behalf of a Client or as a Participant. "You" means any adult user of the Site, App, and/or Services (as either on behalf of a Client or a Participant) on behalf of an entity, individual or yourself or any parent or guardian of any minor whom you allow to use the Site, App, and/or Services, and for whom you will be held strictly responsible.
Please read these Terms carefully. By clicking on the button marked "I agree" you signify your assent to these Terms, and, if you are a Client, to our DPA (defined below). Our Privacy Notice, which is available at https://www.myquest.co/connect/legal/myquest-privacy-notice ("Privacy Notice") governs our collection, processing, and transfer of any Personal Data (as defined in the Privacy Notice) of Clients and visitors to our Site. Changes may be made to these Terms from time to time. Your continued use of the Site, App, and/or Services will be deemed acceptance to amended or updated terms. If you do not agree to any of these Terms, please do not use the Site, App, or Services.
If you the event of a conflict between a Services Agreement and/or SOW that you have executed with us separately prior to entering into these Terms, the provisions of such Services Agreement and/or SOW, as applicable, shall prevail.
If you are registering on behalf of a Client, you represent that you are authorized to enter into and bind the Client to these Terms and register for the Services, including registration for Quests, if applicable. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules, and regulations applicable to you and the Client and the right to access the Site, App, and Services is revoked where these Terms or such use is prohibited.
If you are a Client:
When we process information of your end users on your behalf for the purpose of these Terms and the provision of the Services, you will at all times be considered the data Controller (as defined in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 ("GDPR")) and we shall act solely as a data Processor (as defined in the GDPR) on your behalf, all in accordance with the Data Processing Agreement attached hereto as Exhibit A and available at https://app.myquest.co/legal/myQuestDPA.html ("DPA"). You are responsible for compliance with your obligations as data Controller under applicable law including any applicable data protection laws and the GDPR.
You further represent and warrant that you have: (i) notified the Participants of the collection and processing of their Personal Data, including by MyQuest in accordance with its Privacy Notice, all in accordance with applicable law; (ii) have and shall maintain throughout the term of these Terms and the DPA all necessary rights and consents required under applicable law in order to provide Personal Data to MyQuest and allow it to provide its services as a Processor and you shall ensure that a record of such consents is maintained.
If you are a Participant:
Please note that while myQuest serves as the platform for Quests, each individual Quest is created and managed by a particular Client. Each Quest may therefore be subject to additional terms and conditions as determined by the applicable Client. We will process any Personal Data you provide in accordance with the instructions of the applicable Client, who serves as the data Controller of such Personal Data. Please contact the applicable Client for more information about its privacy practices.
By using the Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older, have your parent's or guardian's permission to enter into these Terms, or otherwise have the ability to form a binding contract; and (d) your use of the Site, App, or Services does not violate any applicable law or regulation or any obligation you may have to a third party.
Account Registration :
To create an account, you must provide information as may be requested by MyQuest. We may allow you to register through third party login services, such as Facebook. If you choose to login or register through such third-party service, you agree to the terms and conditions of all such third-party services. You acknowledge that the use of third party services to login or register for the Site, App, or Services may provide us with access to certain information and data that you have provided to such third party service (according to the terms and conditions of such third party service) and you expressly agree to our use of such data or information in accordance with these Terms and Privacy Notice.
MyQuest reserves the right to refuse to allow a user, whether a Client or a Participant, to open an account for any reason, or to limit the number of accounts a user can establish, all at its sole discretion.
You agree to notify MyQuest immediately of any unauthorized use of your MyQuest account or password. You are fully and solely responsible for the security of your computer system and all activity on your account, even if such activities were not committed by you. MyQuest will not be liable for any losses or damage arising from unauthorized use of your account or password, and you agree to indemnify and hold MyQuest harmless for any improper or illegal use of your account, including any mail sent and any charges and taxes incurred, unless you have notified us via e-mail to email@example.com that your account has been compromised and have requested that we block access to it. We do not police for and cannot guarantee that we will learn of or prevent any inappropriate use of the Site, App, and/or Services.
Termination of Account :
MyQuest may terminate your account for one of the following reasons: (i) violation of the letter or spirit of these Terms; (ii) fraudulent, harassing or abusive behavior; (iii) behavior that is harmful to other users or to the business interests of MyQuest; or (iv) failure to make payment in accordance with the terms specified herein. If your account is terminated, you may not rejoin MyQuest again without our express permission. Upon termination of your account, you shall not have any further access to any Content that may be available through your account. In the event of termination, MyQuest shall refund to you all amounts you have paid in respect of Services that you have not received up to the effective date of the termination of your account.
