This Agreement establishes the terms to which you agree, and by which you will be legally bound, when using the Website. As used in this Agreement, “using” includes without limitation visiting, browsing, clicking on links within, and accessing information, content, functionality and/or services offered via, the Website, whether as a guest or a registered user. As set forth in detail below, this Agreement applies to all users of the Website to the extent permitted by law. Please read this Agreement carefully before you start to use the Website. If you do not agree to the terms of this Agreement and/or do not intend to be so bound, you should discontinue use of the Website (or, if the option is made available to you, do not click to agree or proceed). Capitalized terms used in this User Agreement shall have the meanings ascribed to them in Section 1 hereof.
Additional terms and conditions also may apply to specific portions, services or features made available on or through the Website. All such additional terms and conditions are hereby incorporated by this reference into this User Agreement. In the event of a conflict between any such terms and conditions (including those of any Service Agreement) and this User Agreement, such other terms and conditions shall prevail.
- Defined Terms.
“Agreement” means this User Agreement.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state or local government or any agency or instrumentality thereof and any arbitrator, court or tribunal of competent jurisdiction.
“Party” means either Scout or you.
“Scout” means Scout RFP LLC, a Delaware corporation.
“Service Agreement” means a written agreement between the Parties specifically governing the purchase of Services by you from Scout and the terms and conditions applicable to the provision of such Services by Scout.
“Services” means Scout’s e-sourcing software product and related services that may be made available to you by Scout, including any third-party software embedded therein, any Updates and any Upgrades.
“Update” means any update, feature release (e.g., 2.0 to 2.1), patch release (e.g., 2.0.1 to 2.0.2), maintenance release, bug fix or modified form of the Services that performs comparable or improved functionality and which is not an Upgrade.
“Upgrade” means any new version or major release (e.g., 2.0 to 3.0) of the Services, including any changes to the Services that (a) substantially increase the speed, efficiency or ease of use of the Services or (b) add additional capabilities to, or otherwise improve the functions of, the Services.
“Website” means the website located at scoutrfp.com (including any sub-domains such as go.scoutrfp.com) and includes all content and other items made available on such website.
- Representations & Warranties; Disclaimers.
2.1 Scout hereby represents and warrants to you that it has the full right, power and authority to (a) enter into, and to fully perform its obligations according to, this Agreement, and (b) grant to you the rights and licenses described herein.
THE WEBSITE IS PROVIDED BY SCOUT ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED OR CONTRACTUAL OR STATUTORY, ARE EXPRESSLY DISCLAIMED BY SCOUT. SCOUT DOES NOT REPRESENT, WARRANT, OR COVENANT THAT (a) THE OPERATION AND/OR USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, (b) THE WEBSITE WILL PERFORM IN EVERY OPERATING ENVIRONMENT, (c) ALL DEFICIENCIES OR ERRORS IN THE WEBSITE ARE CAPABLE OF CORRECTION, OR (d) THE WEBSITE MEETS THE REQUIREMENTS OF ANY PARTY WHATSOEVER. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED BY SCOUT.
2.2 You hereby represent and warrant to Scout that you are of legal age to form a binding contract with Scout and otherwise have the full right, power, authority and capacity to enter into, and to fully perform your obligations according to, this Agreement.
- Indemnification; Limitations on Liability; Remedies.
3.1 You shall indemnify, defend and hold harmless Scout, and its members, managers, officers, directors, employees, agents and affiliates from and against any liabilities, costs, fees and/or damages (including attorney fees) that arise out of any claim for damages resulting from (a) any material inaccuracy or breach of the representations or warranties made by you in this Agreement, (b) any material breach of a covenant made by you in this Agreement, and/or (c) any material failure to perform, or any material failure to comply with, your obligations according to this Agreement.
