Service Agreement

Welcome to dscout, the website and mobile application service of dscout, Inc. (hereafter “dscout” or collectively “we” or “us”). This dscout Service Agreement (the “Agreement”) explains the terms by which you (the “Client”) may use dscout’s website (the “Site”), mobile application, and related services for research (collectively, the “Platform”). This Agreement takes effect when you click an “I Accept” button or when you use the Platform (the “Effective Date”).

By accessing or using the Platform, you signify you have read, understood, and agree to be bound by the terms of this Agreement. This Agreement includes and hereby incorporates by reference our Privacy Policy and Copyright Infringement Policy and any other agreements and policies found on the Site. This Agreement may be updated from time to time in our sole discretion with the updates being effective when posted on the Site or when we otherwise notify you of such updates. We may make such revisions without prior notice to you, so please check back often for updates and prior to initiating any Mission.

IMPORTANT NOTICE: THIS AGREEMENT INCLUDES A WAIVER OF CLASS ACTION RIGHTS. CLICK HERE FOR MORE INFORMATION.

1. Engagement of dscout.  #

Client hereby engages dscout to provide the following services (the “Services”) to Client (dscout and Client each referred to herein as a “Party,” or collectively, the “Parties”):

a. dscout agrees to provide Client during the Term (defined below) with access to the research tools and technology available through the Platform, which Client may use for its own internal research purposes, or its own client’s research, in order to post opportunities and recruit individuals (“Scouts”) to participate in Client initiated studies (the “Missions”) administered through the Platform.

b. dscout will maintain all software, equipment, and resources dscout deems reasonably necessary to set-up, implement, host, and serve the Platform, all in accordance with specifications and requirements set forth in this Agreement.

c. To the extent elected by Client, dscout will furnish Client with Scouts on a non-exclusive basis. The acceptance of any individual Scout proposed by dscout shall be at Client’s sole and absolute discretion. dscout makes no representation or warranty whatsoever regarding any Scout furnished by dscout. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, DSCOUT EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO, OR IN ANY WAY RELATED TO, ANY SCOUT FURNISHED TO CLIENT BY DSCOUT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, DSCOUT SHALL NOT BE LIABLE TO CLIENT FOR (I) ANY NEGLIGENCE OR MISCONDUCT BY ANY SCOUT FURNISHED BY DSCOUT, OR (II) ANY DAMAGE, LOSS, CLAIM, LIABILITY, JUDGMENT, ASSESSMENT, FINE, COST, DEFICIENCY OR EXPENSE WHATSOEVER WHICH MAY BE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY SCOUT FURNISHED BY DSCOUT, INCLUDING WITHOUT LIMITATION FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF DSCOUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

d. dscout may provide to Client consulting services or other services related to the use of or in support of Client’s use of the Platform, pursuant to a Statement of Work. To the extent the terms of any Statement of Work conflicts with the terms of this Agreement, the terms of the Statement of Work shall control.

e. dscout will retain sole control over the operation, provision, and management of the Platform, and provide all maintenance it deems reasonably necessary to maintain the Platform on an ongoing basis, including, without limitation, backups, server maintenance, and troubleshooting, all as described in further detail below. dscout shall make commercially reasonable efforts to perform all maintenance during off-peak times for the Platform; provided, however, that maintenance and repairs that are other than routine may occur at any time and will be performed in all respects in dscout’s good faith business judgment.

f. dscout will use commercially reasonable efforts to make the Platform generally accessible to Client 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) or other event that is beyond dscout’s reasonable control. dscout will monitor the performance and availability of the Platform pursuant to its custom and practice in order to identify the inability of the Platform to materially perform any intended feature or function consistently and without material interruption or any other material error or defect that, with respect to any of the foregoing, has a material adverse impact upon the availability, use, or performance of the Platform as reasonably determined by dscout (“Non-Conformities”). Upon dscout learning of Non-Conformities, either from its own monitoring activities, from any third party source, or from Client or any Platform visitors, dscout will be take commercially reasonable efforts to resolve Non-Conformities.

