Master Access Agreement | 2019
Last Updated: Aug 14, 2019
Active until April 1, 2020. Click here to read the current Master Access Agreement.
Welcome to dscout, the website and mobile application platform of dscout, Inc. (hereafter “dscout,” “we” or “us”). Unless separately agreed in a Master Services Agreement or other similar agreement, this dscout Access Agreement (“Agreement”) governs your use of dscout’s website (the “Site”), mobile application, and related tools for research (collectively, the “Platform”). This Agreement takes effect (the “Effective Date”) when you, on your behalf or on behalf your organization (“Customer” or “you”), agree to the terms of this Agreement through a Work Order (defined below). You and dscout (each, a “Party;” together, the “Parties”) will also enter into a Project Access Agreement, a Subscription Access Agreement, a work order, a purchase order or a similar document (each, a “Work Order”). In the event of a conflict between this Agreement and a Work Order, the Work Order shall take precedence.
We may make non-material changes to this Agreement without prior notice to you, which will become effective when we post them on the Site. We recommend you review this Agreement for updates regularly and prior to initiating any Mission.
IMPORTANT NOTICE: THIS AGREEMENT INCLUDES A WAIVER OF CLASS ACTION RIGHTS. CLICK HERE FOR MORE INFORMATION.
1. Platform and Limited Warranty.
During the Term (as defined below):
a. dscout agrees to provide Customer with access to the Platform (“Access”), and certain support for the research tools and technology available through the Platform, which Customer may use for its own internal research purposes, or its own customer’s research, in order to post opportunities, recruit research respondents (“Scouts”) and conduct Customer-initiated studies (the “Missions”) on the Platform. Customers will choose which Scouts will be offered Missions. Scouts are independent contractors and not agents of dscout. dscout has no control over, and does not guarantee the accuracy of, the qualifications, backgrounds, or abilities of Scouts or the information they provide, or that a Scout can or will begin or complete a Mission. dscout does not verify information provided by Scouts and does not and will not perform background checks on Scouts. Customer agrees to look solely to Scouts, and not to dscout, for obligations and actions of Scouts. Customer acknowledges and agrees that the Platform enables Scouts voluntarily to elect to join the Platform and engage in Mission activities for anyone.
b. dscout will use commercially reasonable efforts to make the Platform generally accessible to Customer twenty-four hours a day, seven days a week, excluding scheduled downtime or the occurrence of any Force Majeure Event (as set forth in Section 18). dscout will monitor the performance and availability of the Platform to identify problems that could limit Access or performance (“Platform Problems”). dscout will try to perform all scheduled Platform maintenance outside of dscout normal work hours.
c. dscout commits to make commercially reasonable efforts to ensure that the Platform operates substantially in accordance with the requirements set forth in this Agreement (“Limited Warranty”). Customer agrees that its sole remedy and dscout’s sole liability for breach of this Limited Warranty will be for dscout to use commercially reasonable efforts to correct any Platform Problems. dscout does not warrant that the Platform will be error-free or bug-free or virus-free or that its use will be uninterrupted. All such warranty work shall be performed at no additional charge to Customer. The Limited Warranty is voided by the modification of the Platform by any party other than dscout or the combination or use of the Platform with other software not furnished by dscout or preapproved by dscout, in writing, if such modification, combination or use is a material cause of any Platform Problems.
d. dscout solely reserves the right to make any changes or updates to the Platform it deems necessary.
e. dscout may from time to time in its discretion use subcontractors or third-party vendors (“Subcontractors”) to provide Access or support or personnel to fulfill its obligations under this Agreement or any Work Order. Subject to the other limits in this Agreement, dscout accepts all liability resulting from actions or inactions of its Subcontractors. For the avoidance of doubt, Scouts are not to be considered Subcontractors of dscout.
f. EXCEPT AS EXPRESSLY SET FORTH HEREIN, DSCOUT EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO, OR IN ANY WAY RELATED TO, DSCOUT, THE PLATFORM OR SCOUTS, OR THE PLATFORM’S PERFORMANCE, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
2. Customer Obligations.
As a condition to receive Access, Customer agrees that:
a. Customer is solely responsible for any actions taken on the Platform by anyone accessing the Platform using Customer’s passwords.
b. Customer shall be solely responsible for any compensation Customer agrees to provide to any Scout for any Mission. Except as otherwise agreed in a Work Order, dscout shall pay compensation to Scouts on behalf of Customer, and Customer shall reimburse dscout. If Customer agreed to pay Scouts directly and does not, and then dscout compensates the Scouts on Customer’s behalf, Customer agrees to reimburse dscout an amount equal to one hundred percent (100%) of the undisputed Scouts’ compensation, plus a twenty percent (20%) handling fee. Customer shall act in good faith and engage in fair dealing in all dealings with Scouts, including by paying Scouts (or reimbursing dscout for) any undisputed compensation on a timely basis for all Missions performed for Customer.
d. dscout reserves the right to remove any content from the Platform containing any information that dscout determines in its sole discretion must be removed, including under applicable law, to comply with Scout privacy rights, or that is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable, or that violates this Agreement or any entity’s intellectual property rights.