3.2 YOU ACKNOWLEDGE THAT, WITHOUT LIMITATION OF THAT OTHERWISE SET FORTH HEREIN, SCOUT IS IN NO WAY RESPONSIBLE (a) FOR ANY OUTCOME RESULTING FROM ANY SUBMISSION YOU MAKE USING THE WEBSITE, (b) FOR DETERMINATIONS MADE OR NOT MADE BY ANY PARTY REQUESTING DATA FROM YOU OR REQUESTING YOUR PARTICIPATION ON OR USE OF THIS WEBSITE, INCLUDING ANY SUCH PARTY’S DECISION TO LIMIT, EXPAND, SUSPEND, TERMINATE OR OTHERWISE CHANGE ITS USE OF THE SERVICES, WHETHER ANY OF THE SAME IS MADE BEFORE, DURING OR AFTER ANY SUBMISSION IS MADE, (c) FOR THE TRANSMISSION, PRIOR TO RECEIPT BY SCOUT, OF ALL INFORMATION YOU PROVIDE, OR OTHERWISE INPUT, USING THE WEBSITE, AND (d) IF YOU ARE UNABLE TO ACCESS THE SERVICES VIA THE WEBSITE AS A RESULT OF TECHNICAL OR OTHER DIFFICULTIES RESULTING FROM YOUR HARDWARE OR INTERNET CONNECTION.
3.3 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE AGGREGATE DAMAGES THAT MAY BE RECOVERED BY YOU IN CONNECTION WITH THIS AGREEMENT MAY NOT EXCEED $100.
3.4 NEITHER PARTY, NOR ANY OF ITS OR THEIR AFFILIATES, LICENSORS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, MEMBERS OR MANAGERS, MAY BE HELD LIABLE TO THE OTHER, NOR TO ANY OTHER PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS) ARISING FROM ANY CLAIM RELATING DIRECTLY OR INDIRECTLY TO YOUR USE OF THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT OR TORT (WHETHER UNDER A THEORY OF NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY IS ADVISED OF THE LIKELIHOOD OR POSSIBILITY THEREOF.
3.5 EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS RELIED UPON THE LIMITATIONS ON LIABILITY SET FORTH IN THIS AGREEMENT AND, BUT FOR THEIR INCLUSION HEREIN, WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
3.6 You further acknowledge that (a) Scout will suffer irreparable harm, and that the amount of monetary damages would be extremely difficult or impossible to calculate, if you breach your obligations according to this Agreement, (b) if you breach your obligations according to this Agreement, Scout may seek, and you covenant not to dispute any attempt by Scout to seek, injunctive relief without proving actual damages and (c) remedies sought by Scout in accordance with this paragraph shall be in addition to, and without limitation of, any other rights to which Scout may be entitled according to this Agreement or Law.
- Accessing the Website; Account Security; Your Obligations.
4.3 You may not (a) use the Website to send unauthorized, untargeted or unwanted messages, communications, advertisements or other promotional materials, (b) use automated software, scripts or other methods of accessing or using the Website without Scout’s consent, (c) scrape from, or otherwise use, the Website any content, data, material submitted or other information whatsoever or (d) impersonate another party, misrepresent your identity or affiliation with another party or otherwise inaccurately or incorrectly describe yourself.
4.4 The Website may permit you to link to other websites or resources on the Internet, and such other websites or resources may contain links to the Website. When you access third-party websites or resources, you do so at your own risk. These other websites and resources may not be under Scout’s control, and to the extent they are not, you acknowledge that Scout is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Scout or any association with its operators. You further acknowledge and agree that Scout shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
You are responsible for all of your activity in connection with the Website. By way of example, and not as a limitation, you shall not (and shall not permit any third party to) download or otherwise distribute or facilitate distribution of any content on or through the Website any material that:
- Infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
- You know is false, misleading, untruthful or inaccurate;
- Is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; or
- Impersonates any person or entity, including any employee or representative of Scout.