g. dscout represents and warrants that for the Term of this Agreement it will make commercially reasonable efforts to ensure that the Platform operates substantially in accordance with the requirements set forth in this Agreement (“Limited Warranty”). Client 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 non-conforming element of the Platform. dscout does not warrant that the Platform will be error-free or bug-free or virus-free or that its use will be uninterrupted; provided, however, that during the Limited Warranty period dscout will use commercially reasonable efforts to correct any such material non-conforming element of the Platform. All such warranty service shall be performed at no additional charge. Notwithstanding the foregoing, Client expressly agrees that dscout has no warranty obligations with respect to, and will not be liable hereunder for damage to the Platform, Client, Scouts, or third parties caused by, the introduction by Client, or any third party, of infections, viruses, worms, Trojan horses, or other code that manifests contaminating or destructive properties and the Limited Warranty will be voided by any such third party or Client conduct. The Limited Warranty is also voided by the modification of the Platform by any party other than dscout or the combination or use of the Platform with other software, items or processes not furnished by dscout or preapproved by dscout, in writing, if such modification, combination or use is a material cause of any failure of the Platform to substantially operate in accordance with this Agreement. For purposes of certainty, 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. Client agrees to look solely to Scouts, and not to dscout, for enforcement and performance of all rights and obligations related to services to be provided by Scouts for Client.

h. dscout reserves the right, in its sole discretion, to make any changes, modifications, updates, or revisions to the Services or the Platform that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of dscout’s services to its clients, (ii) the competitive strength of or market for dscout’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law.

i. dscout may from time to time in its discretion utilize subcontractors or third-party vendors (“Subcontractors”) to provide services or personnel to fulfill its obligations under this Agreement or any Statement of Work.

j. EXCEPT AS EXPRESSLY SET FORTH ABOVE IN SECTION 1(g) AND SECTION 8(a), DSCOUT EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO, OR IN ANY WAY RELATED TO, DSCOUT OR THE PLATFORM OR ITS PERFORMANCE, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND DSCOUT’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SECTION 12.

2. Client Obligations.  #

As a condition of the obligation for dscout to deliver and provide the Services set forth in Section 1 and applicable Statements of Work, if any, Client hereby agrees to the following obligations:

a. Client has and will retain sole responsibility and control over the operation, maintenance, and management of, and all access to and use of Client’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party services (“Client Systems”), and sole responsibility for all access to and use of the Platform by any person by or through the Client Systems or any other means controlled by Client, including any: (i) information, instructions, or materials provided to dscout directly or through the Platform; (ii) results obtained from any use of the Platform; and (iii) conclusions, decisions, or actions based on such use.

b. Client shall be solely responsible for the specific recruitment of Scouts for participation in Client’s Missions, except as may be otherwise provided in a Statement of Work. Further, Client may agree to compensate Scouts for participation in Client’s Missions in Client’s sole and absolute discretion, and Client will be solely responsible for any such compensation. Except as may be otherwise provided in a Statement of Work, dscout shall compensate Scouts for participation in Client Missions on behalf of Client, and Client shall reimburse dscout in a timely manner. In the event that Client does not reimburse dscout in a timely manner for payment to Scouts, Client agrees to indemnify, defend, and hold harmless dscout for any failure to compensate Scouts as agreed by Client. In addition, Client agrees to indemnify, defend, and hold harmless dscout for any claims by Scouts based on breach or alleged breach of Client’s agreement with its Scouts.

c. Client agrees to act in good faith and engage in fair dealing in all dealings with Scouts. This includes paying Scouts for any compensation agreed to on a timely basis for all work performed for Client. Client acknowledges that the value, reputation, and goodwill of the Platform and dscout depend in part on Client’s dealings with Scouts. If Client agreed to pay Scouts directly and does not, and then dscout compensates the Scouts on Client’s behalf, Client agrees to reimburse dscout 100% of the Scouts’ compensation, plus a ten percent (10%) management fee and a ten percent (10%) convenience fee.