3. Privacy; Personal Data Transfers; Data Security.
a. Personal Data. “Personal Data” means any information relating to an identified or identifiable individual and has the meaning set forth in any applicable law pertaining to personal data, personal information, and/or personally identifiable information, including but not limited to the EU General Data Protection Regulation.
b. Legal Posture of the Parties. Each Party is a controller of Personal Data and is independently responsible for compliance with applicable law with respect to its own processing of such Personal Data in connection with this Agreement, including data subject notice and transparency requirements and the requirement to obtain any legally required consents or take any other necessary steps to lawfully conduct its business.
d. Data Subject Rights. Local laws may give Scouts the right to obtain certain information about the processing of their Personal Data or request the rectification, erasure or blocking of their Personal Data. Customer agrees that it shall be responsible for responding to and, if required, complying with, any such requests related to Personal Data it receives from Scouts though the dscout platform. Where Customer receives a request relating to Personal Data (i) in the possession of dscout, or (ii) accessible or modifiable by dscout, and (iii) such Personal Data is received by Customer through the dscout platform, Customer shall, as soon as reasonably practical forward the request to dscout, and, if requested by dscout, promptly inform the Scout it has done so and that dscout will manage the response. Customer and dscout will agree to provide reasonable and prompt assistance as is necessary to each other to enable response to and/or compliance with any such requests, and to respond to any other queries or complaints from Scouts.
e. Security. Customer and dscout agree to implement appropriate technical, physical, and organizational measures to protect one another’s Confidential Information and the Data (as defined below) in its possession against unauthorized access, unauthorized or unlawful processing, or unauthorized loss, destruction, damage, alteration, or disclosure (“Breach”). Each party agrees to promptly notify the other following the discovery of any potential or actual Breach of Data, Confidential Information, or information related to Scouts. Customer shall notify dscout immediately if Customer suspects or becomes aware of any unauthorized use of Customer’s username or password. dscout will promptly notify Customer, in compliance with applicable law, following the discovery of any Breach of Customer Confidential Information, including but not limited to Customer Mission Entries or Screener Data. Each party agrees to provide reasonable assistance to the other as is necessary to facilitate the handling of any Breach of such data, including, as applicable in investigating and remediating the breach, cooperating with any supervisory authorities and law enforcement, and assisting with any notifications as required. Upon any such discovery, as applicable, each party will take all reasonable steps to investigate, remediate, and mitigate the effects of the Breach.
4. Compensation & Payment.
a. Compensation. Fees to be paid by Customer to dscout for Access will be set forth in the applicable Work Order.
b. Taxes. All compensation and other amounts payable by Customer under a Work Order are exclusive of taxes and similar assessments, unless otherwise agreed in a Work Order. Customer is responsible for all taxes on any amounts payable by Customer under a Work Order, other than any taxes imposed on dscout’s income.
5. Rights and Authorizations; Restrictions.
a. Rights Granted by dscout.
b. Exclusions and Reserved Rights.
Except as set forth herein, dscout reserves all of its rights (now or hereafter known) in the Platform, all Intellectual Property relating to the Platform, the Data and the Third Party Materials (defined below). Some Third Party Materials may be incorporated into the Platform under a separate license, such as free software, open source, or other license. In the event of a conflict between this Agreement and any such separate license, the separate license will prevail with respect to such Third Party Materials.
c. Authorization Limitations and Restrictions.