Additionally, you shall not: (i) interfere or attempt to interfere with the proper working of the Website or any activities conducted on the Website; (ii) bypass any measures Scout may use to prevent or restrict access to the Website (or other accounts, computer systems or networks connected to the Website); (iii) run Maillist, Listserv, any form of auto-responder or “spam” on the Website; or (iv) use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Website.
You shall not, directly or indirectly, (v) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Website, except to the limited extent applicable laws specifically prohibit such restriction, (vi) modify, translate, or otherwise create derivative works of any part of the Website, or (vii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder.
4.5 You should assume that all materials presented on the Website are protected by copyright, trademark and other intellectual property and proprietary protections. By using any of the materials or information presented on the Website without appropriate license or attribution, you may be liable for violation of intellectual property laws. Scout may not be held liable for unauthorized use of materials or information appropriated from the Website.
Scout may terminate your access to the Website with or without cause, at any time, with or without notice to you. Immediately upon such termination, you will have no further right, title or interest in or to the Website or any part thereof.
- General Provisions.
6.1 Notices. You consent to receive from Scout all communications including notices, agreements, legally required disclosures or other information in connection with the Website (collectively, “Notices”) electronically. Scout may provide such Notices by posting them on the Website or at the email address you provided to Scout. If you desire to withdraw your consent to receive Notices electronically, you must discontinue your use of the Website.
6.3 Modifications. Scout reserves the right, at its sole discretion, to modify or replace any of the provisions set forth in this Agreement at any time by posting a notice on the Website or by sending you an email at the email address you registered with Scout (if any). It is also your responsibility to check the User Agreement periodically for changes. Your continued use of the Website following the posting of any changes to the User Agreement constitutes acceptance of and agreement to those changes.
6.4 Waiver. Any provision of this Agreement may be waived, terminated or discharged with Scout’s express consent at any time and in its sole discretion. The failure of Scout to insist upon the performance of any of the terms or conditions contained in this Agreement and/or to exercise any right hereunder, may not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such rights.
6.5 Severability. If any provision of this Agreement is held to be unenforceable, the Parties shall renegotiate each such provision in good faith in order to maintain the economic position enjoyed by each Party prior to such holding with respect to each such provision rendered unenforceable. If the Parties cannot agree upon an enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of this Agreement shall be interpreted as if such provision were so excluded and (c) thereafter, this Agreement shall be enforceable in accordance with its terms.
6.6 Assignment. You may not assign this Agreement, in whole or in part, by operation of Law or otherwise, without Scout’s prior written consent. Any attempt to do so shall be deemed null and void and of no legal force or effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties’ successors and permitted assigns.
6.7 Force Majeure. Neither Party may be held liable for its failure to perform hereunder, or for any loss or damage, due to causes beyond its reasonable control, including governmental requirements, inability to obtain required export licenses, work stoppages, fire, civil disobedience, embargo, war, terrorism, riots, rebellions, earthquakes, strikes, floods, water and the elements, inability to secure equipment, raw materials or transport or similar occurrences.
6.8 Interpretation. Unless the context clearly requires otherwise, (a) the singular shall be deemed to include the plural and vice versa, (b) reference to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as may be amended or modified and in effect from time to time, (c) “hereunder”, “hereof”, “hereto” and words similar thereto shall be deemed references to this Agreement as a whole and not to any particular provision hereof, (d) the words “include” and “including” shall be deemed to mean “without limitation” and shall be interpreted not to limit the generality of any description preceding such term, (e) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding” and (f) any reference to a “Section” in this Agreement shall be construed as a reference to a section of this Agreement.
6.9 No Agency Relationship. Neither this Agreement nor any provision contained herein may be construed as creating or constituting a partnership, joint venture or agency relationship between the Parties. For the avoidance of doubt, neither Party has the power or authority to, and no Party may, assume or create any obligation or responsibility on behalf of the other.
6.10 Governing Law; Waiver of Jury Trial. This Agreement and any action related hereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
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