d. When posting a Mission, Client may provide additional terms and conditions and/or requirements, which will govern the terms of the particular Mission. If Client desires to provide such additional terms and conditions and/or requirements, Client will post them on Client’s recruitment page so Scouts can review them prior to agreeing to participate in Client’s Mission. Those additional terms and conditions and/or requirements are supplemental to, and do not replace, this Agreement.  Client agrees not to enter into any contractual provisions with Scouts in conflict with this Agreement. Client further agrees that any provision in Client’s additional terms and conditions and/or requirements that conflicts with this Agreement is void.

e. Client is entirely responsible for safeguarding and maintaining the confidentiality of the username and passwords used to access the Platform. Client shall notify dscout immediately if Client suspects or becomes aware of any unauthorized use of Client’s username or password.

f. If dscout is required by a third party to remove any content from the Platform, or receives information that content may violate applicable law or third-party rights, or otherwise violates this Agreement, dscout’s Scout Terms and Conditions, or other policy, dscout may notify Client and in such event Client will promptly remove such content from the Platform. If Client does not take required action in accordance with the above, dscout my remove the applicable content. dscout reserves the right to remove any content from the Platform containing any information that dscout determines in its sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable, or that violates this Agreement or any entity’s intellectual property rights.

g. Client agrees that its obligations under this Agreement are not contingent on the delivery of any future functionality, or dependent on any oral or written public or private comments made by dscout regarding future functionality.

h. Client understands and agrees that all Scouts recruited by Client to participate in Client’s Mission (and all Scouts recruited by dscout) will be required, as a condition to using the Platform, to create an account on the Platform and agree to dscout’s Scout Terms and Conditions as posted on the Platform and may be amended by dscout from time to time, without prior notice, in its sole discretion, as well as the Privacy Policy which may also be so amended. Client further acknowledges and agrees that the dscout Platform does enable Scouts voluntarily to elect to join dscout’s platform and render services and conduct activities for entities other than Client, and once such a Scout elects to do so, then dscout reserves the right to solicit such Scout and treat that Scout as independent.

i. Client agrees not to pose as an employee or agent of dscout for any reason, or to communicate in such a way that a reasonable person would perceive as coming from an employee or agent of dscout. Client agrees not to create any email or social media accounts containing any form of the name “dscout.”

3. Privacy; Personal Data Transfers. #

dscout participates in and has certified its compliance with the EU-U.S. Privacy Shield Framework. dscout is committed to subjecting all EU Personal Data (as defined in our Privacy Policy) received from the European Union to the applicable EU-U.S. Privacy Shield Framework Principles. To learn more about Privacy Shield and to view dscout’s certification, visit https://www.privacyshield.gov/welcome. To the extent that Client, either directly or through the use of the Platform or the Services, receives EU Personal Data from dscout, Client agrees to (i) use the EU Personal Data consistent with the purposes outlined in this Agreement and the dscout Privacy Policy; and (ii) process the EU Personal Data with the same level of protection as the EU-U.S. Privacy Shield Framework Principles. To the extent that Client transmits any personal information or data to dscout, Client represents and warrants that it shall (i) only provide such information or data if it does so in accordance with applicable legal requirements and (ii) obtain any necessary consents or waivers in order to provide such information or data to dscout.

4. Compensation & Payment. #

a. Compensation. Unless otherwise agreed in writing by the Parties (including in a Statement of Work), Client shall be charged for use of the Services on a per Mission basis (and the charge shall be indicated on the Site at the time Client establishes a Mission). Unless otherwise agreed in writing by the Parties (including in a Statement of Work), such charges (“Compensation”) will be set by dscout in its discretion and may be modified by dscout from time to time.
b. Taxes. All Compensation and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments, unless otherwise agreed in a Statement of Work. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, tarrifs, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on dscout’s income.

