Subscription Services Agreement
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE OR CLICKING “AGREE” YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
This agreement is between ScholarSelect, LLC, a Texas limited liability company (SmarterSelect), and the Customer agreeing to these terms (Customer).
1. SOFTWARE SERVICE.
This agreement provides Customer access to and usage of an Internet-based software service, including, without limitation, its features, functions, and user interface, as specified on an order (Service). Implementation services (Implementation Services) may also be provided by SmarterSelect if specified under an order.
2. USE OF SERVICE.
a. Customer Owned Data. All data uploaded by Customer and its Representatives to the Service remains the property of Customer, as between SmarterSelect and Customer (Customer Data). Customer grants SmarterSelect the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service.
b. Access and Usage. Customer may allow its employees, contractors, applicants, and evaluators (Representatives) to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its Representatives.
c. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify SmarterSelect promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s use guide and applicable law.
d. SmarterSelect Support. SmarterSelect must provide Customer support for the Service (Support) as specified at www.smarterselect.com/pricing.
e. 30-Day Trial Version. If Customer has registered for a trial use of the Service, Customer may access the Service for a 30-day time period (unless extended by SmarterSelect in writing). The Service is provided ‘AS IS’, with no warranty during this time period. All Customer Data will be deleted after the trial period, unless Customer converts its account to a paid Service.
3. WARRANTY DISCLAIMER.
THE SERVICE IS PROVIDED ‘AS IS’ WITHOUT WARRANTY. SMARTERSELECT DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE SMARTERSELECT TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, SMARTERSELECT DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
4. PAYMENT.
Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
5. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). SmarterSelect’s Confidential Information includes, without limitation, the Service, its user interface design and layout, and pricing information. Customer’s Confidential Information includes, without limitation, the Customer Data.
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
d. Data Security Measures.
- Security Measures. In order to protect Customer’s Confidential Information, SmarterSelect: (i) implements and maintains all reasonable security measures appropriate to the nature of the Confidential Information including, without limitation, technical, physical, administrative, and organizational controls, and will maintain the confidentiality, security, and integrity of such Confidential Information; (ii) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly tests, or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designates an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (iv) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer’s Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assesses the sufficiency of any safeguards in place to control these risks (collectively, Security Measures).
- Notice of Data Breach. If SmarterSelect knows that Customer Confidential Information has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, SmarterSelect will promptly alert Customer of any such data breach, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. SmarterSelect will give highest priority to immediately correcting any data breach, and will devote such resources as may be required to accomplish that goal. SmarterSelect will provide Customer with all available information reasonably necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted, Customer may provide notice to any or all parties affected by any data breach. In such case, SmarterSelect will consult with Customer in a timely fashion regarding appropriate steps required to notify third parties. SmarterSelect will provide Customer with information about what SmarterSelect has done or plans to do to minimize any harmful effect of the unauthorized use or disclosure of, or access to, Confidential Information.
6. PROPERTY.
a. Reservation of Rights. The Service is the proprietary property of SmarterSelect and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with SmarterSelect. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. SmarterSelect reserves all rights unless expressly granted in this agreement.
b. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.
c. API. SmarterSelect provides access to its application-programming interface (API) as part of certain tiers of the Service. Subject to the other terms of this agreement, SmarterSelect grants Customer a non-exclusive, nontransferable, terminable license to interact only with the Service as allowed by the API.
– Customer may not use the API in a manner–as reasonably determined by SmarterSelect–that exceeds reasonable request volume, constitutes excessive or abusive usage, or fails to comply with any part of the API. If any of these occur, SmarterSelect can suspend or terminate Customer’s access to the API on a temporary or permanent basis.
– SmarterSelect may change or remove existing endpoints or fields in API results upon at least 30 days notice to Customer, but SmarterSelect will use commercially reasonable efforts to support the previous version of the API for at least 6 months. SmarterSelect may add new endpoints or fields in API results without prior notice to Customer.
– The API is provided on an AS IS basis. SmarterSelect has no liability to Customer as a result of any change, temporary unavailability, suspension, or termination of access to the API.
d. Anonymized Data. During and after the term of this agreement, SmarterSelect may use and owns all anonymized data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support, and other business purposes.
7. TERM AND TERMINATION.
a. Term. This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).
b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
c. Return of Customer Data.
- Within 60 days after termination, upon request SmarterSelect will make the Service available for Customer to export Customer Data as provided in Section 2(a).
- After such 60-day period, SmarterSelect has no obligation to maintain the Customer Data and may destroy it.
d. Return SmarterSelect Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay SmarterSelect for any unpaid amounts and destroy or return all property of SmarterSelect. Upon SmarterSelect’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
e. Suspension for Violations of Law. SmarterSelect may temporarily suspend the Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the Service, Customer has violated a law. SmarterSelect will attempt to contact Customer in advance.
f. Suspension for Non-Payment. SmarterSelect may temporarily suspend the Service if Customer is more than 30 days late on any payment due pursuant to an order.
8. LIABILITY LIMIT.
a. Exclusion of Indirect Damages. SmarterSelect is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.
b. Total Limit on Liability. Except for SmarterSelect’s indemnity obligations, SmarterSelect’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.
9. DEFENSE OF THIRD-PARTY CLAIMS.
a. SmarterSelect will defend or settle any third-party claim against Customer to the extent that such claim alleges that SmarterSelect technology used to provide the Service violates a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies SmarterSelect of the claim in writing, cooperates with SmarterSelect in the defense, and allows SmarterSelect to solely control the defense or settlement of the claim. Costs. SmarterSelect will pay infringement claim defense costs it incurs in defending Customer, SmarterSelect-negotiated settlement amounts, and court-awarded damages. Process. If such a claim appears likely, then SmarterSelect may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If SmarterSelect determines that none of these are reasonably available, then SmarterSelect may terminate the Service and refund any prepaid and unused fees. Exclusions. SmarterSelect has no obligation for any claim arising from: SmarterSelect’s compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Data; or technology or aspects not provided by SmarterSelect. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND SMARTERSELECT’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
b. If a third party claims against SmarterSelect that any part of the Customer Data is unlawful or infringes or violates that party’s patent, copyright, or other right, Customer will defend SmarterSelect against that claim at Customer’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer, provided that SmarterSelect promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.
10. GOVERNING LAW AND FORUM.
This agreement is governed by the laws of the State of Texas (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Dallas County, Texas, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
11. OTHER TERMS.
a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by SmarterSelect.
b. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
c. Independent Contractors. The parties are independent contractors with respect to each other.
d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
f. No Additional Terms. SmarterSelect rejects additional or conflicting terms of a Customer’s form-purchasing document.
g. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
h. Survival of Terms. Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
i. Feedback. If Customer provides feedback or suggestions about the Service, then SmarterSelect (and those it allows to use its technology) may use such information without obligation to Customer.
Last Revised September 25, 2019.