If we believe, at our sole discretion, that a violation of these Terms or any illegal or inappropriate behavior has occurred, we may take any other corrective action we deem appropriate. We reserve the right to investigate suspected violations of these Terms or illegal and inappropriate behavior on the Site, App, and/or Services. We will fully cooperate with any law enforcement investigation or court order requesting or directing us to disclose the identity, behavior or Content of anyone believed to have violated these Terms or to have engaged in illegal behavior. Any suspension or termination of your account shall not affect your obligations under these Terms (including but not limited to ownership, indemnification, any representations and warranties made by you, and limitation of liability), which by their sense and context are intended to survive such suspension or termination.
Certain types of content may be made available through the Site, App or the Services. "Content" as used in these Terms means, collectively, all content on or made available on the Site, App, or through the Services, including any photos, pictures, videos, slideshows, mashups, music and comments, and any modifications or derivatives of the foregoing.
The Site, App, and/or Services may allow you to post certain content or to communicate with other users of the Site, App, and/or Services. All content and communications by users is referred to as "User Content." You are fully and solely responsible for any User Content you submit, post or communicate through the Site, App, and/or Services. You represent and warrant that any such User Content complies with all applicable law, that you have all necessary rights to submit any such User Content through the Site, App, and Services, and that no such User Content infringes or violates any third-party intellectual property rights, privacy or publicity rights, or moral rights. MyQuest has no obligation to accept, display, review or maintain any User Content. Moreover, MyQuest reserves the right to remove and permanently delete any Content, including any User Content submitted or modified by any user, without notice and for any reason. WE DO NOT ENDORSE ANY CONTENT (INCLUDING WITHOUT LIMITATION ANY USER CONTENT) OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED IN ANY CONTENT, AND WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH CONTENT.
MyQuest may choose at its sole discretion to monitor User Content for inappropriate or illegal behavior, including through automatic means, provided, however, that MyQuest reserves the right to treat User Content as content stored at the direction of users for which MyQuest will not exercise editorial control except when violations are directly brought to MyQuest’s attention. MyQuest has the right to edit, delete, distort, modify or move User Content from the Site, App, or Services without notice for any reason at any time. Additionally, MyQuest has the right to refuse to transmit, email, post or broadcast any User Content (including the right to refuse to allow a user to post or distribute such User Content through a third party) without notice for any reason at any time.
Content on the Site, App, and/or Services comes from a variety of sources. You understand that MyQuest is not responsible for the accuracy, usefulness, safety, appropriateness of, or infringement of any intellectual property rights of or relating to this Content (including but not limited to the User Content). Although users must agree to these Terms, it is possible that other users (including unauthorized users) may post or transmit offensive or obscene materials that you may be involuntarily exposed to such offensive or obscene materials, and you hereby agree to waive, and do waive, any legal or equitable rights or remedies you have or may have against us with respect to thereto. It also may be possible for others to obtain personal information about you due to your use of the Site, App, or Services, including through any User Content that you make available through your account. Anyone receiving or viewing User Content may use your information you provided through such User Content (such as your contact details, location or description of an entity you represent) for purposes other than what you intended. We are not responsible for the use of any personal information that you disclose on the Site, App or Services, or through any User Content. By making any information (including your contact details, location or description of materials) available through the Site, App, or Services you acknowledge that you understand and have agreed to such risks. WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF THE SERVICE OR OTHERWISE.
Without limiting the foregoing, you agree that you will not transmit, submit or post any User Content that: (1) restricts or inhibits use of the Site, App, and/or Services; (2) solicits another person's password or other Personal Data under false pretenses; (3) impersonates another user or otherwise misrepresents yourself in any manner; (4) violates the legal rights of others, including defaming, abuse, stalking or threatening users; (5) infringes (or results in the infringement of) the intellectual property rights, moral, publicity, privacy or other rights of any third party; (6) is (or you reasonably believe or should reasonably believe to be) illegal, fraudulent, or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or you reasonably believe or should reasonably believe to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material; (7) does not comply with all applicable laws, rules and regulations; (8) publishes falsehoods or misrepresentations that may damage us or any third party; (9) involves gambling activities, or the payment or acceptance of payments relating to gambling activities; (10) imposes an unreasonably or disproportionately large load on our infrastructure; or (11) posts, stores, transmits, offers, or solicits anything that contains the following, or that you know contains links to the following or to locations that in turn contain links to the following: (a) material that we determine to be offensive (including material promoting or glorifying hate, violence, bigotry, or any entity (past or present) principally dedicated to such causes or items associated with such an entity), (b) material that is racially or ethnically insensitive, material that is defamatory, harassing or threatening, (c) pornography or obscene material and anything depicting children in sexually suggestive situations whether or not depicting actual children or may be harmful to a minor, (d) any virus, worm, trojan horse, or other harmful or disruptive component or (e) anything that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or regulation or is otherwise inappropriate or offensive.