5. Rights and Authorizations; Restrictions.  #

a. Rights Granted by dscout.  #

Subject to payment in full of the Compensation and Client not being in uncured material breach of this Agreement, dscout authorizes Client to access and use during the Term, the Platform and the dscout Property (defined below) solely for purposes of conducting Client Missions or for conducting Missions on behalf of customers of Client. For purposes of certainty, Client may not sublicense, reproduce, replicate, copy, sell, resell or exploit the Platform or the dscout Property unless specifically authorized in writing by dscout, and the authorization granted under this Agreement does not include the right for Client to make derivative works based on the Platform or the Services. dscout shall hold all right, title, and interest in all original material and information generated through the Services or the Platform, or submitted by Scouts, including but not limited to personal information, videos, photos, data, content, output, summaries, documents, analyses, and reports (collectively, “Data”). Notwithstanding the foregoing, dscout hereby grants Client a world-wide, perpetual, royalty-free, transferable, non-exclusive license to access, use, view, print, store, manipulate, download, analyze, and reformat the Data during the Term and thereafter for any legitimate business purposes (including research and marketing purposes), subject to applicable legal requirements and any restrictions set forth in the Privacy Policy. If dscout uses Data for any purpose other than for testing, ongoing development, or to provide the Services, dscout’s use of Data shall not be identifiable to third parties as relating to Client.

b. Exclusions and Reserved Rights.  #

This is an Agreement for access to and use of the Platform, and nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property (defined below) in or relating to, the Platform, dscout Property, or Third Party Materials (defined below), whether expressly, by implication, estoppel, or otherwise. Except for the limited access and use authorization set forth in Section 5(a), dscout expressly reserves all of its rights of whatever kind and nature (now or hereafter known) in the Platform, the dscout Property, and the Third Party Materials. 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.  #

Client shall not, and shall not permit any other person or entity to, access or use the Platform or dscout Property except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. Without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits:

(i) copy, modify or create derivative works or improvements of the Platform or dscout Property;

(ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Platform or dscout Property, in whole or in part;

(iii) bypass or breach any security device or protection used by the Platform;

(iv) input, upload, transmit, or otherwise provide to or through the Platform, any information or materials that are unlawful or injurious, or contain, transmit, or activate any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby;

(v) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Platform, dscout Property, dscout’s provision of services 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 any Services or dscout Property, including any copy thereof;

(vii) access or use the Platform or dscout Property in any manner or for any purpose that 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 customer), or that violates any applicable law;

(viii) access or use the Platform or dscout Property for purposes of competitive analysis of the Platform or dscout 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; or

(ix) otherwise access or use the Services or dscout Property beyond the scope of the authorization granted under Section 5(a).

d. Definitions. #

For purposes of this Agreement, (i) “Intellectual Property” means any and all (by whatever name or term known or designated and whether now or hereafter known) tangible and intangible, and now or hereafter existing: copyrights (including, without limitation, all derivative works), trademarks, servicemarks, tradenames, trade identities, logos, trade secrets, know-how, patents, and any other intellectual, industrial or design property or proprietary rights, of every kind and nature, and all rights ancillary thereto, worldwide, including, without limitation, all registrations, applications, renewals, extensions, revivals and resuscitations thereof; (ii) “Third Party Materials” means software and other materials from third parties incorporated into the Platform or Services (but excluding the Client Content (defined below); (iii) “Generic Elements” means standard routines, development tools, programming techniques, interfaces, text, source code, HTML files, software, utilities, engine code, maps, files, macros, object libraries, programmer’s documentation, technical specifications, flowcharts and logic diagrams, schematics, animation, 3D modeling, sound recordings, video, photographs, original art assets or other artwork, or other material of dscout used in the creation of and/or incorporated into the Platform, look, and feel of the Platform, and all Intellectual Property related thereto, except to the extent such materials incorporate or are dependent upon the Client Content or Confidential Information (defined below); (iv) “Proprietary Property” means all Intellectual Property or other materials or property of dscout that dscout includes in the Platform and/or Services excluding Client Content; and (v) “dscout Property” means collectively the Proprietary Property and the Generic Elements.