Customer shall not, except as this Agreement expressly permits:
(i) sublicense, reproduce, replicate, copy, sell, resell, make derivative works of, modify or exploit the Platform or any dscout Intellectual Property unless specifically authorized in writing by dscout;
(ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part;
(iii) bypass or breach any security device or protection used by the Platform;
(iv) use the Platform to transmit or upload any virus, malware or other malicious computer code;
(v) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Platform, dscout’s Intellectual Property or dscout’s provision of Access to any third party, in whole or in part;
(vi) remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform;
(vii) access or use the Platform in any manner or for any purpose that knowingly infringes, misappropriates, or otherwise violates any Intellectual Property right, privacy right, or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other dscout customers), or that violates any applicable law;
(viii) access or use the Platform for purposes of competitive analysis of the Platform or dscout’s Intellectual Property, the development, provision, or use of a competing service or product, or any other purpose that is to dscout’s detriment or commercial disadvantage, including to recruit any Scouts for any purpose other than performing Missions through the Platform; or
(ix) otherwise access or use the Platform or dscout’s Intellectual Property beyond the scope of the authorization granted under Section 5(a).
For purposes of this Agreement: (i) “Intellectual Property” means any and all, whether now or hereafter existing, copyrights source code, trademarks, tradenames, logos, trade secrets, know-how, patents, technical specifications, any other intellectual, industrial or design property or proprietary rights, and all registrations, applications, renewals, extensions, and revivals thereof; and (ii) “Third Party Materials” means software and other materials from third parties incorporated into the Platform (but excluding the Customer Content and Customer’s Confidential Information (each as defined below).
e. Rights Granted by Customer.
Customer may upload, at its cost and expense, and populate the Platform with Mission descriptions and information and other content to promote its Missions, which content shall be owned, controlled or licensed by Customer (collectively, “Customer Content”). Customer hereby grants to dscout an irrevocable, non-exclusive, fully-paid, royalty-free, perpetual, world-wide license to use the Customer Content (i) for purposes of providing the Access hereunder; and (ii) as necessary or useful to dscout to enforce this Agreement and any Work Orders and exercise its rights under this Agreement and any Work Order.
If Customer provides any feedback on the functionality and performance of the Platform (“Feedback”) to dscout, Customer agrees that such Feedback will be non-confidential and that dscout owns all rights to use and incorporate the Feedback into the Platform.
6. Confidential Information and Trade Secrets.
a. For the purposes of this Agreement, the term “Confidential Information” shall mean all business, technical, and financial information of a Party that it maintains as proprietary and confidential, including, but not limited to:
(i) Information, data, and materials relating to planned or existing websites, computer systems and system architecture, including graphics, text, custom programming scripts and computer software programs, computer hardware, source code, object code, documentation, content, methods of processing, and operational methods;
(ii) Information relating to sales, profits, organizational restructuring, new business initiatives and/or financial data, lists and/or information; and
(iii) Information, data, and materials that describe a Party’s products, including product designs, product strategies, profitability, and how such products are administered and managed.
The Data shall be considered the Confidential Information of dscout and Customer Content shall be considered the Confidential Information of Customer. Notwithstanding the foregoing, Confidential Information does not include: (A) information already rightfully known at the Effective Date or independently developed by a Party without use of the other Party’s Confidential Information; (B) information in the public domain through no wrongful act of a Party; or (C) information received by a Party from a third party who was free to disclose it.
b. Each Party covenants and agrees that:
(i) The Confidential Information of each Party constitutes a valuable trade secret of that Party, which was developed only upon the expenditure of significant time and money;
(ii) It will keep and maintain all such Confidential information of the other Party supplied to it by, or on behalf of the other Party in strict confidence, using at least the same degree of care to protect it that it uses with regard to its own like Confidential Information;
(iii) It will not, directly or indirectly, disclose any Confidential Information to anyone outside of their organization, other than to Subcontractors, employees or representatives having a “need to know” in connection with the performance of this Agreement, or as otherwise authorized in this Agreement; and it shall instruct its employees, Subcontractors, and representatives as to their obligations under this Agreement;
(iv) It will not use or otherwise exploit the other Party’s Confidential Information for any purposes other than its performance of its obligations hereunder and the exercise to the rights granted to it; and
(v) On the termination or expiration of this Agreement, or at any time that a Party so requests, the other Party will return or destroy all Confidential Information, memoranda, notes, records, media, and other documents and materials (and all copies thereof) regarding or including any Confidential Information of the requesting Party which it may then possess or have under its control, provided that (a) one (1) copy of the requesting Party’s Confidential Information may be kept by the other Party’s legal department for legal purposes only, and (b) copies held on a tape backup system and not otherwise accessible in the normal course of business may be retained until they are destroyed pursuant to the holder’s document-retention policy. Notwithstanding anything else in this section, Customer does not need to destroy or return Data (i.e., Screener Data or Mission Entries) unless specifically requested by dscout, in accordance with applicable data privacy laws or regulations.