You may not and may not allow any third party to do or attempt to do any of the following: (1) attempt to decipher, decompile, disassemble, or reverse-engineer any of the software and/or code, if and as applicable, used to provide the Site, App, or Services without our prior written authorization, including framing or mirroring any part of the Site, App, and/or Services; (2) circumvent, disable, or otherwise interfere with security-related features of the Services or the Site, App, or features that prevent or restrict use or copying of any Content; (3) use the Site, Content or Services in connection with any commercial endeavors in any manner, except for the purposes specifically set forth in these Terms; (4) use any robot, spider, site search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Site, App, and/or Services; (5) use or access another user’s account or password without permission; (6) use the Site, App, Services, or Content thereon in any manner not permitted by these Terms, or (7) post, distribute or edit any Content or links in violation of the requests or wishes of the individual that provided you with such Content or links.
Content on the Site, including User Content, is either owned by MyQuest or has been licensed to MyQuest by Users for use in connection with the provision of the Services (see below). MyQuest owns the Site and Services, including all worldwide intellectual property rights and the trademarks, service marks, and logos contained therein, registered and unregistered. Except as expressly permitted herein, you may not copy, further develop, reproduce, republish, modify, alter download, post, broadcast, transmit or otherwise use the Site, App, Content, or Services. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Site, App, Content, or Services. All trademarks are trademarks or registered trademarks of their respective owners. Nothing in these Terms grants you any right to use any trademark, service mark, logo, or trade name of MyQuest or any third party.
You and/or the Client, as applicable own/s its User Content made available by you and/or Client, as applicable, on the Site and/or App including all worldwide intellectual property rights in such User Content, and the trademarks, service marks, and logos contained therein, registered and unregistered.
By submitting or posting any User Content, you grant MyQuest and its successors a worldwide, non-exclusive, royalty-free, sublicensable and transferable license under any of your intellectual property, moral, or privacy rights, to use, copy, distribute, transmit, modify, prepare derivative works of, publicly display, alter and decompile such User Content solely for the purpose of provision of the Services to you and/or Client in accordance with these Terms.
The policy of MyQuest is not to infringe or violate the intellectual property rights or other rights of any third party, and MyQuest will remove material appearing on the Site, App, and/or Services that infringes the rights of any third party. Under the Digital Millennium Copyright Act of 1998 (the "DMCA"), MyQuest will remove any Content (including without limitation any User Content) if properly notified of that such material infringes third party rights, and may do so at its sole discretion, without prior notice to users at any time. The policy of MyQuest is to terminate the accounts of repeat infringers in appropriate circumstances.
You are in the best position to judge whether User Content is in violation of intellectual property or personal rights of any third-party. You accept full responsibility for avoiding infringement of the intellectual property or personal rights of others in connection with User Content. MyQuest will remove any Content (including without limitation any User Content) if properly notified that such material infringes third-party rights, and may do so at its sole discretion, without prior notice to users at any time. If you believe that something appearing on the Site, App, or Services infringes your copyright, you may send us a notice requesting that it be removed, or access to it blocked. If you believe that such a notice has been wrongly filed against you, the DMCA lets you send us a counter-notice. Notices and counter-notices must meet the DMCA’s requirements. We suggest that you consult your legal advisor before filing a notice or counter-notice. Be aware that there can be substantial penalties for false claims. Send notices and counter-notices to us by contacting firstname.lastname@example.org.
Disclaimers & Disclaimer of Warranty
Your use of the Site, App, Content and Services is at your sole discretion and risk. The Site, App, Content (including User Content) and Services are provided on an AS IS and AS AVAILABLE basis without warranties of any kind. While we make reasonable efforts to have Content that is informative and useful, we do not make any warranties or representations in respect of any Content. We do not represent or warrant that you will find any Content to be informative or useful for your own needs.
WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SITE, CONTENT (INCLUDING USER CONTENT), AND SERVICES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE. WE DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SITE, CONTENT AND SERVICES; OR (II) THAT THE SITE, APP, AND SERVICES WILL BE ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (III) REGARDING THE PERFORMANCE OF OR ACCURACY, QUALITY, CURRENCY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED BY THE SITE, APP, AND/OR SERVICES.
We are not responsible for any incorrect or inaccurate Content posted on the Site, App, or in connection with the Services, or transmitted by any user, whether Clients or Participants, or by any of the equipment or programming associated with the Services. We take no responsibility for third party advertisements which are posted on this Site, App, or through the Services, nor do we take any responsibility for the goods or services provided by our advertisers. No advice or information, whether oral or written, obtained by you from us, shall create any warranty not expressly stated in these Terms. If you choose to rely on such information, you do so solely at your own risk. Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
Limitation of Liability
We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any Content or Services. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email due to technical problems or traffic congestion on the Internet or on any of the Site, App, or Services or combination thereof, including any injury or damage to users or to any person's computer related to or resulting from participation or downloading materials in connection with the Site, App, or Services. Under no circumstances shall we be responsible for any loss or damage, including personal injury or death, resulting from use of the Site, App, or Services, from any Content posted on or through the Site, App, or Services, or from the conduct of any Users of the Site, App, or Services, whether online or offline.