e. Rights Granted by Client. #

Client may upload, at its cost and expense, and populate the Platform with content to promote their Missions, which shall be owned, controlled or licensed by Client, including, without limitation, any content that Client provides or makes available to dscout to facilitate the performance of the Services and the Platform, including, without limitation, any and all thematic concepts, images, photographs, illustrations, graphics, audio clips, video clips, advertising campaigns, trademarks, trade names, service marks, logos, trade identities, text, sound recordings, audiovisual works, musical compositions, literary material, business methods, business processes and all intellectual property rights thereto (collectively, “Client Content”). Client hereby grants an irrevocable, non-exclusive, fully-paid, royalty-free license to use the Client Content (1) to dscout and its Subcontractors for purposes of providing the Services hereunder; and (2) to dscout as necessary or useful to enforce this Agreement and exercise its rights under this Agreement.

f. Feedback. #

dscout encourages all customers to provide feedback on the functionality and performance of the Platform and the methodologies and techniques used in conducting the Services, including, without limitation, identifying potential errors, improvements, modifications, bug fixes, or enhancements (“Feedback”). If Client provides any Feedback to dscout, Client hereby agrees that such Feedback will be non-confidential and that dscout owns all rights to use and incorporate the Feedback into the Platform or Services, without compensation to Client.

6. Confidential Information and Trade Secrets.  #

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:

a. Information, data, and materials relating to the Platform and 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;

b. Respective Parties’ clients, data, subscriber, sales, profits, organizational restructuring, new business initiatives and/or financial data, lists and/or information; and

c. Information, data, and materials that describe a Party’s products, including product designs, product strategies, profitability, and how such products are administered and managed.

Each Party covenants and agrees that:
a. 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;

b. 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 that it uses with regard to its own like Confidential Information;

c. It will not, directly or indirectly, disclose any Confidential Information to anyone outside of their organization, other than to Subcontractors having a “need to know” in connection with the performance of this Agreement, or as otherwise authorized in this Agreement, except with the other Party’s prior written consent; nor will it disclose any of the other Party’s Confidential Information to any of its own employees or representatives except those having a “need to know” in connection with the performance of this Agreement, and it shall instruct its employees, Subcontractors, and representatives as to their obligations under this Agreement;

d. It will not use or otherwise exploit the other Party’s Confidential Information for any purposes other than its respective performance of its obligations hereunder and the exercise to the rights granted to it; and

e. On the termination or expiration of this Agreement, or at any time that a Party so requests, the other Party will destroy all Confidential Information, memoranda, notes, records, media, and other documents and materials (and all copies thereof) regarding or including any Confidential Information which it may then possess or have under its control, provided that one (1) copy of requesting Party’s Confidential Information may be kept by the other Party’s legal department for legal purposes only.

If disclosure of the other Party’s Confidential Information is required by law, the disclosing Party shall notify the other Party in writing in advance of such disclosure, and provide the other Party with copies of any related information so that it may take appropriate action to protect the Confidential Information, should it so desire. Notwithstanding the foregoing provisions, Confidential Information does not include: (i) information already rightfully known at the Effective Date or independently developed by a Party without use of the other Party’s Confidential Information; (ii) information in the public domain through no wrongful act of a Party; or (iii) information received by a Party from a third party who was free to disclose it.

7. Injunctive Relief. #

The Parties acknowledge that violation by one Party of the provisions of Section 6 or any infringement of its respective Intellectual Property rights would cause irreparable harm to the other Party not adequately compensable by monetary damages alone. In addition to other relief, it is agreed that preliminary and permanent injunctive relief shall be available, without the necessity of posting a bond, to prevent any such actual or threatened violations.