7. Injunctive Relief.
The Parties acknowledge that a violation by one Party of the provisions of Section 6 or any infringement of a Party’s respective Intellectual Property rights may cause irreparable harm to the other Party, which harm may not be adequately compensable by monetary damages alone. In addition to other relief, it is agreed that preliminary and permanent injunctive relief may be sought, without the necessity of posting a bond, to prevent any such actual or threatened violations.
a. dscout. dscout hereby represents and warrants that: (i) it has the right to enter into this Agreement and perform its obligations hereunder; (ii) its performance of its obligations under this Agreement does not violate or conflict with any other agreement or obligation by which it is bound, and (iii) it has acquired all required licenses and government approvals necessary to provide Access to Customer as set forth herein.
b. Customer. Customer hereby represents and warrants that: (i) it has the right to enter into this Agreement and perform its obligations hereunder; (ii) its performance of its obligations under this Agreement does not violate or conflict with any other agreement or obligation by which it is bound; (iii) all Customer Content (and dscout’s use thereof in accordance with this Agreement) and Customer’s performance hereunder will not: (A) violate any law or regulation applicable to Customer; or (B) infringe, violate or misappropriate any Intellectual Property right of any third party; and (iv) neither Customer, nor any of its users, is located, organized, or resident in a country or territory that is, or whose government currently is, the target of sanctions, embargoes, or trade restrictions imposed by any U.S. government authority, and is not a person, or entity directly or indirectly owned or controlled by any person, currently included on any U.S. Government Denied Party/Persons List.
a. If a third party makes a claim against a Party based on the indemnified matters described in this Section 9, then the indemnitor will defend and indemnify the indemnified Party, its affiliates and their respective directors, officers and employees against the claim at the indemnitor’s expense and shall pay all losses, damages and expenses (including reasonable attorney’s fees) awarded against such indemnified parties or agreed to in a written settlement agreement signed by the indemnitor, to the extent arising from the claim.
Customer shall indemnify dscout for: (i) breach of any representation, warranty or obligation of Customer in this Agreement or any Work Order; (ii) Customer’s infringement, misappropriation, or violation of any third party’s Intellectual Property right, or any other claim relating to the Customer Content; and (iii) engagement of, agreement with, or injuries caused by any misconduct of Customer towards, any Scout or any breach by Customer of any additional Customer terms agreed upon with any Scout.
dscout shall indemnify Customer for: (i) breach of any representation, warranty or obligation of dscout in this Agreement or any Work Order; and (ii) the Platform’s infringement, misappropriation, or violation of any third party’s Intellectual Property right enforceable in the United States.
b. Either dscout or Customer, as appropriate, will promptly notify the other Party of any claim (provided that any delay in notification by one Party will not relieve the other Party of its indemnification obligations hereunder, except to the extent that the delay materially impairs the other Party’s ability to defend), will permit the other Party to control the defense and settlement of the claim, and will reasonably cooperate with the other Party, at the other Party’s expense, in the defense and settlement of any indemnified claim.
All notices shall be in writing and shall be delivered personally, or sent by certified or registered mail, postage prepaid, or delivered by Federal Express or other recognized overnight courier service as follows:
dscout, Inc. 222 North LaSalle Street Suite 650, Chicago, IL 60601 - Attn: President
To the physical address we have on file associated with Customer’s dscout account; it is Customer’s responsibility to keep its physical address up to date with dscout.
All such notices shall be effective when actually delivered, unless delivery is refused, in which case it shall be effective when delivery is attempted, providing that a copy thereof is immediately sent by registered or certified mail.
11. Term and Termination.
This Agreement shall start on the Effective Date and continue until terminated pursuant to the terms hereof (the “Term”). Access shall be for the term set forth in the Work Order(s). Either Party may terminate this Agreement and any Work Order(s) hereunder, and any Access granted under this Agreement and any Work Order(s) hereunder, for convenience and without cause upon thirty (30) days written notice to the other Party, except for any Work Order(s) that otherwise expressly do not permit such termination for convenience. This Agreement will continue in full force during that notice period. Either Party may terminate this Agreement and any Work Order(s) hereunder immediately in the event that the other Party fails to cure a breach of a material obligation within thirty (30) days from receipt of notice (if cure is reasonably practical). In the event of Customer’s termination for convenience, provided that dscout is not in material uncured default, Customer will be obligated to continue to pay dscout the remaining fees and other amounts set forth in the applicable Work Order(s) then in effect, and Customer shall not be entitled to a refund of any fees or other amounts paid by Customer or any other cost or expenditure incurred by the Customer in respect of this Agreement or any applicable Work Order(s), unless a Work Order provides otherwise. The following provisions will survive the termination of this Agreement: Sections 1(f), 2-7, 9-14 and 20, together with any other provision that shall naturally survive the termination of this Agreement.