IN NO EVENT SHALL WE OR ANY OF OUR OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, CONTENT AND SERVICES, INCLUDING BUT NOT LIMITED TO THE QUALITY, ACCURACY, OR UTILITY OF THE INFORMATION PROVIDED AS PART OF OR THROUGH THE SITE, APP, OR THE SERVICES, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU EXCEED THE AMOUNT YOU HAVE PAID US IN THE TWELVE MONTHS PRECEDING THE APPLICABLE CLAIM. IF YOU HAVE NOT MADE ANY PAYMENTS TO MYQUEST FOR THE USE OF THE SITE, APP, OR SERVICES, THEN MYQUEST SHALL NOT HAVE ANY LIABILITY TOWARD YOU.
You agree to indemnify, defend, and hold harmless MyQuest and our employees, directors, officers, subcontractors and agents of each, against any and all claims, damages, or costs or expenses (including attorneys’ fees) that arise directly or indirectly from: (a) breach of these Terms by you or anyone using your computer or password; (b) any claim, loss or damage experienced from your use or attempted use of the Site, App, or the Services, including any message or Content you transmit through the Site, App, or Services; (c) your violation of any law or regulation; (d) your infringement of any right of any third party; and (e) any other matter for which you are responsible hereunder or under law.
Third Party Content
Portions of the Site, App, and/or Services (including, without limitation, advertisements) may involve linking to or using web sites belonging to third parties. The Site, App, and/or Services may also provide you with links to access the sites of third-party vendors or retailers including, without limitation, for the purpose of reviewing or purchasing items. We have no control over third-party sites, and all use of third-party sites is at your own risk. Additionally, MyQuest cannot accept responsibility for any payments processed or submitted through such third-party sites, or for the privacy practices of any such sites. MyQuest is not responsible for content or services available by means of such sites. MyQuest does not endorse any products or services offered by third parties and we urge our users to exercise caution in using third-party sites.
This provision only applies in respect of the version of the Application used on devices of Apple, Inc. This Agreement is an agreement between you and MyQuest. Apple has no responsibility for the Application or the content of the Application, including in respect of claims of intellectual property infringement, product liability or that the Application does not conform with applicable law. To the maximum extent permitted by applicable law, Apple provides no warranty in respect of the Application and has no obligation to provide support in respect of the Application. All claims in respect of the Application must be directed to MyQuest and not to Apple. Your use of the Application must be in compliance with the App Store Terms of Service, and you may only use the Application on an iPhone that you own or control as permitted by such terms. In the event the Application fails to conform to the warranty set forth herein, you may notify Apple, and Apple will refund the purchase price for the Application to you. Apple shall be a third-party beneficiary of this Agreement with the right to enforce this Agreement against you.
You and MyQuest agree that, except as provided below, all disputes, controversies and claims related to these Terms (each a "Claim"), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in these Terms. The arbitration will be conducted in New York, NY unless the parties agree to video, phone and/or internet connection appearances. In the event of a conflict between the terms set forth herein and the JAMS Rules, the terms herein will control and prevail.
Except as otherwise set forth herein, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and MyQuest will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (a) you and MyQuest may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
You and MyQuest agree that any arbitration shall be limited to the Claim between MyQuest and you individually. YOU AND MYQUEST AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
You and MyQuest agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or MyQuest’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If MyQuest initiates arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
These Terms shall be governed by the laws of the State of New York exclusive of its choice of law rules, and without regard to the United Nations Convention on the International Sales of Goods. Your conduct may also be subject to other local, state, and national laws. In any action to enforce these Terms, the prevailing party will be entitled to costs and attorneys’ fees. Any cause of action against MyQuest must be brought within one (1) year of the date such cause of action arose. In the event that any provision of these Terms is held to be unenforceable, such provision shall be replaced with an enforceable provision which most closely achieves the effect of the original provision, and the remaining terms of these Terms shall remain in full force and effect. Nothing in these Terms creates any agency, employment, joint venture, or partnership relationship between you and MyQuest or enables you to act on behalf of MyQuest. Except as may be expressly stated in these Terms, these Terms constitute the entire agreement between us and you pertaining to the subject matter hereof, and any and all other agreements existing between us relating thereto are hereby canceled. We may assign and/or transfer our rights and obligations hereunder to any third party without prior notice. You shall not assign and/or transfer any of your rights or obligations hereunder, and any assignment in violation of the foregoing shall be void. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If we are required to provide notice to you hereunder, we may provide such notice to the email account that you provided upon registration.
Last updated: September 2019