8. General Warranties. #

a. dscout. dscout hereby represents and warrants that: (a) it has the right to enter into this Agreement and perform its obligations hereunder and to grant the rights granted to Client hereunder; and (b) its performance of its obligations under this Agreement does not violate or conflict with any other agreement or obligation by which it may be bound.

b. Client. Client hereby represents and warrants that: (a) it has the right to enter into this Agreement and perform its obligations hereunder and to grant the rights granted to dscout hereunder; (b) its performance of its obligations under this Agreement does not violate or conflict with any other agreement or obligation by which it may be bound; (c) it has acquired all required licenses and government approvals necessary to use the Platform and the Services legally and in compliance with all local, state, or federal laws, rules, or regulations; (d) all Client Content, dscout’s use thereof, the use and exploitation of the Platform by Client, the Missions, and Client’s performance hereunder, will not: (i) violate any local, state or federal laws, rules or regulations, including, without limitation, the laws, rules and regulations governing Client’ business activities and licensing thereof; or (ii) infringe, violate or misappropriate any Intellectual Property right of any third party.

9. Indemnification. #

a. Client will defend, indemnify and hold dscout, its parent company, and each of their respective subsidiaries, members, affiliates, directors, officers, representatives, employees, agents, successors, licensees, and assigns harmless from and against any and all actual or alleged losses, damages, liabilities, claims, demands, suits, fines, penalties, and expenses (including outside attorneys’ fees and costs) (collectively, “Losses”), resulting from any third party (including government agencies) allegation, claim, action, or proceeding arising out of, in connection with, or related to Client’s actual or alleged: (i) breach of this Agreement; (ii) infringement, misappropriation, or violation of any Intellectual Property right, or any other claim relating to the Client Content; and (iii) engagement of or agreement with any Scout.

b. dscout will promptly notify Client of any claim (provided that any delay in notification by dscout will not relieve Client of its indemnification obligations hereunder, except to the extent that the delay materially impairs Client’s ability to defend), will permit Client to control the defense and settlement (subject to the last sentence of this Section 9(b)) of the claim, and will cooperate with Client, at Client’s expense, in the defense and settlement. dscout will have the right, at its own expense, to participate in the defense and settlement of a claim represented by counsel that dscout selects. Client will not settle any claim without the prior written consent of dscout (which consent will not be unreasonably withheld or delayed).

10. Notices. #

All notices required or desired to be given hereunder shall be in writing and shall be delivered personally, or sent by certified or registered mail, postage prepaid, faxed or delivered by Federal Express or other recognized overnight courier service as follows:

To dscout:
dscout, Inc. 432 N Clark St., 4th Floor, Chicago, Illinois 60654 - Attn: President

To Client:
To the physical address we have on file associated with client’s dscout account; it is Client’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, and another copy is faxed, if possible.

11. Term and Termination. #

This Agreement shall commence as of the Effective Date and continue until terminated pursuant to the terms hereof (the “Term”). Statements of Work hereunder, if any, shall be for the term set forth therein; provided, however, that either Party may terminate this Agreement and any Statement of Work hereunder, and any Services being performed under this Agreement and any Statement of Work hereunder for convenience and without cause upon thirty (30) days written notice to the other Party, except for Statements of Work that otherwise expressly do not permit such termination for convenience. The rights, duties and responsibilities of both Parties will continue in full force during the period of notice. Either Party may terminate this Agreement and any Statement of Work 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 to such effect (if cure is reasonably practical). Either Party, to the fullest extent permitted by applicable law, shall have the right to terminate this Agreement and any Statement of Work hereunder if the other Party becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in bankruptcy is filed with respect to the Party and is not dismissed within ten (10) business days or if it fails to give reasonable assurances of its financial ability to timely and fully meet its obligations hereunder. Termination shall have no effect on dscout’s rights to the dscout Property and Data and Client’s rights to the Client Content and Data as set forth in Section 5. In the event of termination of this Agreement by Client, provided that dscout is not in material uncured default hereunder, Client will be obligated to continue to pay dscout, the remaining Compensation owed to it as calculated and as contemplated in Section 4, or as agreed under the terms in any Statement of Work, and Client shall not be entitled to a refund of any Compensation paid by Client or any other cost or expenditure incurred by the Client in respect of this Agreement. The following provisions will survive the termination of this Agreement: Sections 1(c), (d), and (j), 2-7, 9-10, 12-13, 15-18, and 21, together with any other provision that shall naturally survive the termination of this Agreement.