12. Limitation on Liability.
NEITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, damages for LOST PROFITS, dimunition of value, SERVICE INTERRUPTIONS, LOSS OF DATA OR BREACH OF DATA OR SYSTEM SECURITY, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR LOSS OF GOODWILL) IN CONNECTION WITH THIS AGREEMENT OR ANY WORK ORDER, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. DSCOUT SHALL NOT BE LIABLE TO CUSTOMER FOR ANY ACTS OR OMISSIONS BY ANY SCOUT OR ANY DAMAGE, LOSS, CLAIM, LIABILITY, FINE, COST OR OTHER EXPENSE WHATSOEVER WHICH MAY BE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY SCOUT. IN ANY CASE, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY ACCESS AND ANY WORK ORDER SHALL BE LIMITED TO THE GREATER OF (a) $100,000 OR (b) THE TOTAL COMPENSATION PAID BY CUSTOMER TO DSCOUT OVER THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE WHEN THE FIRST CLAIM AROSE. Some states and jurisdictions do not allow for all the foregoing exclusions and limitations of incidental or consequential damages, so to that extent, if any, some or all of these limitations and exclusions may not apply to you.
Customer hereby grants dscout approval to promote the projects it has performed on behalf of Customer in all of dscout’s forms of marketing, including, but not limited to: dscout’s website, press releases, brochures and other marketing and advertising materials. Other than as contemplated by the previous sentence or otherwise in this Agreement, dscout will not use any trademarks, copyrights, service marks logos, Confidential Information or other proprietary material of Customer without the consent of Customer.
Customer will not assign this Agreement, or delegate, or sublicense any of its rights under this Agreement, without dscout’s prior written consent. Any assignment or transfer in violation of this Section will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the Parties and their respective successors and assigns.
15. Governing Law and Jurisdiction; Waiver of Jury Trial; Class Action Waiver.
This Agreement is governed by Illinois law (excluding any conflict of law provisions). The Parties agree that any claim or controversy relating to this Agreement (a “Claim”) must be resolved by a court located in Cook County, Illinois. The Parties hereby submit to the exclusive personal jurisdiction of the courts located within Cook County, Illinois for all Claims. The Parties each waive any right to a jury trial.
Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS. The Parties agree that they will resolve any Claims on an individual basis, and that any Claims brought under this Agreement or in connection with the Access will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. The Parties further agree that they shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising under this Agreement or in connection with the Access. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that a lawsuit can proceed on a class basis, then the Claims must be litigated in federal court located in Cook County, Illinois.
16. Independent Contractor Status.
Each Party and its employees are independent contractors in relation to the other Party with respect to all matters arising under this Agreement.
17. Force Majeure.
Except for the payment of fees and other amounts owed to dscout, neither Party will be held responsible for any delay or failure in performance under this Agreement to the extent that delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, inability to obtain delivery of parts, supplies, or labor, labor conditions, earthquakes, war, terrorism, invasion, riot or other civil unrest, national or regional emergency, or shortage of adequate power or telecommunications, or any other cause beyond its control and without the fault or negligence of the delayed or non-performing Party, including specifically any failure of dscout’s web hosting service provider or database hosting provider to provide service to dscout (a “Force Majeure Event”).
18. Copyright Complaints.
We respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please see dscout’s Copyright Infringement Policy.
19. Information or Complaints.
Under California Civil Code Section 1789.3, California users of the Platform are entitled to the following consumer rights notice: If you have a question or complaint regarding the Platform, please send an e-mail to the e-mail address listed below. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
222 North LaSalle Street, Suite 650
Chicago, IL 60601
This Agreement (together with all Work Orders) supersedes any other agreements between the Parties relating to the subject matter in this Agreement and the Work Orders and is the complete understanding of the Parties. If a court should find a provision of this Agreement or Work Order unenforceable, the remainder shall remain in full force and effect. Captions are included for reference only. No waiver is effective unless signed by the waiving party. The waiver by either Party of any breach is not a waiver of any other breach. The Platform is controlled and operated from dscout’s facilities in the United States. dscout makes no representations that the Platform is appropriate or available for use in other locations. In using the Platform, Customer is responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. There are no third party beneficiaries of this Agreement except as stated in Section 9.