12. Limitation on Liability. #

IN NO EVENT SHALL DSCOUT BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, DAMAGES FOR SERVICE INTERRUPTIONS, LOSS OF DATA OR BREACH OF DATA OR SYSTEM SECURITY, LOST OPPORTUNITIES OR PROFITS OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST SAVINGS, OR LOSS OF GOODWILL) ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF DSCOUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN ANY CASE, THE TOTAL AGGREGATE LIABILITY OF DSCOUT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OF THE SERVICES SHALL BE LIMITED TO THE TOTAL COMPENSATION PAID BY CLIENT TO DSCOUT OVER THE PREVIOUS TWELVE (12) MONTHS PRIOR TO THE DATE WHEN THE 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.

13. Reference. #

Client hereby grants dscout approval to promote the projects it has performed on behalf of Client in all 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 Client without the consent of Client, which consent will not be unreasonably withheld or delayed.

14. Assignment. #

Client 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 in all respects by the laws of the State of Illinois without giving effect to any principle that may provide for the application of the law of another jurisdiction including conflicts of law provisions. Except as stated below, the Parties agree that any claim or controversy arising out of or relating to this Agreement, including its execution, performance, or breach (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 the purpose of litigating all such Claims. If a Claim proceeds in court, 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 Service 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 Services. 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. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties. Each Party shall remain responsible for the withholding and payment of all federal, state and local personal income, wage, earnings, occupation, social security, worker’s compensation, unemployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements (under ERISA, state law or otherwise) now existing or hereafter enacted and attributable to themselves and their respective employees and those of its contractors.

17. Security, No Conflicts. #

Each Party agrees to inform the other of any information made available to the other Party that is classified or restricted data, agrees to comply with the security requirements imposed by any country, state or local government, or by the United States Government, and shall return all such material upon request. Each Party warrants that its participation in this Agreement does not conflict with any contractual or other obligation of the Party or create any conflict of interest prohibited by the U.S. Government or any other government and shall promptly notify the other Party if any such conflict arises during the Term.

18. Force Majeure. #

Except for the payment of Compensation, 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.

19. 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.

20. Information or Complaints. #

Under California Civil Code Section 1789.3, California users of the Service are entitled to the following consumer rights notice: If you have a question or complaint regarding the Service, 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.

dscout, Inc.
432 N. Clark, Floor 4 
Chicago, IL 60654
info@dscout.com

21. Miscellaneous. #

This Agreement supersedes any and all other representations, discussions, and agreements, either oral or in writing, between the Parties related to the matters stated herein, and this Agreement contains the complete understanding of the Parties with respect thereto, except that in the event of a conflict with any applicable Statement of Work, in which case the Statement of Work shall supersede. If any provision of this Agreement shall for any reason be declared by a court of competent jurisdiction to be invalid, illegal, unenforceable, inoperative, or otherwise ineffective, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Captions contained in this Agreement are for reference purposes only and are not intended by either Party to describe, interpret, define, or limit the scope, extent, or intent of the Agreement or any of its provisions. The Client is responsible for compliance with applicable local laws, keeping in mind that access to the contents of the Service may not be legal for or by certain persons or in certain countries. dscout will not be considered to have modified or waived any of its rights or remedies under this Agreement unless the modification or waiver is in writing and signed by an authorized representative. No delay or omission by dscout in exercising rights or remedies will impair any rights or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. The Service is controlled and operated from its facilities in the United States. dscout makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. The Client may not use or access the Service if it 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, or is a person, or entity directly or indirectly owned or controlled by any person, currently included on the List of Specially Designated Nationals and Blocked Persons or the Foreign Sanctions Evaders List maintained by the U.S. Treasury Department’s OFAC.